It’s been two and a half weeks since President Donald Trump posted on social media that he would send the military to Portland, setting off a legal battle that is now in the hands of four judges in two different courts.
The ongoing legal fight has implications for cities including Los Angeles and Chicago, where Trump has, or has attempted, to deploy National Guard troops to federal buildings. Trump has argued that protesters are impeding federal immigration officials from carrying out their orders, though the generally small and peaceful protests at an Immigration and Customs Enforcement facility in Portland don’t support his argument.
The state of Oregon and the city of Portland contend Trump violated several laws and the 10th Amendment of the U.S. Constitution by attempting to deploy Guard troops to Portland over the objections of state and local elected leaders. Each of these issues deals with the balance of state and federal power — particularly related to authority over policing within states — and the extent of presidential power over the U.S. military.
“It’s not just Portland. If the ruling is in favor of the Trump administration on this matter, then it means that the president can pretty much deploy the National Guard to any city where the president says they (the federal government) are unable to enforce federal law,” said Tung Yin, a law professor at Portland’s Lewis & Clark College.
In the meantime, a district judge in Portland and three appellate judges in San Francisco are considering stop-gap decisions that would block Trump and Defense Secretary Pete Hegseth from deploying Guard troops to Portland while everyone awaits an Oct. 29 trial.
U.S. District Court Judge Karin Immergut, a Trump appointee, could decide as early as Wednesday whether to extend for two more weeks temporary restraining orders she first issued on Oct. 4 and Oct. 5, that barred Trump from federalizing and deploying any National Guard troops to Portland.
If the orders are extended, that would continue to keep Guard troops out of Portland until the Oct. 29 trial and a final judgment from Immergut.
But another decision expected this week from three judges on the 9th Circuit Court of Appeals in San Francisco could end up nullifying Immergut’s orders altogether, opening the door for Guard deployment to Portland, said Willamette University professor Norman Williams, a constitutional law expert.
U.S. Appellate Judges Susan Graber, Ryan Nelson and Bridget Bade — the first a former Oregon Supreme Court Justice and Clinton appointee, and the latter two appointed by Trump — are expected this week to rule whether Immergut’s first order, which barred Trump from federalizing the Oregon National Guard, can stand.
More than that, they’ll decide whether the president has the authority to federalize the Oregon National Guard. Two of the three judges signaled in a hearing Thursday that they were deferential to giving the president the power to federalize those troops.
If the judges rule that Trump can federalize and control the Oregon Guard, it would be difficult for Immergut to restrain when and where they are deployed, Williams explained. It’s more likely that the federal government would, following the 9th Circuit ruling, ask Immergut to stay — or stop — legal proceedings.
“There’s no statutory basis that would allow her to say, ‘They’ve been properly federalized, but I’m going to order them to barracks. They can’t be deployed outside the barracks.’ I don’t think that’s a possibility,” Williams said.
This, he added, is why Oregon has also argued that Trump is violating the Posse Comitatus Act, which bars federal troops from undertaking domestic law enforcement. It’s a longer strategy should higher courts rule that Trump can control and deploy the Oregon National Guard.
“So the federalization is just the first step, but the state would still have arguments about: ‘Have they been used in an appropriate fashion?’ And that would depend on what he (Trump) actually does with them,” Williams said.
Both Yin and Williams said that if the Ninth Circuit hands the power to federalize the Oregon National Guard to Trump, it’s likely attorneys for Oregon will request a fuller review, called an en banc court, by 11 appellate judges across the Ninth Circuit, which spans Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon and Washington.
Those judges would decide if the three appellate judges in California ruled erroneously.
Until then, however, Trump could likely deploy the federalized Guard troops.
If the appellate judges rule that Immergut’s orders and justification for them are valid, then the current state of affairs will remain unless the federal government asks for an emergency hearing before the U.S. Supreme Court.
“The Supreme Court hasn’t talked about National Guard federalization in almost two centuries,” Williams said. “This just doesn’t come up in part because presidents don’t do it in politically contentious ways that are going to spur likely litigation over it.”
Immergut on Wednesday will also decide whether to grant the federal government a new request that, if the state’s case against them moves forward in Oregon, it be delayed by a month until “at least” Nov. 20, rather than Oct. 29.
On Monday, Michael Gerardi, a lawyer for the U.S. Justice Department, wrote in a joint-status report that federal lawyers need more time to collect, review, redact and produce documents that Oregon’s lawyers have requested.
In that report, Gerardi also argued that because the president is granted great deference in his powers, that lawyers for Oregon should not be entitled to communications they’ve sought from the White House that would reveal more clearly what Trump and other leaders were discussing regarding Portland before Trump made his social media post.
