The Trump administration’s orders to deploy National Guard to cities led by Democrats continue to hit legal hurdles. Two cities—Portland and Chicago—have found themselves at the epicenter of this struggle and are now fighting the administration in court over these deployments. Steve Vladeck, legal expert and Georgetown Law professor, joins Jen to dissect the latest updates.
“The lower courts are doing a lot to protect their own authority,” Vladeck assures us as he and Jen discuss the key differences between the 9th Circuit and 7th Circuit court cases. Vladeck and Jen also explore what happens when the National Guard & Border Patrol are pulled away from their core mission to engage with ICE operations.
Editorial Update, 10/29/2025: Since the filming of this interview, the 9th circuit has agreed to rehear Oregon’s case against the Trump administration concerning the deployment of the National Guard in Portland. The court has reinstated the temporary restraining order against the Trump administration until the yet-to-be-scheduled hearing.
Steve Vladeck is a professor of law at the Georgetown University Law Center, and is a nationally recognized expert on the federal courts, the Supreme Court, national security law, and military justice. Make sure to keep up with Steve on his Substack One First here.
The transcript has been edited slightly for formatting.
Jen Rubin
Hi, this is Jen Rubin, Editor-in-Chief at the Contrarian. Delighted to have back Steve Vladek. Steve, how are you?
Stephen Vladeck
Oh, Jen, I am continuing to live the dream of someone who picked the wrong line of work.
Jen Rubin
Yes, more, constitutional law questions than any American thought he or she would ever learn, but that puts you in high demand. As of this moment, the Supreme Court has not decided to hear the government’s appeal from the Seventh Circuit. Meanwhile, what’s going on in the Ninth Circuit concerning the Portland case, the deployment of National Guard to Portland?
Stephen Vladeck
Yeah, so as we’re sitting here, you know, it’s about 4 o’clock on Tuesday afternoon, just for the folks who see this later, we might hear from the full Ninth Circuit, as early as later today, with regard to what’s gonna happen in Portland. Now, you know, the status quo as you and I sit here is nothing is happening in Portland, because there is, a second temporary restraining order from Judge Immergut, that was not the subject of the Ninth Circuit panel decision last week, that had, you know, sided by a two-to-one vote with the Trump administration. And so everything in Portland is frozen. There’s no current lawful deployment of National Guard troops there.
But a lot of folks are waiting to see if the full Ninth Circuit is actually going to signal that it wants to keep things frozen, at least for now. And, you know, that is likely to come before we hear from the U.S. Supreme Court in the related but distinct Chicago case.
Jen Rubin
Now, when you say nothing is going on in Portland, that’s quite literal. There is nothing going on. We have our own reporter, Tim Dickinson, who is there, and the streets are virtually empty. There are a couple cartoon character costume people, you know, walking around.
How is it that that three-judge panel found that there was any basis for deploying the National Guard, and what struck you about the dissent, in that case, not by a bomb-throwing judge by any stretch of the imagination, that was really fairly unusual, fairly remarkable.
Stephen Vladeck
Yeah, so, the majority opinion, was basically taking the government’s arguments on the merits about as deferentially as you could, while still conducting even a modicum of judicial review and basically held that under this obscure statute, 10 U.S.C. Section 12406, the President is allowed to federalize the National Guard whenever he’s unable, with the regular forces, to execute federal law.
And the panel concluded that the president’s determination that, you know, the protests in Portland were interfering with ICE operations, was enough to satisfy that provision. I think that’s at least doubly wrong, and it might even be triply wrong.
So, you know, the first and sort of threshold point is, as the district judge in the Illinois case explained, regular forces is not a reference to civilian law enforcement authorities, it’s a reference to the Army. Right? And that statute’s only supposed to be used when the President needs the National Guard on top of the Army, which he hasn’t called out yet. So, that’s the first problem. The second is, you know, if it’s enough to trigger that statute, that the federal government has to devote any resources away from law enforcement operations, then that would mean any protest, where presumably the federal government would deploy additional personnel purely in a security function would allow the president to call out the National Guard? That can’t be right. And even on a higher standard, Jen, as you note, you know, the video evidence out of Portland, and this is what Judge Immergut specifically found, really doesn’t support the government’s portrayal of how its operations have been impeded.
And so, we have sort of different layers of problems with the majority opinion. So you mentioned the dissent. The dissent is by Judge Susan Graber, who is a, you know, a Clinton appointee, but really among the most moderate, and I mean that both ideologically and temperamentally, of any of the judges on that court. And, you know, her dissent was really a stem winder, and indeed it concludes with this remarkable passage where she asks the readers to have faith in the courts for a little while longer.
Which, you know, I think everyone reacted to that passage differently. I took that as Judge Graber saying, you know, not that we’ve done stuff to this point that deserves your faith, but don’t give up on us yet. But also that she was very much writing that opinion not just for people like you and me, but for her colleagues on the en banc court. And that’s why I’m going to be really interested to see what happens when we learn the results of the vote, maybe as soon as tonight, on whether the full court’s gonna rehear even this interim question of whether Judge Immergut’s temporary restraining order should or should not be allowed to remain in effect.
