UPDATE: Oct. 20, 4:32 p.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.
It’s unclear what impact this ruling will immediately have on the ground. The Ninth Circuit’s decision only applies to one of the two temporary restraining orders U.S. District Court Judge Karin Immergut issued earlier this month blocking deployments both from Oregon and from any other state.
In the majority opinion, 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, appeals court Judge Susan Graber disagreed, writing the Trump administration did not challenge the second restraining order, so it remains in effect.
“The government will remain barred from deploying the National Guard,” Graber wrote.
About an hour after the ruling, a spokesperson for United States Northern Command, the military command overseeing the federalized guard soldiers, said they were aware of the ruling, but said soldiers in Portland “are not conducting any operational activities at this time.”
“Right now until the district court acts on the second TRO, National Guard members from Oregon or other states for that matter cannot be deployed,” Gov. Tina Kotek said Monday.
Despite this lack of clarity, officials at the White House praised the appeals court’s ruling Monday, saying it affirms that the lower court’s ruling “was unlawful and incorrect.”
“As we have always maintained, President Trump is exercising his lawful authority to protect federal assets and personnel following violent riots that local leaders have refused to address,” Abigail Jackson, a White House spokesperson, said in a statement.
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 Immigration and Customs Enforcement agents and to reduce crime.
“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.”
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.
Trump called the National Guard to Portland last month
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.”
This characterization is false according to local and state officials, residents and journalists on the ground. Oregon Gov. Tina Kotek told NPR on Oct. 6 that the president’s portrayal was “ludicrous.”
“We had thousands of people on the streets of Portland for the Portland Marathon,” she said. “The city is beautiful. The city is thriving.”
The federal government has argued in court documents that the National Guard is needed to protect a U.S. Immigration and Customs Enforcement facility in Portland that has been the site of protests since June. They wrote that protesters had assaulted federal officers “with rocks, bricks, pepper spray and incendiary devices, causing injury.”
In their own court documents, attorneys for the city of Portland and state of Oregon wrote that the protests had been small and largely peaceful for months.
In a declaration provided to the court, Craig Dobson, an assistant chief with the Portland Police Bureau, or PPB, stated the protests have never been so out-of-control that local officers couldn’t respond.
“In fact, on any given weekend,” he stated, “the nightlife in Portland’s entertainment district has warranted greater PPB resources than the small, nightly protests in front of the ICE facility.”
The federal government, however, has argued that things have been quieter because 115 federal police officers were sent to Portland this summer to help protect the ICE building there. They say some of those federal officers have since been sent back. And while it’s not clear how many remain, the federal government says their deployment is a strain on resources.
In response, attorneys for the state of Oregon have said such deployments are a normal part of the federal police’s responsibilities.
Lower court decision
On Oct. 4, Judge Immergut granted the city and state a temporary restraining order, preventing the federal government from deploying the National Guard to Portland.
The president can federalize National Guard members if there’s a foreign invasion, a rebellion or danger of one, or an inability to carry out federal laws with “regular forces.”
Immergut wrote that the Trump administration did not have a legitimate basis for federalizing the National Guard because the protests in Portland had been “generally peaceful” since June and did not prevent federal law enforcement officers from doing their jobs.
She wrote that the Trump administration only described a few incidents of protesters clashing with federal officers in September before the National Guard federalization. They involved people shining overpowered flashlights in the eyes of drivers, “posting a photograph of an unmarked ICE vehicle online,” and “setting up a makeshift guillotine to intimidate federal officials.”
“These incidents are inexcusable,” Immergut wrote, “but they are nowhere near the type of incidents that cannot be handled by regular law enforcement forces.”
The following day, despite her ruling, Trump sent 200 federalized California National Guard members to Oregon. A memo from the Department of Defense also authorized up to 400 members of the Texas National Guard to deploy to Portland and Chicago.
Immergut then granted a second order blocking the Trump administration from deploying federalized members from any National Guard to Oregon.
In its appeal to the 9th Circuit, the Trump administration said in court documents the lower court judge had “impermissibly second-guessed the Commander in Chief’s military judgments.”
On Oct. 6, White House press secretary Karoline Leavitt said in a press briefing: “With all due respect to that judge, I think her opinion is untethered in reality and in the law.” She went on to say that the president was using his authority as commander in chief.
This is a breaking story and will be updated.
