Judge to rule by Monday on whether to alter order barring any National Guard troops in Portland

A federal judge in Portland signaled Friday that she could clear the way for Oregon National Guard soldiers to come to the city but still bar out-of-state troops for now.

U.S. District Judge Karin J. Immergut zeroed in on the question of whether she must honor an appeals court ruling that essentially ordered her to pause her first temporary restraining order banning the federal deployment of only Oregon troops to protect the U.S. Immigration and Customs Enforcement building in Portland.

Her second temporary restraining order a day later went further, barring President Donald Trump from deploying any National Guard troops from any state to the city.

Immergut held a 90-minute hearing by phone Friday on a motion by federal government lawyers asking her to throw out the second broader order or put a hold on it, in keeping with the 9th U.S. Circuit Court of Appeals ruling earlier in the week.

Immergut and lawyers from each side also discussed the possibility of the judge lifting part of her second order to allow the Oregon Guard - but not any out-of-state troops - to deploy to Portland.

Immergut said she would rule by Monday, if not earlier, on whether she will keep all or part of her second restraining order in place.

“I am working as fast as I can to get a decision that honors the 9th Circuit panel but takes into account some of the new arguments and information,” she said.

A three-judge panel of the 9th Circuit this past Monday found that the president is due significant deference and that his decision to mobilize 200 Oregon National Guard members for 60 days to Portland was a “measured response” to the protests.

Immergut issued her second order after Defense Secretary Pete Hegseth sent 200 California National Guard members to Oregon on Oct. 5 and mobilized another 400 Texas National Guard troops to deploy to Oregon and Illinois.

Jacob M. Roth, principal deputy U.S. assistant attorney general, argued that Immergut’s broader order “cannot continue to stand” because she said when she granted it that she followed the same legal reasoning as her first order.

He urged Immergut to rule immediately and pledged that any federal deployment of the National Guard to Portland would be limited to 200 troops.

Members of the Oregon Guard under federal control “are ready to go” as soon as Immergut lifts her second order, Roth said.

“We already won this in the 9th circuit,” he said. “We’re not trying to re-litigate.”

Immergut noted that though she used the same legal reasoning to back her second broader order, it dealt with different facts, namely the federal mobilization of potentially 600 more out-of-state National Guard troops to Oregon, and in apparent “contravention” of her order a day earlier blocked federal deployment of Oregon troops.

“The timing of it was certainly suspect,” the judge said.

Roth conceded the 9th Circuit did not consider the additional out-of-state troops but argued the appeals court was familiar with the second order. He said the appeals court was clear that Immergut’s second order “rises and falls” with the first order.

Hegseth’s mobilization of 200 California National Guard troops to Portland was intended “to be a replacement” for the 200 Oregon troops barred by the judge a day earlier, Roth said. And the other Texas National Guard troops mobilized for Oregon were to be “on standby,” called up to be “potentially available,” he said.

Roth also argued that there’s no reason for Immergut to treat the Oregon National Guard different from the federal deployment of any other National Guard. Since the 9th Circuit found that the president lawfully federalized Oregon National Guard troops to protect the ICE building in Portland, it shouldn’t matter which state supplies the Guard soldiers, he said.

Yet Immergut said the 9th Circuit panel never even considered the numbers of potential out-of-state troops that the federal government placed under its control from California or Texas.

Attorney Scott P. Kennedy of the Oregon Department of Justice urged the judge not to disrupt “a very fragile and critical status quo,” as she prepares to preside over a three-day trial that starts Wednesday on the merits of the state and city’s underlying lawsuit challenging the legality of Trump’s federal deployment of troops to Portland.

He urged Immergut to be cautious because lifting her broad order would have “potentially grave consequences on the eve of trial.”

Roth countered that the approach of a trial shouldn’t impact Immergut’s decision. “We are entitled to deploy” troops in the interim, he said.

If Immergut is inclined to follow the 9th Circuit’s ruling, Kennedy asked that she only permit deployment of the 200 Oregon National Guard members.

But Kennedy also asked that Immergut wait to take any action until the 9th Circuit panel considers the state’s request to dissolve its ruling based on new information - the alleged misrepresentation of facts the federal government provided to the appeals court.

When federal officials and lawyers claimed 115 Federal Protective Service officers had to be relocated to Portland to protect the ICE building amid nightly protests from June until now, that was false, the state’s lawyers contend.

Only a fraction of that number “was ever” in Portland at any given time, with 31 at the most in the city from July 15 through Aug. 12, lawyers from the state wrote in a letter to the 9th Circuit.

Immergut then asked the federal government’s attorney: “Why isn’t it premature to take action while that issue is before the panel for their consideration?”

Roth responded that Immergut must act on the 9th Circuit ruling that was issued earlier in the week and not wait to see what it might or might not do in response to the state’s letter.

He didn’t address the alleged mischaracterization, saying the federal government would respond to the state’s contention before the 9th Circuit.