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constitution
With Troop Deployments in US Cities, Trump Has Picked a Fight With the Constitution
He wants the US Supreme Court to legitimatize these unlawful deployments. Heaven help us all if they do.
Oct 24, 2025
President Donald Trump’s ICE raids in American cities are not simply efforts to deport undocumented immigrants or battle crime. In addition to creating fear and desensitizing law-abiding citizens to a military presence on American streets, Trump wanted to pick a fight.
And he has.
Specifically, Trump wanted a legal fight that he could take to the conservative majority on the US Supreme Court. If it accepts his justification for “federalizing” the National Guard over a state governor’s objections, he’ll have unrestrained power to deploy the military on American soil any time, any place, and for any reason.
The implications are staggering. Fear has gripped neighborhoods where armed troops patrol the streets as something akin to an occupying force. During the 2026 midterm elections, deployments would be a powerful voter suppression tool.
Trump’s Legal Argument
In the cases challenging Trump’s National Guard deployments in Los Angeles, Portland, and Chicago, his lawyers have argued that the courts have no power to review the President’s decisions. His claimed factual basis is not subject to challenge. His decision is final. His authority is absolute.
Trump bases his argument on language in an 1827 case involving Jacob Mott, a state militiaman. Mott refused to report for duty when President James Madison called up the New York militia during the War of 1812. The Supreme Court ruled that Mott had no right to dispute the president’s judgment.
Trump has appealed to the Supreme Court, where the conservative majority has a track record of giving Trump anything he wants.
Extrapolating the language of that case involving a subordinate militiaman during a time of war to foreclose all judicial review of the factual basis for Trump’s deployments is a stretch. But one appellate court judge in the ongoing ICE cases has embraced Trump’s position.
California
In June, Trump mobilized the National Guard over the objections of Gov. Gavin Newsom (D-Calif). The president invoked the statute authorizing him to “federalize” the Guard, which permits such action only if:
(1) theUnited States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;
(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or
(3) the President is unable with the regular forces to execute the laws of the United States.” (10 U.S.C. Sec. 12406)
Trump claimed that the factual circumstances entitled him to invoke subsections (2) and (3).
The trial court granted Newsom’s request for a temporary restraining order, and the Trump administration appealed. Trump’s primary argument was that he had unrestrained discretion to make the required statutory determinations (i.e., whether there was a rebellion, danger or rebellion, or inability with regular forces to execute federal law). Whatever he decided should be the beginning and the end of the inquiry. Actual facts contradicting his claims were out of bounds. Judges couldn’t scrutinize his justifications. No one could.
The Ninth Circuit Court of Appeals (including two Trump appointees on the three-judge panel) rejected Trump’s argument. The court ruled that the president’s power is not absolute, but he is entitled to “a great level of deference” in making the required factual determinations.
Portland
When Trump deployed troops in Portland, Oregon, the city and the state sued to block him, and he made the same argument. Federal District Court Judge Karin Immergut—a Trump appointee—followed the appellate court’s earlier California decision and rejected it.
Judge Immergut’s 31-page opinion set forth her factual findings and legal conclusions. She outlined the evidence that rebutted Trump’s claimed “facts.” The court acknowledged that “the President is certainly entitled ‘a great level of deference’... But ‘a great level of deference’ is not equivalent to ignoring the facts on the ground… The President’s determination was simply untethered to the facts.”
Judge Immergut granted the motion to prevent the deployment.
Reversed on Appeal
Under well-settled law, Judge Immergut’s ruling could be reversed on appeal only if it was an “abuse of discretion”—which it wasn’t. The appellate court had to accept her factual findings as true, unless they were “clearly erroneous”—which they weren’t.
But in a two-to-one vote, the Ninth Circuit Court of Appeals reversed Judge Immergut’s ruling. Rather than respect the trial court’s detailed factual findings, the Trump-appointed majority discarded them in favor of its own characterization of the record.
