9th Circuit rules that National Guard can deploy to Portland

A divided federal appeals court for the 9th Circuit today overturned a temporary restraining order put in place by a federal judge in Portland – removing the legal impediment that was preventing the Trump Administration from sending National Guard troops to Portland.

“After considering the record at this preliminary stage, we conclude that it is likely that the President lawfully exercised his statutory authority under 10 U.S.C. § 12406(3), which authorizes the federalization of the National Guard when ‘the President is unable with the regular forces to execute the laws of the United States,'” the majority wrote in their decision.

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. President Trump has said the deployments are necessary to protect the work of ICE agents, and reduce crime.

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 (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 blocked the deployment 

On Oct. 4, U.S. District Court Judge Karin 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,” Judge 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 sending any federalized members from any National Guard from deploying to Oregon.

In their 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.

Appeals court sides with the President

The majority opinion for the 9th Circuit was authored by judges Ryan Nelson and Bridget Bade, who were both appointed during Trump’s first term.

They wrote that the district court erred when it discounted “the violent and disruptive events that occurred in June, July, and August,” outside the ICE facility and focused “on only a few events in September,” the month Trump federalized the National Guard.

The law, they argued, didn’t put such limitations on the facts or circumstances that the President could consider when making a decision to deploy the national guard.

“The President can, and should, consider the totality of the circumstances when determining whether he ‘is unable with the regular forces to execute the laws of the United States,'” they wrote.

“Rather than reviewing the President’s determination with great deference,” the panel of judges wrote, “the district court substituted its own determination of the relevant facts and circumstances.”

Appeals court judge Susan Graber, who was appointed by President Bill Clinton, dissented, writing there was no justification 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.

This is a developing story and will be updated.