Jen Rubin
Now, we have talked a lot about deference, about finders of fact, which are the lower court, the lowest courts, the district courts. And in this court, in this case, the district court essentially said, the government’s lying, I don’t believe these declarations, it’s a bunch of hooey. Well, let’s move over to Chicago.
Chicago, the judge there, Judge Ellis, very good federal court, judge, heard testimony that federal officials were essentially, being abusive. They were using tear gas, irritants, rubber bullets, they didn’t have their body cameras on, and so she issued a TRO that was negotiated between the parties.
Fast forward, there’s a lot of evidence that the government is not abiding by it. So she called the government back, for some testimony. She heard testimony last week, and again, as we talk about this on Tuesday, she heard more testimony. What happened there, and what struck you about that proceed?
Stephen Vladeck
A lot strikes me about what Judge Ellis is doing. I mean, I think it’s a really good reminder that we focus on these National Guard cases understandably, but sort of, we shouldn’t focus on them to the exclusion of what ICE is doing. And that, you know, I am certainly gonna sort of sound the alarms about over-federalizing our military presence. But even without the National Guard, there’s still ICE.
And, you know, the ICE question is not about its authority. No one disputes that ICE has the authority to enforce our immigration laws. The question is the means by which they’re doing so. And so the lawsuit before Judge Ellis in Chicago, I think, is the most aggressive example we’ve seen yet of folks trying to basically force ICE to follow the rules, and, you know, to not abuse protesters, and to identify themselves, and to wear body cams, and all of the like. And what was especially striking about the hearing on Tuesday morning was that she had ordered Gregory Bovino, who’s the head of the Border Patrol and basically the guy who’s behind so-called Operation Midway Blitz, to come testify in person.
I will say I’ve read a partial transcript of the hearing, and Bovino was not especially responsive, and seemed…how do I say it? Claimed to be unfamiliar with many of the more aggressive allegations and apparent evidence of ICE and CBP officers not complying with prior court orders. And so in response, right, Judge Ellis, and Bovino basically agreed, and agree in the same way that you agree to hand over money to a robber, right, agreed that Bovino is going to appear before her in person every weekday until the preliminary injunction hearing in that case, which is set to start next Wednesday. That’s, you know, that’s, how do I say? The legal term for that is unusual, that a significant federal official would be made to make daily reports in person to a federal judge.
It’s a sign, I think, of how pissed off Judge Ellis is. And it’s a good reminder that, for as much as folks are understandably down on, you know, the Supreme Court, for example, and its response to the Trump cases. The lower courts are still doing a heck of a lot to at least try to constrain what the government’s doing and to enforce and protect their own authority.
Jen Rubin
Absolutely. This kind of struck me as being instructed to remain after school for detention, for the next, several days.
Stephen Vladeck
For, like, a week. Which, you know, I don’t know about what’s true these days, but when I was in high school, if you had a week’s worth of detention, you had done something pretty wrong.
Jen Rubin
Exactly. Now, you mentioned, that we are now talking about the guy who’s heading this, operation, who is the head of custom and border patrol. That is a different entity than ICE, per se used to be in the good old days, like a year ago, that ICE did internal targeted investigations. They would get a warrant, they would find someone who had, either overstayed a visa or had come in illegally, and in the good old days, they went after people who had dangerous, criminal records.
The border folks used to be operating… I know this sounds shocking, but close to the border, at least within 100 miles, say. That does not seem to be the case. What’s going on? And legally, is there anything to prevent the border patrol from operating in Chicago, which is not near any border? It’s probably closer to the Canadian border than it is to the Mexican border?
Stephen Vladeck
I mean, so ironically enough, right, you know, the sort of the 100-mile rule is 100 miles from any border, not just the southern border. So we don’t know everything that’s going on, but from the media reports that surfaced today and over the weekend, it sounds like the administration is dissatisfied with the leadership, or was dissatisfied with what was the leadership of ICE, pretty striking, given what we’re seeing on the… ground, and basically pushed out almost the entire senior leadership apparatus of ICE, including the heads of a bunch of field offices, in favor of, you know, CBP and or Border Patrol personnel.
So, the administration has done this a lot. They’ve played fast and loose with sort of putting people into multiple jobs at once. You know, Todd Blanch is currently the acting librarian of Congress, just as a bizarre sort of example of all of this among you know, Marco Rubio is running, I think, 3 different agencies right now. That is all colossally stupid.
