9th Circuit rules National Guard can deploy to Portland: NPR

The U.S. Court of Appeals for the 9th Circuit today vacated a temporary restraining order. set up by a federal judge in Portland — removing the legal hurdle that prevented the Trump administration from sending National Guard troops to Portland.

“Having reviewed the matter at this preliminary stage, we conclude that it is likely that the President
lawfully exercised its statutory authority under 10 USC § 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,” they wrote in their decision.

The move follows a series of authorizations granted by Trump for the deployment of National Guard troops to US cities, including Los Angeles, Washington DC and Chicago. President Trump stated that deployments are necessary to protect the work of ICE agents and reduce crime.

On October 16, a federal appeals court confirmed a previous decision by an Illinois district court, temporarily block the federalization of the president and the deployment of the National Guard there. The Trump administration asked the Supreme Court to intervene.

Trump called the National Guard to Portland last month

The Trump administration federalized 200 members from the Oregon National Guard on September 28, after the president described Portland on social media as “war-ravaged” and “under siege from attacks by Antifa and other domestic terrorists.”

This the characterization is wrong according to local and state officials, residents and journalists on the ground. Oregon Governor Tina Kotek told NPR on October 6, that the portrait of the president was “ridiculous”.

“We had thousands of people on the streets of Portland for the Portland Marathon,” she said. “The city is beautiful. It is prosperous.”

The federal government argued in court papers that the National Guard was needed to protect a U.S. Immigration and Customs Enforcement center in Portland, the scene of protests since June. They wrote that protesters assaulted federal agents “with rocks, bricks, pepper spray and incendiary devices, causing injuries.”

In their own court papers, lawyers for the city of Portland and the state of Oregon wrote that the protests had been small and largely peaceful for months.

In a statement submitted to the court, Craig Dobson, deputy chief of the Portland Police Bureau (PPB), said the protests had never gotten so out of control that local officers could not respond.

“In fact, every weekend,” he said, “nightlife in Portland’s entertainment district has warranted greater PPB resources than small, nightly protests in front of ICE facilities.”

The federal government, however, argued that things were calmer because 115 federal police officers were sent to Portland this summer to help protect the ICE building. They say some of those federal agents have since been fired. And while it’s unclear how many are left, the federal government says their deployment is straining resources.

In response, Oregon state prosecutors said such deployments were part of normal federal law enforcement responsibilities.

Lower court blocked deployment

On October 4, U.S. District Court Judge Karin Immergut granted to the city and the state a temporary restraining order, preventing the federal government from deploying the National Guard to Portland.

The president can federalize members of the National Guard in the event of foreign invasion, rebellion or danger of rebellion, or failure to enforce federal laws with “regular forces.”

Immergut wrote that the Trump administration did not have a legitimate basis to federalize the National Guard because protests in Portland had been “generally peaceful” since June and had not stopped federal law enforcement from doing their jobs.

She wrote that the Trump administration described only a few incidents of clashes between protesters and federal officers in September, before federalization of the National Guard. These included people shining high-powered flashlights in drivers’ eyes, “posting a photo 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 far from the type of incidents that cannot be handled by regular law enforcement.”

The next day, despite his decision, Trump sent 200 federalized members of the California National Guard to Oregon. A Department of Defense memo also authorized up to 400 members of the Texas National Guard. to be deployed in Portland and Chicago.

Immergut then granted a second order blocking the Trump administration from sending federalized members of any National Guard to deploy to Oregon.

In their appeal to the 9th CircuitThe Trump administration said in court papers that the lower court judge had “impermissibly questioned the military judgments of the commander in chief.”

On October 6, White House Press Secretary Karoline Leavitt said during a press briefing: “With all due respect to this judge, I think that her opinion is linked neither to reality nor to the law.” She added that the president was using his authority as commander in chief.

This is a breaking story and will be updated.