Appeals court allows command of Oregon National Guard, deployment to Portland blocked for now

A federal appellate court on Monday allowed President Donald Trump to maintain federal control over the Oregon National Guard and deploy troops until the case is fully litigated in court.

But the ruling doesn’t mean troops will be on the ground immediately in Portland.

Lawyers for the state and city of Portland pledged to file a motion asking for swift reconsideration by a larger contingent of the 9th U.S. Circuit Court of Appeals.

“Today’s ruling, if allowed to stand, would give the president unilateral power to put Oregon soldiers on our streets with almost no justification. We are on a dangerous path in America,” Oregon Attorney General Dan Rayfield said in a statement.

Senior 9th Circuit Judge Susan P. Graber, the dissenting judge in a 2-1 split of the three-judge appeals panel, said the majority’s ruling will have no “practical effect” on actually sending troops to Portland because a second temporary restraining order remains in effect.

The second, broader order bars the president from sending any National Guard troops under federal control to Oregon.

Graber in a highly unusual move also urged her colleagues on the appellate court to “act swiftly to vacate the majority’s order before the illegal deployment of troops under false pretenses can occur.”

Taking Graber’s cue, one 9th Circuit judge later Monday called for a vote on whether to reconsider the panel’s decision.

By Monday afternoon, the federal government asked U.S. District Judge Karin J. Immergut to “dissolve,” or put a hold on her second order, and to do so without waiting for the state of Oregon’s response.

The 9th Circuit’s decision putting a hold on her first order “is a significant change in law that plainly warrants dissolution” of Immergut’s second broader temporary restraining order, a U.S. Justice Department lawyer wrote.

Gov. Tina Kotek urged the 9th Circuit to vote to reconsider the ruling quickly “because of the gravity of the situation.”

The majority of the three-judge panel found that President Donald Trump is due significant deference and that his decision to mobilize only 200 Guard members for 60 days to Portland was a “measured response.”

The two Trump-nominated judges on the panel, Bridget S. Bade and Ryan D. Nelson, found that the federal government is likely to succeed in its argument that there was a “threat of rebellion” outside the U.S. Immigration and Customs Enforcement building in Portland, one of the criteria required for the president to obtain control of Oregon National Guard troops.

“The district court substituted its own assessment of the facts for the President’s assessment of the facts,” the majority wrote.

They said Oregon U.S. District Judge Karin J. Immergut adopted an incorrect definition of “rebellion,” which was part of the government’s justification for calling in troops to help protect the ICE field office and officers there, and should have relied instead on historical tradition.

“Under that tradition, Founding Era Presidents used federal militias to quell domestic disturbances in cases the district court’s definition would render impermissible,” the majority wrote.

They also criticized Immergut for restricting her assessment of the conditions outside Portland’s ICE facility to a limited time leading up to Trump’s authorization of Guard members on Sept. 27, saying the plain text of federal law contained “no such limitations.”

Bade and Nelson found that Immergut improperly “discounted the violent and disruptive events that occurred in June, July, and August, including the resulting closure of the ICE facility for over three weeks in June and July … and focused on only a few events in September.”

The ICE building, situated in a South Portland residential and business district, was the scene of several large and tumultuous protests in June and July over the administration’s immigration crackdown. Over the next two months, there have been sporadic arrests during protests attracting about a few dozen people at a time, but the demonstrations picked up after Trump’s troop mobilization.

People wearing inflatable costumes of frogs and other animals have gained national attention for largely peaceful protests since. An emergency Naked Bike Ride passed by the building in support earlier this month. Hundreds of people converged at the ICE building after a large “No Kings” march Saturday and federal officers fired canisters of tear gas and pepper balls into the crowd.

The 9th Circuit panel majority also said Immergut was wrong “by placing too much weight on statements the President made on social media,” though it was the federal lawyer Eric Hamilton who first cited Trump’s Truth Social media post on Sept. 27 as justification for mobilizing the Oregon Guard. Trump in the post described Portland as “war ravaged.”

“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 majority wrote.

The majority further found that Immergut “minimized” the declarations from Homeland Security and Federal Protective Service officials. The two judges noted that the diversion of 115 Federal Protective Service officers to Portland to protect the ICE facility was “irregular and unsustainable.”

Graber, nominated by former President Bill Clinton, wrote a lengthy dissent.

“Permitting the illegal deployment of Oregon National Guard members is a direct affront to Oregon’s sovereignty,” she wrote. “The majority’s order abdicates our judicial responsibility, permitting the President to invoke emergency authority in a situation far divorced from an enumerated emergency.’’

She said the majority’s ruling on Immergut’s more narrow restraining order places a hold on it but doesn’t dissolve it – and that the hold “certainly does not require dissolution of the second” order.

She noted that Immergut granted the second order after the state of California joined in an amended suit with Oregon and followed newly submitted declarations to Immergut.

She reiterated Immergut’s finding that federal law is clear – that the president must be unable “at the present moment” to execute federal laws before placing state National Guard troops under federal control.

Graber said no assessment of the facts on the ground in Portland nor the law “can justify a conclusion that an emergency existed” when Trump authorized the Oregon mobilization.

“There is no evidence of organization or leadership, widespread use of arms, ferocity, or difficulty exerting control by ordinary means,” Graber wrote. “In sum, occasional illegal activity by such a small number of people in such a limited area is not at all akin to the Founding-era rebellions.”

Graber blasted the majority’s ruling, noting that its recitation of problems outside the ICE complex were pulled “almost entirely from four months ago.”

She also said the majority couldn’t find that the federal government would face irreparable harm absent a hold on Immergut’s order, because the federal government hadn’t appealed Immergut’s second temporary restraining order.

