The next twist in the whipsawing drama over whether President Trump can send National Guard troops into Portland will center on the 9th U.S. Circuit Court of Appeals.
The result could come quickly, if a similar case that played out in California this year is an indication.
The Trump administration says that a federal judge “impermissibly second-guessed the Commander in Chief’s military judgments” when she blocked National Guard deployments in a pair of orders over the weekend.
In an appeal filed Sunday, the administration rehashes much of the arguments it made unsuccessfully before U.S. District Judge Karin J. Immergut: that persistent protests at a U.S. Immigration and Customs Enforcement facility constitute a rebellion that risks law and order.
“The order imposes irreparable harm by impinging on the ability of the President and the Secretary of War to use the National Guard to protect federal officials enforcing federal law,” reads a motion filed Sunday morning.
Trump’s press secretary, Karoline Leavitt, was more blunt on Monday.
“With all due respect to that judge, I think her opinion is untethered in reality and in the law,” Leavitt said. “The president is using his authority as commander in chief.”
The appeal was filed after Immergut issued a temporary restraining order blocking the Trump administration’s attempt to send Oregon National Guard troops to Portland. The judge subsequently broadened the order to guard members from other states, after Trump signaled he would send troops from California and Texas to Portland.
Attorneys with the U.S. Department of Justice are asking appeals judges to render the order moot while they schedule a hearing on whether it passes muster.
As it had in a lower court, the federal DOJ argues that protests in Portland have featured property destruction and safety risks for federal officers at the ICE building. Though the Trump administration says “violence has somewhat abated in the last month,” it argues it has been forced to shift 115 officers to the building, stretching resources elsewhere.
Attorneys for the state and city of Portland have responded, calling Trump’s efforts in Portland “part of a nationwide campaign to assimilate the military into civilian law enforcement.”
“I am hoping that the rule of law prevails here,” Oregon Gov. Tina Kotek said in an interview with NPR on Monday. “I assume that those hearings will start shortly and we’ll be watching... I think this is a wake up call for every state.”
The city and state argue that the facts on the ground in Portland are far more sedate than the “war-ravaged” picture Trump has painted repeatedly – a point on which Immergut agreed.
Trump nominated Immergut to the federal bench in 2018 and she was confirmed by the U.S. Senate in 2019.
Protests damaged the building in June, prompting the federal government to close the facility for weeks and board up its exterior.
But more recently, protests have typically featured just a small group of demonstrators and occasional skirmishes with federal troops. The city and state say those conditions do not meet legal standards for federalizing National Guard members.
“Defendants’ interpretation of [of the law] would empower the President to commandeer a state’s National Guard whenever members of the public merely opposed his authority or presented administrative difficulties for civil law-enforcement officials,” a reply from the city and state says. “That unchecked power could be deployed in any context, by any future president—not just where civilians are protesting immigration enforcement.”
The Trump administration and the state also disagree as to whether Portland police have responded adequately to assaults or property destruction outside the ICE facility.
The Portland Police Bureau said Monday it has arrested 36 people since nightly protests began in June. But the bureau says it has been forced to step up its presence since Trump called up the guard, resulting in nearly $100,000 in overtime pay in the three days following his announcement.
The city and state also argue that the nature of Immergut’s order – it lasts for only 14 days, though subject to possible extension – means that appeals court judges are unable to second-guess the decision.
Action could come quickly. While it was unclear early Monday afternoon when appeals judges might rule on the motion, they acted swiftly when Trump federalized the California National Guard earlier this year. At the time, large and sometimes violent protests over immigration crackdowns were playing out in Los Angeles.
In that case, a three-judge panel from the 9th Circuit blocked a judicial order that would have prevented a military deployment mere hours after it was issued. Thousands of National Guard members were ultimately sent to the city, along with hundreds of Marines.
The Trump administration argues the case in Portland is no different.
“This is far from ‘categorically different from the violent incidents’ in California that justified the federalization of the California Guard,” the appeal says, citing Immergut’s ruling. “Both situations involved physical threats against federal personnel—like arming protesters and throwing rocks, sticks, and explosives at federal officers.”
But attorneys for the state of Oregon and city of Portland say conditions in Los Angeles were dramatically different when appeals judges allowed the guard to go in – including protestors throwing Molotov cocktails, using dumpsters as battering rams, “pinning down” federal officers.”
“Congress never intended that relatively small, contained, and largely sedate protests would justify military intervention,” they wrote.
While the federal appeals court decides on the matter, 200 Oregon National Guard troops who’d been under the Pentagon’s control are back under the purview of Gov. Tina Kotek.
