Federal appeals court will rehear case over National Guard deployment to Portland

President Trump remains blocked from calling up the Oregon National Guard and deploying them to Portland, after a federal appeals court decided to rehear the case.

In its decision Tuesday, the 9th Circuit Court of Appeals also reversed its ruling from last week that sided with the Trump administration.

That reinstates a temporary restraining order, issued by U.S. District Judge Karin Immergut, that blocked the administration from federalizing the Oregon National Guard.

“The court is sending a clear message: the president cannot send the military into U.S. cities unnecessarily,” Oregon Attorney General Dan Rayfield said in a statement Tuesday night. “We will continue defending Oregon’s laws, values, and sovereignty as this case moves forward and our fight continues in the courts.”

The order is the latest in an ongoing legal saga over whether National Guard troops can be sent to Portland.

On Oct. 20, a panel of three judges from the 9th Circuit issued a split ruling, 2-1, on the federalization of the Oregon National Guard. The majority wrote in their opinion that “it is likely that the President lawfully exercised his statutory authority,” and removed a legal barrier that had blocked 200 members of the Oregon National Guard from being federalized.

A third judge issued a scathing dissent that urged the full Ninth Circuit to rehear the case and “act swiftly to vacate the majority’s order before the illegal deployment of troops under false pretenses can occur.”

As part of the rehearing, or “en banc” proceedings, announced Tuesday, a panel of 11 different appeals court judges will once again consider the case.

This latest decision comes as Judge Immergut is set to hear a three-day trial over the potential deployment in Portland.

Last month, Oregon and the city of Portland sued to block the Trump administration from deploying members of the Oregon National Guard. The federal government had said they needed the guard to protect a U.S. Immigration and Customs Enforcement facility in Portland, which has been the site of ongoing protests.

The trial will examine whether the law and constitution give the president the authority to deploy the National Guard under the circumstances in Portland, or if the administration’s efforts infringe on states’ rights.

It was not clear Tuesday when the new 9th Circuit panel might rehear the case. But the court’s decision comes as questions about the initial appeals ruling gained traction.

That order relied in part on information from the federal government that suggested 115 Federal Protective Service officers had been sent en masse to Portland, representing a major diversion of forces.

But newer court filings show that was not the case. They show that officers were sent in roughly monthlong “waves” of up to 30 people. The federal government has also acknowledged that only 86 FPS officers were included in those waves.

Attorneys for the federal government said in a court filing Monday they “take with the utmost seriousness their obligation to provide the Court with accurate and up-to-date information, and we deeply regret these errors.”