She not only urged an immediate review of the majority’s decision by her colleagues on the 9th Circuit, but also urged those “watching this case unfold” to “retain faith in our judicial system for just a little longer.”

“Partisans who cheer this President’s use of troops to protect personnel who are enforcing federal immigration laws would do well to consider whether they would be equally pleased if a future President uses troops to protect personnel who are enforcing laws that they vehemently dislike,” Graber wrote.

The 9th Circuit decision followed about 70 minutes of argument on Oct. 10 in which Nelson said he was perplexed that the city and district judge would have more knowledge on the challenges federal officers in the ICE building face than the federal government and president.

Bade said it appeared that Immergut penalized the president for “using the National Guard as a last resort rather than as a first resort.”

On Oct. 4, Immergut granted her first temporary restraining order barring Trump from sending the Oregon troops to Portland. She found that the Trump administration lacked any legal justification to mobilize troops, noting no threat of rebellion exists in Portland, that local police can handle the protests at the ICE building and federal officers are still able to enforce federal laws with “regular forces.”

Immergut ruled that Trump’s mobilization hadn’t met any of the criteria set out in federal law Title 10, Section 12406 that he cited to invoke his authority.

The federal government appealed to the 9th Circuit – and the next morning, Trump sent about 200 California National Guard members to Portland and planned to send Texas National Guard members to Portland as well.

The Oregon attorney general’s office scrambled to file an amended lawsuit adding the state of California as a plaintiff against the Trump administration and an emergency motion to block the out-of-state troops from federal service in Portland.

Immergut held an unusual Sunday night hearing by phone on Oct. 5 and granted a second temporary restraining order prohibiting the “relocation, federalization, or deployment of any National Guard” within Oregon.

Immergut last week extended her two temporary restraining orders for two more weeks and set an expedited three-day trial for Oct. 29 on the underlying lawsuit filed by Oregon and the city of Portland against Trump’s troop deployment.

The temporary orders have now been extended to Nov. 1, involving the Oregon National Guard, and Nov. 2, all National Guard deployments to Oregon.

Michael J. Gerardi, a senior counsel in the U.S. Justice Department, signaled last week that he would ask Immergut to dissolve both restraining orders if the 9th Circuit ruled in the federal government’s favor.

Immergut directed him to file a motion within 48 hours of the 9th Circuit ruling and gave the state and city 24 hours to respond to such a motion by the federal government.

By Monday afternoon, Senior 9th Circuit Judge Sidney R. Thomas requested a vote of the active circuit judges on whether the three-judge panel’s case should be reheard by 11 members of the appeals court, based on Graber’s dissent. He directed parties to the case to file briefs before midnight on Wednesday. Thomas serves as the court’s coordinator for what’s known as an en banc review.

An en banc reconsideration would be held if a majority of the 29 active regular service judges on the 9th Circuit vote for it. Then it would be assigned to a randomly drawn panel of 11 circuit judges.

The state’s lawyers would have to convince the majority of active judges that the three-judge panel was wrong, show there’s a split among federal circuits or that this is an issue of exceptional importance that warrants the second review, legal observers said.

If that request is denied, the state could push to convince Immergut to leave her second broader temporary restraining order in place, regardless of the 9th Circuit’s decision.

Robert Klonoff, a former Lewis & Clark Law School dean who also worked as an assistant to the U.S. solicitor general during the Reagan administration, said the single 9th Circuit judge’s move to call a vote for reconsideration is “extremely unusual.”

Judges rarely call for such an en banc vote and it’s rarely granted at the stage of a temporary restraining order, he said.

“The rapid timing is extraordinary,” Klonoff said. “All of this can be explained by Judge Graber’s emphatic request that the en banc court fix the problem quickly, and the importance of this issue, not only to Portland but to the entire country.”

Oregon’s governor, in a news conference by video , said the Oregon and California National Guard members mobilized remain in limbo.

“Until that second temporary restraining order is rescinded, troops cannot be deployed anywhere in Oregon at this point,” Kotek said.

She said she still would urge Trump to send the National Guard members home.

Oregon’s attorney general urged the public to have patience as the state takes every legal step to try to send the 200 mobilized Oregon National Guard troops home.

“As a community, we need to come together and help make sure they are sent home as soon as possible,” he said in a statement. “That means keeping Portland peaceful and safe while our fight in the court moves forward.”

The 9th Circuit’s ruling on the Oregon troop deployment comes amid a pending troop deployment case before the U.S. Supreme Court.

On Oct. 9, a federal judge in Chicago froze Trump’s attempt to deploy several hundred National Guard troops in and around Chicago, finding that his account of recent protests there wasn’t credible and that the protests nowhere resembled a “rebellion.”

The Trump administration last week petitioned the Supreme Court to weigh in after the 7th U.S. Circuit Court of Appeals found the president had failed to meet the requirements to federalize National Guard troops, ruling that a protest doesn’t rise to a rebellion. The appeals court also found that the sporadic disruptions outside an ICE facility about 20 minutes west of Chicago were “quickly contained by local, state, and federal authorities.”

The 7th Circuit allowed the president to federalize National Guard troops but not deploy them in Illinois.

On Monday, the state of Illinois filed its response to the Supreme Court, echoing the state of Oregon’s arguments: that local and state police have handled isolated protests, that no danger of rebellion exists and that the federal government hasn’t shown any basis to contend federal officials are unable to carry out federal law in the state.

Klonoff said he suspects that the federal government thought their case to bring troops to Illinois was the strongest and that’s why they petitioned the Supreme Court to intervene there.

“If the administration gets relief from the Supreme Court in Illinois, it’s a game changer for Oregon,” Klonoff said. “It will suggest how the Supreme Court is leaning, giving vast discretion to the president.”