It is surely terrible policy. It’s not, I think, as obviously illegal as some of the other stuff that’s happening, and so there might be challenges to the, sort of, reallocations of authority here. I think the larger point is the message it sends, that even the bad stuff we’ve been seeing on, you know, online for weeks hasn’t been enough to satisfy the White House. And that maybe things are on their way to getting even worse, which is pretty striking, given where we are. If anything, I think that ratchets up the significance of cases like the one before Judge Ellis. And it increases the likelihood that we’re going to see copycat lawsuits, in other cities where there are, and has been significant ICE and now CBP presence, along those lines.
Jen Rubin
Now, you and I have often talked about this other body out there called the Congress. Now, yeah, I know, there’s… it’s Article 1 of the Constitution. They put it right up front, because it was supposed to be important. They allocated billions and billions of dollars to ICE, which now, according to the own administration, isn’t doing its job and needs to be replaced by something else. This seems to me to point to an appalling lack of curiosity, oversight, and responsibility on members of Congress. It’s their job, isn’t it, to figure out how the agencies are performing, who’s doing what, who’s overstepping, whether the money they have allocated to ICE is now wasted money, because apparently ICE isn’t doing the job the administration wants it to do.
What’s going on here?
Stephen Vladeck
I mean, I think most of that question was rhetorical, but, you know, to sort of… to put the point a little more finely, the reason why we don’t want one person running four agencies, and the reason why we don’t want, you know, CBP folks all of a sudden doing ICE’s job, is because they have their own job.
And, you know, part of what Congress would be worried about is not just whether the government money is going to waste, it’s whether the priorities that those folks are supposed to be focused on in their day jobs are now being neglected. And so it’s the, you know, in some respects, it’s the height of irony that an administration that has made such a big deal out of, you know, immigration problems and closing our border is now taking a ton of resources away from the border because ICE hasn’t been aggressive enough in our cities. You know, again, I think it’s just the latest symptom of the disease of having a supine congress.
Where at any other modern moment in American history, even members of the president’s own party would probably be pretty pissed off that the President was basically thumbing his nose at the legislature. And here, right, it’s Tuesday. And not only that. But, you know, the House would have to come into session to thumb its nose, and that would require the Speaker to seat, right, the Democratic representative from Arizona, who he keeps refusing to seat.
Jen Rubin
Now, there are two things that do seem to be working here, and we tend to, for good reason, focus on the President and Congress, who are supposed to, check one another, but you’ve talked a lot about the district courts, but the other part that seems to be functioning here is the independent press and ordinary citizens who seem to be collecting all of this information. We spoke to Lynn Sweet in Chicago, doing a really good job of making sure the public knows what’s going on.
This seems to me to have been an underplayed part of the process of checking a runaway executive, that ordinary citizens have to get in the game. The media has to do its job as well. Does that strike you as maybe a ray of sunshine in all of this? That you have, at least in Chicago, evidence of a very active citizenry?
Stephen Vladeck
Well, not just Chicago, I mean, here in Washington, you know, there are, you know, folks out on the street almost every night now, you know, trying to sort of warn their neighbors of ICE patrols, right? People are going out of their way to document on video, you know, anytime they see encounters with citizens and even non-citizens, right? I will add one more, which is, I think that, you know, a bunch of mostly Democratic-led states are also doing pretty good by the moment. You know, folks are going to have their own views about the personalities of Governor Newsom or Governor Pritzker, but, you know, from the perspective of sort of standing up for their sovereign authority and not kowtowing to the federal government.
I think it’s actually laudable just how much California and Illinois and Oregon, really have resisted, what the federal government’s trying to do in circumstances where Tennessee has not, where Louisiana has not. And, you know, I think that’s all to the good. Folks can have different views about how much principles of federalism should affect the relationship between the federal and state governments. I think we’re seeing in real time how, you know, federalism has, at least at extremes, the great value of giving us at least one other line of defense against a potentially authoritarian-curious federal government.
Jen Rubin
Well, I think we are seeing a fascinating study in all of those guardrails, some of them holding, some of them not holding, and we’re gonna see how all of that works out in Chicago, Portland, and elsewhere.
I will close on this. There may be an elsewhere, because Donald Trump keeps talking about sending more troops, sending more ICE people out. So what happens in Chicago, what happens in Portland, what happens in Los Angeles, and even in DC, will not stay in those cities. They will be a model, either for good or for bad, throughout the country.
Stephen Vladeck
And I think that’s why people like you and me are spending so much time paying attention to what’s happening in the en banc Ninth Circuit in the Oregon case, and the Supreme Court in the Illinois case, because those precedents are gonna matter—not just for this obscure National Guard authority, but for, you know, the legal authority that’s sort of looming over all of that, which is the power to just call out the army, under the Insurrection Act. And so, these cases are going to be really important markers, one way or the other, for not just what President Trump can do next, but what role the courts are going to play if and when that happens.
Jen Rubin
Absolutely. Well, as always, Steve, thank you. We keep seeing each other because we are in unprecedented times, but we will look forward to seeing you next time.
Stephen Vladeck
Look forward to it, Jen. Thank you so much.
