Appeals court allows Trump to deploy National Guard troops to Portland
A federal appeals court on Monday said President Trump may deploy the National Guard across Oregon for now, a boon to his efforts to send troops into several Democratic-led cities.
The 2-1 ruling from a three-judge panel on the U.S. Court of Appeals for the 9th Circuit lifts a lower court order halting Trump’s deployment of National Guard members while the administration’s appeal is resolved.
The court previously let Trump resume control of Oregon’s National Guard.
“Rather than reviewing the President’s determination with great deference, the district court substituted its own determination of the relevant facts and circumstances,” the unsigned order read.
Oregon and Portland officials sued over Trump’s National Guard takeover last month after the president vowed to protect the “war-ravaged” city and its U.S. Immigration and Customs Enforcement (ICE) offices he said were “under siege.”
At Trump’s direction, Defense Secretary Pete Hegseth issued a memo on Sept. 28 authorizing the federalization and deployment of 200 Oregon National Guard members, despite Oregon Gov. Tina Kotek’s (D) objection.
U.S. District Judge Karin Immergut, a Trump appointee, blocked the administration from taking over the state’s National Guard, but the administration attempted to sidestep the order by calling in troops from other states. Immergut then blocked deployment of any National Guard troops across the state in a second order.
The appeals panel wrote Monday that Trump may have reasons for calling up the National Guard that were not shared publicly or tied solely to the scene on the ground in Portland.
“Even if the President may exaggerate the extent of the problem on social media, this does not change that other facts provide a colorable basis to support the statutory requirements,” the order reads.
The administration had argued that courts must give a “great level of deference” to the president’s determination to federalize the National Guard. The district judge found such deference is important. but not equivalent to “ignoring the facts on the ground.”
However, at a hearing earlier this month, where the panel heard arguments, the appellate judges seemed swayed by the administration’s contention that Trump’s reasoning for sending in the National Guard should not be questioned by the courts.
“I’m sort of trying to figure out how a district court of any nature is supposed to get in and question whether the president’s assessment of executing the laws is right or wrong,” said Judge Ryan Murphy, a Trump appointee.
Murphy later commented that the decision to send in the troops was an “internal” one, and that both small and large protests could impede Trump’s ability to execute the law.
Judge Susan Graber, an appointee of former President Clinton, wrote in a dissenting opinion that the demonstrations in Portland were “non-disruptive and small” in the weeks before Trump called up the troops.
She said that, despite “turbulent events” that occurred months earlier, the record contains “no evidence whatsoever” that ICE was unable to protect its facility or execute the law, meaning no legal or factual justification supported Trump’s order to federalize and deploy the Oregon National Guard.
“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,” Graber wrote.
“But today’s decision is not merely absurd,” she continued. “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. I strenuously dissent.”
On Wednesday, Immergut extended her temporary orders for another 14 days and set a three-day bench trial for Oct. 29, to consider whether a longer block is warranted.
Updated at 3:53 p.m. EDT