The Ninth Circuit Court of Appeals delivered a major victory to the Trump administration on Monday, permitting National Guard troops to be deployed to Portland, Oregon, to protect immigration operations.
The Lawsuit
After more than three months of turmoil and attacks at a U.S. Immigration and Customs Enforcement (ICE) facility in Portland, the Department of Homeland Security requested immediate and sustained assistance to safeguard federal personnel, facilities, and operations in the state of Oregon from the Department of War on September 26.
The next day, President Donald Trump confirmed on Truth Social that he had directed Secretary of War Pete Hegseth to “provide all necessary troops to protect war-ravaged Portland.” Some 200 members of the Oregon National Guard were called into federal service on September 28 for a period of 60 days.
The city of Portland and the state of Oregon wasted no time filing a lawsuit. And despite the case being assigned to the Trump-appointed Judge Karin Immergut, plaintiffs won a temporary restraining order (TRO) prohibiting the federalization and deployment of members of the Oregon National Guard.
In response, the Trump administration tried to capitalize on the words “Oregon National Guard” and instead sent 100 members of the already federalized California National Guard to Portland, with plans to send more, possibly from Texas and other states.
Judge Immergut then issued a second TRO to stop the president from deploying any federalized members of the National Guard to Oregon. She ruled that Trump likely exceeded both his statutory and constitutional authority in sending the National Guard to Portland.
The Appeal
As reported on Tuesday’s AM Update, the Trump administration chose to appeal the first TRO because it believed Judge Immergut would be required to dissolve both of them if the feds prevailed since they relied on the same legal reasoning.
By a 2-to-1 vote, the court sided with Trump’s Department of Justice and issued a stay on Judge Immergut’s ruling. “We conclude that it is likely that the president lawfully exercised his statutory authority… which authorizes the federalization of the National Guard when the ‘president is unable with the regular forces to execute the laws of the United States,’” the majority opinion read. The judges determined the evidence the president relied on reflects a “colorable assessment of the facts and law within a ‘range of honest judgment.'”
The two judges in the majority – Judges Bridget Bade and Ryan Nelson – were both appointed by Donald Trump during Trump 1.0. Though the Ninth Circuit has been traditionally dominated by liberal judges, the first Trump administration helped to change that. It is now more ideologically balanced with 16 Democrat-appointed judges and 13 Republican-appointees, thus increasing the president’s chances of getting a fair hearing before this court.
Judge Susan Graber, a nominee of President Bill Clinton, issued a blistering dissent. “Today’s decision is not merely absurd,” she wrote. “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.”
What Comes Next
Lawyers for Oregon and Portland immediately asked for an en banc re-hearing (i.e. another appeal before the Ninth Circuit’s chief judge and 10 randomly selected judges). An unnamed judge on the Ninth Circuit also called on the court to vote on whether to hold an en banc hearing.
Lawyers on both sides have until midnight Wednesday to file arguments on whether there should be such a re-hearing. Regardless, Monday’s decision is unlikely to be the last word on this issue. Judge Immergut scheduled a trial on the full case beginning October 29.
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