The Trump administration has been given the green light to send the Oregon National Guard into Portland after a federal appeals court on Monday overturned a lower court’s order to bar the deployment – but there’s at least one more legal hurdle to clear before there will be boots on the ground.
“After considering the record at this preliminary stage, we conclude that it is likely that the President lawfully exercised his statutory authority,” the 2-1 ruling from the Ninth Circuit Court of Appeals Monday said.
The ruling, supported by two judges appointed by President Donald Trump, overturns a temporary restraining order issued by US District Judge Karin Immergut, who last week extended two orders blocking the mobilization of federal troops to Portland.
It also marks a big win for the administration as it continues to battle other Democrat-led cities over troop deployment – efforts that local and state leaders say are a disproportionate response to protests against the administration’s immigration enforcement crackdown.
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The ruling overturns only one of two lower court decisions to block the deployment of the National Guard in Portland, and because a second decision is still in force, troops can’t immediately be mobilized.
The second restraining order blocks the administration from mobilizing National Guard troops from anywhere in the US in Oregon. The administration argued in a Monday evening filing the second order should also be overruled given both lower court orders relied on the same legal reasoning.
As the legal battle over Oregon continues, hundreds of National Guard troops are in a holding pattern far from home, Gov. Tina Kotek said.
“I’m very troubled by the decision of the court,” Kotek said in a news conference Monday. “These citizen soldiers have been pulled away from their families and their jobs for weeks to carry out some kind of mission in Oregon.”
If the second temporary restraining order is revoked, it is unclear when troops would be deployed or how many would be federalized, Kotek said, citing a lack of communication from the Trump administration.
The sole dissenting vote on the three-judge appellate panel came from Judge Susan P. Graber, an appointee of former President Bill Clinton.
“Today’s decision is not merely absurd. It erodes core constitutional principles, including sovereign States’ control over their States’ militias and the people’s First Amendment rights to assemble and to object to the government’s policies and actions,” Graber wrote in her dissent.
Echoing Graber’s sentiments, Oregon Attorney General Dan Rayfield said in a statement, “Today’s ruling, if allowed to stand, would give the president unilateral power to put Oregon soldiers on our streets with almost no justification.”
Rayfield asked the Ninth Circuit to “act swiftly” and throw out the majority’s ruling through an “en banc” review, in which a larger panel of 11 appellate judges would reconsider the case.
Separately, a Ninth Circuit judge Monday afternoon asked the court to vote on whether the case should be reheard en banc. While such a request is not unusual, it’s more common for either plaintiffs or defendants to request such a rehearing.
Attorneys for the state and the Trump administration have until midnight on Wednesday to make their arguments.
Protests in Portland against White House immigration policies started in June, with a declared riot and arson arrests in mid-summer. The scene was largely calm until Trump declared in late September he was sending 200 Oregon National Guard troops to the city.
Administration officials have characterized Oregon’s biggest city as “war-ravaged” and uncontrollably violent, which Kotek and other leaders in Oregon have emphatically disputed. Kotek on Monday said in court that the situation in Portland is nowhere as extreme as federal officials portray it to be.
In a letter sent Friday to the Defense Department Office of Inspector General, a group of senators, including those from Oregon, asked for an inquiry into recent deployments of National Guard troops across the country.
The senators argued that deployments were dangerous, unconstitutional, and also “straining military readiness and resources,” according to the letter.
“We urgently request that you initiate an inquiry into the cumulative effects of these domestic deployments of U.S. active-duty troops and the National Guard—over the objections of state and local officials—on military readiness, resources, personnel, and our military as an institution,” the senators requested.
Trump’s success in Oregon comes on the same day officials from Illinois and the city of Chicago asked the US Supreme Court to block the administration’s emergency request to keep National Guard troops in that state.
The filing notes there is no rebellion or inability to execute federal law in Illinois, arguing the administration hasn’t met legal requirements to activate troops over the state’s dissent.
“No protest activity in Illinois has rendered the President unable to execute federal law,” the filing says, describing protests at the ICE facility in Broadview, near Chicago, as “small,” manageable by local authorities and having “never hindered the continued operation of the ICE facility there.”
The filing addresses constitutional concerns that the federal government is pressuring Illinois to either use its own National Guard to carry out the Trump administration’s priorities or let federal troops takeover, stating, “Such coercion is independently unconstitutional.”
The Monday filing comes after Trump on Friday urged the Supreme Court to allow him to deploy the National Guard in Chicago in an emergency appeal against a lower court order that blocked the deployment of troops in the city. That temporary restraining order is set to expire on Thursday.
The ruling, the administration argues “improperly impinges on the president’s authority and needlessly endangers federal personnel and property.”
In Tennessee, a group of seven elected officials sued the governor and the state’s attorney general last week for allowing the deployment of Tennessee National Guard to Memphis at the direction of Trump.
“Governor Lee’s deployment violates both the Tennessee Constitution and state statutes, which allow the Guard to be called up only in the event of a rebellion or invasion—and only when the General Assembly declares that public safety requires it,” the officials said in a statement published by the National Immigration Law Center.
“No such conditions exist in Memphis today.”
Governor Lee’s office responded Monday to the lawsuit filed against him, saying Lee has the authority to deploy the state’s Guard troops under Tennessee law, CNN affiliate WATN reported.
Federal troops were seen in Memphis for the first time on October 10, the Associated Press reported, including soldiers accompanied by Memphis police officers patrolling at the Pyramid, an iconic landmark in the city.
And for the second time in a week, Trump said on Sunday he would send the National Guard to San Francisco, telling Fox News’ Maria Bartiromo that the city “went wrong, went woke.”
“We’re going to San Francisco and we’re going to make it great,” the president said.
In response to Trump’s comments, San Francisco Mayor Daniel Lurie said in a video address that sending the National Guard would not help with the city’s ongoing efforts to combat drug dealing.
“I am deeply grateful to the members of our military for their service to our country, but the National Guard does not have the authority to arrest drug dealers – and sending them to San Francisco will do nothing to get fentanyl off the streets or make our city safer,” the mayor said.
While welcoming stronger coordination with federal authorities, Laurie cited declines in violent crime rate reaching “levels not seen since the 1950s” and record low tent camps to show the city achieving safety “without compromising on our values or our laws.”
“Nobody wants you here,” California Gov. Gavin Newsom also said in a social media post in response to Trump’s comments. “You will ruin one of America’s greatest cities.”
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