Trump can send troops to Portland, appeals court says
A federal appeals court Monday said President Donald Trump could deploy the National Guard to Portland, Oregon, blocking a judge’s ruling that prohibited his administration from sending troops into the city.
The decision from a divided three-judge panel with the U.S. Court of Appeals for the 9th Circuit authorizes, for now, Trump’s efforts to place the military in Oregon’s largest city, one of several places where he has sent troops or vowed to do so, including Los Angeles, Chicago and D.C.
In an order released Monday afternoon, a 2-1 majority on the panel said it was likely that Trump acted lawfully in federalizing the National Guard during protests in Portland over immigration enforcement. The order said the judge who blocked Trump from deploying troops there “accorded no deference to the President’s determination that he could not execute federal laws with regular forces.”
Trump’s statements about deploying troops have prompted intense opposition from many state and local leaders. Some have gone to court to challenge such actions, accusing the administration of violating the law and inflaming situations in their communities.
A federal judge in Chicago has blocked Trump’s push to deploy troops in Illinois, saying she found a “lack of credibility” in federal officials’ contentions in that case. The Trump administration has asked the Supreme Court to pause that decision and allow the troop deployment in Illinois. The justices have not yet ruled in that case; a decision could come this week.
In Oregon, officials wrote in court filings that the Trump administration’s efforts to deploy troops were infringing on the state’s “sovereign power to manage its own law enforcement activity and its own National Guard.”
The Trump administration wrote in its filings that the president acted lawfully, saying troops were needed in Portland because immigration “officers and property were the subject of regular, often-violent protests.”
Demonstrations have unfolded for weeks at an Immigration and Customs Enforcement facility in Portland. The Trump administration has said in court papers that the facility was “the target of actual and threatened violence.”
Trump’s intended Portland deployment was paused this month when U.S. District Judge Karin J. Immergut blocked him from sending the Oregon National Guard into the city.
Immergut, who was appointed by Trump during his first term, wrote in her order that by the time Trump announced plans to send troops to Portland, “it had been months since there was any sustained level of violent or disruptive protest activity” in the city.
The Trump administration pivoted to send California National Guard members into Portland. Immergut issued a second order, blocking the administration from sending troops into Oregon.
The Trump administration has appealed Immergut’s order blocking the Oregon National Guard from being deployed in Portland, but not her order prohibiting any National Guard members from being deployed in Oregon.
During arguments before the 9th Circuit panel this month, the Justice Department said if the judges paused Immergut’s first order, the agency planned to seek to have her second order dissolved. In its order, the panel’s majority agreed that Immergut’s two orders “rise or fall together.”
Later Monday, the Justice Department asked to have Immergut’s second order dissolved or paused.
The 9th Circuit judges said Immergut had erred on several fronts, writing that she reviewed an unnecessarily limited window of time to assess unrest in Portland and “substituted [her] own assessment of the facts for the President’s assessment of the facts.”
The 9th Circuit panel’s members were Judges Ryan D. Nelson and Bridget S. Bade, both of whom were appointed by Trump, and Susan P. Graber, who was appointed by President Bill Clinton. Graber dissented from the majority’s decision, writing that it “erodes core constitutional principles” and “abdicates our judicial responsibility.”
Graber said that because the Trump administration had not appealed Immergut’s second order, Monday’s ruling would not have any immediate effect. The administration, she wrote, “will remain barred from deploying the National Guard.”
The Trump administration praised the ruling.
“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 spokeswoman, said in a statement. “This ruling reaffirms that the lower court’s ruling was unlawful and incorrect.”
In a statement, Oregon Attorney General Dan Rayfield (D) said the ruling, “if allowed to stand, would give the president unilateral power to put Oregon soldiers on our streets with almost no justification. We are on a dangerous path in America.”
After the ruling Monday, a larger group of judges within the 9th Circuit—known as an en banc panel—could rehear the case. Both sides in the case were directed to file briefs this week saying whether they thought the case should be reheard by the larger panel.
Graber wrote in her dissent that she urged her colleagues “to act swiftly to vacate the majority’s order before the illegal deployment of troops under false pretenses can occur.” Rayfield said he echoed Graber in hoping the larger panel of 9th Circuit judges would vacate the panel’s decision.
The 9th Circuit panel that ruled Monday conducted a hearing this month to weigh arguments about the Portland deployment and whether to allow it to proceed.
Appearing before the judges, officials representing the Trump administration and Oregon offered dueling portraits of whether the Portland deployments were lawful.
Oregon officials said protests in Portland significantly declined since the summer. By the time Trump announced the Portland deployment late last month, they wrote in court filings, “the protesters’ activities have not necessitated any arrests for months.”
Immergut, in her ruling, had echoed Oregon officials’ conclusions. While there were violent protests at the ICE facility in June, she wrote, by the time of Trump’s attempted deployment, the demonstrations “were generally peaceful in nature with only sporadic incidents of violence and disruptive behavior.”
Eric McArthur, a Justice Department lawyer, told the 9th Circuit panel that Immergut erred in considering the situation in Portland only during the days and weeks before Trump’s deployment. He said the Trump administration had sent in federal law enforcement officials to help quell the unrest but described this as unsustainable given limited resources. As a result, he said, Trump called in the National Guard.
Stacy M. Chaffin, an assistant Oregon attorney general, said there was a significant difference between the situation around the ICE facility in June and in September. She urged the panel’s judges “to look at the circumstances around when that happened.”
In its opinion, the panel’s majority said Monday that Immergut “clearly erred in characterizing the events in September leading up to and preceding the federalization order,” writing that “numerous instances of violent and disruptive behavior” happened outside the ICE facility in September.
Graber wrote in her dissent that “there had not been a single incident of protesters’ disrupting the execution of the laws” in the two weeks leading up to Trump’s announcement about deploying troops in Portland. Even looking back to the summer when protests were heavier did not mean there was an emergency requiring troops by September, she said.
“It is illogical to assert that, because an emergency existed three months ago, the same emergency exists today,” she wrote. “A pot of tepid water is not a pot of boiling water, and it cannot hurt you, even if it was boiling three hours earlier.”
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