Ironically, the court concluded, “[T]he district court erred by placing too much weight on statements the President made on social media.”
Judge Ryan Nelson—one of two judges comprising the majority that reversed Judge Immergut—accepted Trump’s primary argument. In his concurring opinion Judge Nelson wrote that “the President’s decision in this area is absolute.”
Facts and evidence don’t matter. Everyone has to take Trump at his word—a remarkable empowerment of a serial liar.
The dissenting opinion of Judge Susan Graber, a Clinton appointee, returned to the facts:
Given Portland protesters’ well-known penchant for wearing chicken suits, inflatable frog costumes, or nothing at all when expressing their disagreement with the methods employed by ICE, observers may be tempted to view the majority’s ruling, which accepts the government’s characterization of Portland as a war zone, as merely absurd. But today’s decision is not merely absurd. It erodes core constitutional principles, including sovereign States’ control over their States’ militias and the people’s First Amendment rights to assemble and to object to the government’s policies and actions.
Judge Graber pleaded for additional scrutiny of the majority’s errant decision:
By design of the Founders, the judicial branch stands apart. We rule on facts, not on supposition or conjecture, and certainly not on fabrication or propaganda. I urge my colleagues on this court to act swiftly to vacate the majority’s order before the illegal deployment of troops under false pretenses can occur.
That process—a request for en banc review by 11 randomly-selected judges in the Ninth Circuit—is underway.
Chicago
Meanwhile, the Seventh Circuit Court of Appeals affirmed unanimously a trial judge’s order blocking Trump’s deployment of the National Guard in Chicago. As in Los Angeles and Portland, Trump argued that the courts had no role in reviewing his factual determinations. The court—including a George H. W. Bush appointee, a George W. Bush appointee, and an Obama appointee—rejected Trump’s argument.
Unlike the majority in the Portland appeal, the court accepted the lower court’s factual findings and applied them:
Political opposition is not rebellion. A protest does not become a rebellion merely because the protestors advocate for myriad legal or policy changes, are well organized, call for significant changes to the structure of the US government, use civil disobedience as a form of protest, or exercise their Second Amendment right to carry firearms as the law currently allows.
Nor did the activity surrounding the ICE facility render federal officers incapable of executing the laws of the United States.
Trump has appealed to the Supreme Court, where the conservative majority has a track record of giving Trump anything he wants. As of September 22, he had won 21 cases on the Court’s “shadow docket” where little or no reasoning accompanied quick decisions granted on a “preliminary” basis (even though the impact often was profound and enduring). His administration had lost only two, with two others pending. Two were withdrawn and was one dismissed.
In asking the Supreme Court to intervene, Trump’s lawyers called the Seventh Circuit’s ruling part of a “disturbing and recurring pattern” that “improperly impinges on the President’s authority and needlessly endangers federal personnel and property.”
None of that is true. The only “disturbing and recurring pattern” is Trump’s false assertions to justify deploying the military on American soil. And now he wants to prevent anyone challenging him—ever.
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Trump Pushes Blatantly Unconstitutional Plan for New Mid-Decade Census
"Donald Trump has no power to alter either the timing or who is counted," said one prominent elections attorney.
Aug 07, 2025
U.S. President Donald Trump on Thursday pushed for a new census to be drawn up in a move that would flatly violate the United States Constitution, which states explicitly that the census shall be conducted once every ten years and shall count all people within each state.
In a post on his Truth Social page, Trump said that he had "instructed our Department of Commerce to immediately begin work on a new and highly accurate CENSUS based on modern day facts and figures and, importantly, using the results and information gained from the Presidential Election of 2024."
The president then added that "people who are in our Country illegally WILL NOT BE COUNTED IN THE CENSUS."
Many constitutional law experts, however, were quick to point out that Trump lacks any kind of power to demand the creation of a mid-decade census that excludes undocumented immigrants under the United States Constitution.
