In an emergency motion filed Sunday with the United States Court of Appeals for the 9th Circuit, attorneys for the U.S. Department of Justice said Immergut’s order effectively second-guessed military judgements by the commander in chief, “something district courts lack the authority and competence to do.”
Federal law allows the president to federalize the National Guard under certain circumstances, such as an inability to execute the law using regular forces, a foreign invasion, or in cases of a rebellion or threat of one.
“The President’s determination was plainly lawful,” attorneys for the Trump administration argued Sunday. “The district court nonetheless issued a permanent injunction barring federalization and deployment of the Oregon National Guard or Guardsmen from any other state to Portland.”
The arguments were strikingly similar to those made by Justice Department lawyers since October in a long running legal dispute over federalized National Guard members. Attorneys for the government also argued Immergut “wrongly downplayed” the conditions outside the ICE facility in Portland.
“The court acknowledged large-scale violent protests in June, but treated them as irrelevant to the President’s determination just a few months later,” they argued.
In her order from earlier this month, Immergut found Trump “did not have a lawful basis to federalize the National Guard” and doing so violated states’ sovereignty.
Immergut also called any violence directed at federal law enforcement officers outside the facility “unacceptable.” The evidence presented during last month’s three-day trial showed after a few days in June those instances dropped off dramatically, she concluded.
“The occasional interference to federal officers has been minimal, and there is no evidence that these small-scale protests have significantly impeded the execution of any immigration laws,” Immergut wrote in her permanent injunction.
The Sunday filing by the Justice Department also revealed the federal government plans to extend the Oregon National Guard troop mobilization.
“Previously, the Oregon National Guard members were scheduled to remain on Title 10 orders until November 26, but the Department of War intends to extend this mobilization,” Brigadier General Carrie L. Perez, with the Army National Guard, wrote in a sworn declaration filed as part of the Trump administration’s emergency appeal.
“I understand that the Oregon National Guard members will be demobilized despite the Department of War’s intent for those members to remain on Title 10 orders unless the district court’s injunction is subject to a further stay,” she stated.
Perez also stated the demobilization process for troops “necessitates transporting guardsmen to a designated site in Texas” for medical and other screenings.
The Trump administration’s appeal came the same weekend it became clear the number of National Guard troops in cities like Portland and Chicago will be declining.
U.S. Northern Command, which oversees the federalized Oregon National Guard troops, announced Nov. 14 it would be “rightsizing our Title 10 footprint in Portland, Los Angeles and Chicago to ensure a constant, enduring, and long-term presence in each city.” Several sources confirmed to OPB that the roughly 200 federalized California National Guard troops the Trump administration sent to Oregon at the beginning of last month would return to their home state.
