UPDATE: Oct. 21, 6:06 a.m. ... A divided federal appeals court ruled Monday that President Trump can send members of the National Guard to Portland.
“After considering the record at this preliminary stage, we conclude that it is likely that the President lawfully exercised his statutory authority,” the U.S. Court of Appeals for the 9th Circuit wrote in the majority opinion.
The ruling is the latest development in a fast-moving case that began last month when the city of Portland and the states of Oregon and California sued to stop President Trump from calling up the National Guard.
It’s unclear what impact this ruling will immediately have on the ground. The 9th Circuit’s decision only applies to the first of two temporary restraining orders U.S. District Court Judge Karin Immergut issued this month. The first blocked the federalization of the Oregon National Guard. The second order halted any federalized guard members from deploying to Oregon.
In the majority opinion, appeals court Judges Ryan Nelson and Bridget Bade wrote that both of Immergut’s restraining orders “rise or fall together” because they’re based on the same legal reasoning.
In her dissent, Judge Susan Graber disagreed, writing the Trump administration did not challenge Immergut’s second order, stating it remains in effect.
“The government will remain barred from deploying the National Guard,” Graber wrote.
Shortly after the court ruled, the U.S. Department of Justice pressed Immergut to “dissolve” her second restraining order, clearing the way for a possible deployment. The appeals court said it was considering whether a larger panel of judges for the 9th Circuit should rehear the case — something city and state officials are also calling for.
The ruling comes in the wake of a series of Trump authorizations to deploy National Guard troops to American cities including Los Angeles, Washington, D.C., and Chicago. Trump has said the deployments are necessary to protect the work of U.S. Immigration and Customs Enforcement agents and to reduce crime.
About an hour after the ruling, a spokesperson for United States Northern Command, which is overseeing the federalized guard soldiers, said the military was aware of the ruling, but said soldiers in Portland “are not conducting any operational activities at this time.”
Officials at the White House praised the appeals court’s ruling, saying it affirms that the lower court’s ruling “was unlawful and incorrect.”
Oregon Gov. Tina Kotek reiterated that any military deployment to the state was “unwanted” and “unneeded.”
“Today’s ruling, if allowed to stand, would give the president unilateral power to put Oregon soldiers on our streets with almost no justification,” Oregon Attorney General Dan Rayfield said in a statement. “We are on a dangerous path in America.”
Appeals court divided on Portland protests
The case grapples with whether the president has the legal authority to send the National Guard to protect federal functions at the Immigration and Customs Enforcement building in South Portland. The president can federalize National Guard members if there’s a foreign invasion, a rebellion, or an inability to carry out federal laws with “regular forces.”
For months, protesters have gathered outside the ICE facility. While most of the demonstrations have been uneventful, some have led to criminal charges. Federal officials have said the constant demonstrations forced them to close the facility for three weeks over the summer.
The Trump administration federalized 200 members of the Oregon National Guard on Sept. 28, after the president described Portland on social media as “war ravaged” and “under siege from attack by Antifa, and other domestic terrorists.”
In her Oct. 4 ruling granting the city and state a temporary restraining order, Judge Immergut wrote the Trump administration did not have a legitimate basis for federalizing the National Guard. The protests in Portland had been “generally peaceful” since June and did not prevent federal law enforcement officers from doing their jobs, she wrote in a 31-page order. “By late September, these protests typically involved twenty or fewer people.”
Immergut, who was appointed to the bench by Trump, later granted a second order blocking the administration from deploying federalized members from any National Guard to Oregon.
In their majority decision, the 9th Circuit judges rejected Immergut’s assessment of the protests.
“Some of these protests have been peaceful, but many have turned violent, and protesters have threatened federal law enforcement officers and the building,” Judges Bade and Nelson wrote.
They found that by only focusing on protests during September, Immergut “discounted most of the evidence” and “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.”
Bade and Nelson, who were also both appointed to the appeals court by Trump, wrote the federal law doesn’t limit the president’s authority to a specific period of time. Instead of looking at the evidence with great deference to the president, Immergut used her “own determination of the relevant facts and circumstances,” the majority found.
In the dissent, Graber urged her colleagues on the court to act swiftly and rehear the case so they could “vacate the majority’s order before the illegal deployment of troops under false pretenses can occur.”
Graber, who was appointed by President Clinton, found no factual or legal justification that would allow the president to federalize and deploy the Oregon National Guard.
“Given Portland protesters’ well-known penchant for wearing chicken suits, inflatable frog costumes, or nothing at all when expressing their disagreement with the methods employed by ICE, observers may be tempted to view the majority’s ruling, which accepts the government’s characterization of Portland as a war zone, as merely absurd,” Graber wrote. “But today’s decision is not merely absurd.”
She warned the appeals court was eroding core constitutional protections, such as the rights to assemble and protest the government as well as state sovereignty.
On Oct. 16, a federal appeals court upheld an earlier district court ruling in Illinois, temporarily blocking the president’s federalization and deployment of the National Guard deployment there. The Trump administration has asked the Supreme Court to intervene.
“We’re not at the end of the road for the Portland case, for the Los Angeles case, or for the Chicago case,” Loyola Law School’s Jessica Levinson said Monday. “They’re all in slightly different places. And really, it’s difficult to game out what’s going to happen in the next few days and months in terms of what happens in court rulings.”
OPB’s Troy Brynelson, Lauren Dake and NPR’s Ravenna Koenig contributed reporting.
This is a breaking story and will be updated.