Anthony Michael Kreis, a professor of constitutional law at Georgia State College of Law, wrote on X that the "Constitution's text is plain" regarding the census and it doesn't allow for anything resembling Trump's plan to exclude undocumented immigrants from the count.
Kreis specifically pointed to the changes to the census made by the 14th Amendment, which demands that the census count "the whole number of persons in each State," as a legal dagger in the heart of Trump's scheme.
"The 14th Amendment's mandate that the census 'count[s] the whole number of persons in each State' governs us in no uncertain terms," he argued.
Elections attorney Marc Elias similarly dismissed Trump's plan as a flagrant violation of the Constitution.
"The Constitution dictates that the census is a count [of] 'all persons' conducted every 'ten years,'" he wrote on Bluesky. "Donald Trump has no power to alter either the timing or who is counted."
The United States Supreme Court in 2019 blocked the first Trump administration from adding a question about residents' citizenship to the 2020 census, and it's not clear how Trump's order for a new census excluding undocumented immigrants would be different from his prior attempt.
In addition to questions of constitutional legality, Trump's plan also has issues when it comes to sheer logistics.
Michael McDonald, a political scientist at the University of Florida, argued that Trump's plan is wildly impractical given the resources and time needed to successfully conduct an accurate census.
"Just from a logistical standpoint it is not feasible to conduct a 'new' mid-decade census with accuracy," he wrote on Bluesky. "To give a sense of the scale of what is required, preparations are already underway for the *2030* census. This will add chaos to the Census Bureau and degrade the accuracy of the 2030 census."
CNN political reporter Aaron Blake also noted on X that it's unclear that excluding undocumented immigrants from the census would even be much of a political boon for the GOP. As evidence, Blake pointed to a 2020 estimate from Pew Research Center projecting that Republican-controlled states such as Florida and Texas would each lose a seat if their undocumented immigrant populations weren't counted, which would balance out projected GOP gains in Alabama and Ohio under such circumstances.
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Judicial Nominee Bove Deemed 'Unfit' Over Answers on Jan. 6, Third Trump Term
"His words and actions show he is loyal to Donald Trump—not the Constitution," said one progressive advocate.
Jul 11, 2025
Emil Bove, a former attorney for U.S. President Donald Trump who has been nominated to serve as a judge on the U.S. Court of Appeals for the 3rd Circuit, was denounced as "unfit" on Friday due to answers he gave on a Senate questionnaire.
As reported by CBS News, Bove on the questionnaire declined to rule out Trump being allowed to run for a third term even though the 22nd Amendment of the United States Constitution explicitly says that "no person shall be elected to the office of the president more than twice."
Rather, Bove declined to directly answer questions about Trump's eligibility for a third term and wrote that "as a nominee to the Third Circuit, it would not be appropriate for me to address how this Amendment would apply in an abstract hypothetical scenario."
Additionally, Bove declined to condemn the deadly riots at the United States Capitol building on January 6, 2021, in which Trump supporters violently attacked law enforcement officers and sent lawmakers fleeing for their lives. Instead, Bove asserted that "the characterization of the events on January 6 is a matter of significant political debate," and thus it would be "inappropriate to address this question."
Hundreds of Trump supporters were convicted of crimes related to the Capitol riots, although they were all given a blanket pardon by the president immediately after he returned to office earlier this year.
Progressive advocacy organization Stand Up America said that the results of the questionnaire left no doubt about Bove's unfitness to be a judge on the powerful Third Circuit.
"Emil Bove has no business on the federal bench. His words and actions show he is loyal to Donald Trump—not the Constitution, not the rule of law, and certainly not the American people," said Christina Harvey, the executive director of Stand Up America.
"Last month, over 5 million people took to the streets to remind the Trump administration that we don't have kings in America," added Harvey. "Bove apparently missed the memo, and the day they taught the Constitution in law school. Bove is unfit for a lifetime appointment to one of the most powerful courts in the country, plain and simple. The Senate must reject his nomination."
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