District Court Judge Karin Immergut’s adroit opinion blocking the administration’s plan to deploy National Guard troops to Portland, Oregon, offers a model for how courts should handle the Trump administration’s many assertions of “emergency power.”
Immergut, a Trump appointee, faced the recurring judicial dilemma of the Trump era: how to deal with a president who lies about the conditions that he claims justify granting him extraordinary power. Trump has been prodigal in invoking “emergencies”—at the border, in cities, even in cyberspace—but nearly all have rested on transparent falsehoods. There has never been an “invasion” of marauding immigrants, or a fentanyl “siege,” or a crime wave in Washington sufficient to justify federal deployment. Each supposed emergency has been a pretext for asserting powers Congress never gave him. The pattern is as consistent as it is brazen: declare a crisis, invent the facts to match, and dare the courts to stop him.
The tricky question for the courts—one that supersedes politics and party—is how to evaluate the assertions of such a chronic fabulist when the law presumes a good-faith president. Doctrines of deference—judicial respect for an executive’s factual determinations—make sense when that presumption holds. But with Trump, it clearly doesn’t.
That’s the backdrop for Immergut’s decision. Trump invoked 10 U.S.C. §12406—which allows presidents to call in the National Guard of any state to “repel” an “invasion” or “suppress” a “rebellion”—claiming Portland was “war-ravaged” by “antifa and other domestic terrorists.” He called the city’s residents “professional agitators” and “crazy people” trying to “burn down federal buildings.” Aide Stephen Miller piled on, calling it an “organized terrorist attack” that made military intervention “an absolute necessity.”
The state of Oregon and the city of Portland sued, explaining the obvious: There was no rebellion or threat to public safety. Local law enforcement was handling sporadic vandalism. They argued that Trump exceeded his statutory authority, violated the Tenth Amendment that gives states broad powers to handle their affairs, and trampled basic separation-of-powers principles.
The administration replied that the president had “determined” that Portland met §12406’s criteria and that courts must defer to that determination. This was not a new strategy. In Newsom v. Trump, California Governor Gavin Newsom’s lawsuit against Trump’s federalization of the California National Guard, Judge Charles Breyer had considered the same issue and found Trump’s invocation of the statute legally defective. But the Ninth Circuit reversed him, declaring that presidential determinations under §12406 deserved a “highly deferential” standard of review—without explaining what that meant.
Immergut inherited that fuzzy command and met it with clarity, modesty, and backbone. Her opinion is a model of calm judicial courage.
First, she dismantled the factual predicate. The record, she wrote, showed that protests at the Portland ICE facility were “not significantly violent or disruptive.” They were small, scattered, and far from the “rebellion” Trump described. Oregon’s Tenth Amendment and statutory claims succeeded because, on any fair reading, Trump’s actions had no legal or factual foundation.
Then came the key move. Immergut acknowledged that courts owe the president “significant deference.” But, she continued, “‘a great level of deference’ is not equivalent to ignoring the facts on the ground.” Courts must ensure that presidential determinations “reflect a colorable assessment of the facts and law within a range of honest judgment.”
Trump’s determination, she concluded, failed even that minimal test. The supposed “rebellion” in Portland was no rebellion at all. “Defendants have not proffered any evidence,” she wrote, “that those episodes of violence were part of an organized attempt to overthrow the government.” His claim of emergency was “simply untethered to the facts.”
In straitlaced judicial prose, that’s as close as one can come to calling the president a liar.
Moreover, doctrines of deference exist in a tripartite system of government in which the executive has a coordinate responsibility to respect the determinations of the courts. But as they have repeatedly, Trump and the administration made clear they don’t have that sort of reciprocal respect in mind. In the wake of Immergut’s orders, the feds actually increased their presence and provocations, augmented with the use of gas, pepper balls and flash-bang grenades to send demonstrators scattering.
Immergut had to convene an emergency hearing Sunday night at which she told DOJ lawyers that the president was “in direct contravention” of her order. She stiffened the terms to cover “the relocation, federalization, or deployment of members of the National Guard of any state or the District of Columbia in the state of Oregon.” A fight is clearly brewing.
The principle of Immergut’s opinion is of paramount importance today. “Deference” implies giving the president the benefit of the doubt. But where there is no doubt, there can be no benefit. Immergut refused to credit assertions with no basis in the record. She didn’t grandstand or sermonize; she simply applied the law to the facts. In doing so, she offered a clear path for other judges confronted with Trump’s fabricated emergencies: respect the presidency, not the president’s lies.
If courts follow her example, they can begin to contain the metastasizing notion that presidential power grows in proportion to bad faith. The judiciary’s role is not to assume the truth of the president’s fantasies but to ensure that factual predicates for emergency powers are real. And when district judges, who see witnesses and evidence firsthand, make those credibility determinations, appellate courts should defer to them—not to executive fiction.
Immergut’s opinion also points to a broader truth about this political moment. The Trump administration has treated emergency declarations as political weapons—a way to bypass Congress and claim martial authority whenever convenient. If courts treat those declarations as sacrosanct, we edge toward a regime where truth itself becomes subordinate to presidential whim.
Immergut’s cool, understated opinion offers an exit from that thicket. It shows that the judiciary still possesses ordinary, apolitical tools to disable Trump’s most dangerous moves. Fidelity to fact, she reminds us, is fidelity to the Constitution.
That’s why her decision matters so deeply. In a season of creeping authoritarianism, Immergut’s opinion shows that courage in judging doesn’t require rhetoric or defiance—only the quiet insistence that facts still matter. “Deference” cannot be an automatic pass to lawlessness and bypassing of constitutional rights. If courts wield the label of “deference” to greenlight emergency powers based on lies, the law becomes an ass. Immergut’s opinion lights the way out.
