The Trump administration received the green light to send the Oregon National Guard to Portland after a federal appeals court on Monday overturned a lower court’s order barring the deployment — but there remains at least one more legal hurdle to clear before there are boots on the ground.
“Having reviewed the record at this preliminary stage, we conclude that it is probable that the President lawfully exercised his statutory authority,” the Ninth Circuit Court of Appeals’ 2-1 ruling said Monday.
The ruling, backed by two judges appointed by President Donald Trump, overturns a temporary restraining order issued by U.S. District Judge Karin Immergut, who last week extended two orders blocking the mobilization of federal troops in Portland.
It also marks a big victory for the administration as it continues to battle other Democratic-led cities over troop deployments — efforts that local and state leaders say are a disproportionate response to protests over the administration’s crackdown on immigration.
Here’s what else we know:
The ruling overturns only one of two lower court rulings blocking the National Guard’s deployment to Portland, and because a second ruling is still in effect, troops cannot be mobilized immediately.
The second restraining order prevents the administration from mobilizing National Guard troops from anywhere in the United States, to Oregon. The administration argued Monday evening that the second order should also be vacated given that both lower court orders were based on the same legal reasoning.
As Oregon’s legal battle continues, hundreds of National Guard troops are on standby far from home, Gov. Tina Kotek said.
“I am very troubled by the court’s decision,” Kotek said at a news conference Monday. “These citizen soldiers were taken away from their families and jobs for weeks to conduct some sort of mission in Oregon.”
If the second temporary restraining order is revoked, it is unclear when troops will be deployed or how many will be federalized, Kotek said, citing a lack of communication from the Trump administration.
The only dissenting voice on the three-judge appeals panel came from Judge Susan P. Graber, appointed by former President Bill Clinton.
“Today’s decision is not only absurd. It erodes fundamental constitutional principles, including sovereign states’ control over their state militias and the First Amendment right of the people to assemble and oppose the policies and actions of the government,” Graber wrote in his dissent.
Echoing Graber’s sentiments, Oregon Attorney General Dan Rayfield said in a statement: “Today’s decision, if upheld, would give the President unilateral authority to put Oregon troopers on our streets with almost no justification.” »
Rayfield asked the Ninth Circuit to “act expeditiously” and overturn the majority’s decision through an “en banc” review, in which a larger panel of 11 appellate judges would review the case.
Separately, a Ninth Circuit judge on Monday afternoon asked the court to vote on whether the case should be heard en banc. Although such a request is not unusual, it is more common for plaintiffs or defendants to request such a rehearing.
Lawyers for the state and the Trump administration have until midnight Wednesday to make their case.
Protests in Portland against the White House’s immigration policies began in June, with a riot declared and arrests for arson in mid-summer. The scene was generally calm until Trump declared in late September that he would send 200 Oregon National Guard troops to the city.
Administration officials have called Oregon’s largest city “war ravaged” and uncontrollably violent, something Kotek and other Oregon leaders have categorically disputed. Kotek said in court Monday that the situation in Portland was nowhere as extreme as federal officials claim.
In a letter sent Friday to the Department of Defense’s Office of Inspector General, a group of senators, including those from Oregon, called for an investigation into recent deployments of National Guard troops across the country.
The senators argued that the deployments were dangerous, unconstitutional and “strained military readiness and resources,” according to the letter.
“We urgently request that you open an investigation into the cumulative effects of these domestic deployments of active-duty U.S. 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 that Illinois and Chicago city officials asked the U.S. Supreme Court to block the administration’s emergency request to keep National Guard troops in the state.
The filing notes that there is no rebellion or failure to execute federal law in Illinois, arguing that the administration has failed to meet legal requirements to activate troops in the face of state dissent.
“No protest activity in Illinois has rendered the President incapable of enforcing federal law,” the filing says, describing the protests against the ICE facility in Broadview, near Chicago, as “small,” manageable by local authorities and having “never interfered with the continued operation of ICE facilities there.”
The filing addresses constitutional concerns that the federal government is pressuring Illinois to use its own National Guard to implement the Trump administration’s priorities or let federal troops take power, stating: “Such coercion is unconstitutional per se.” »
Monday’s filing comes after Trump asked the Supreme Court on Friday to allow him to deploy the National Guard to Chicago as part of an emergency appeal against a lower court order that blocked the deployment of troops to the city. This temporary restraining order is set to expire on Thursday.
According to the administration, the move “inappropriately encroaches on the President’s authority and unnecessarily endangers federal personnel and assets.”
In Tennessee, a group of seven elected officials last week sued the state’s governor and attorney general for authorizing the deployment of the Tennessee National Guard to Memphis at Trump’s direction.
“Governor Lee’s deployment violates both the Tennessee Constitution and state statutes, which authorize the Guard to be called in only in the event of rebellion or invasion – and only when the General Assembly declares that public safety requires it,” officials said in a statement released by the National Immigration Law Center.
“Such conditions do not exist in Memphis today.”
Gov. Lee’s office responded Monday to the lawsuit filed against him, saying Lee had the authority to deploy State Guard troops under Tennessee law, CNN affiliate WATN reported.
Federal troops were first seen in Memphis on Oct. 10, the Associated Press reported, including soldiers accompanied by Memphis police officers patrolling near the Pyramid, an iconic landmark in the city.
And for the second time in a week, Trump said Sunday he would send the National Guard to San Francisco, telling Fox News’ Maria Bartiromo that the city “has gone bad, woken up.”
“We’re going to San Francisco and we’re going to make things great,” the president said.
In response to Trump’s comments, San Francisco Mayor Daniel Lurie said in a video address that sending in the National Guard would not help the city’s ongoing efforts to combat drug trafficking.
“I am deeply grateful to our members of the military for their service to our country, but the National Guard does not have the power to stop drug dealers – and sending them to San Francisco will do nothing to take fentanyl off the streets or make our city safer,” the mayor said.
While welcoming closer coordination with federal authorities, Laurie cited declining violent crime rates reaching “levels not seen since the 1950s” and record-breaking tent camps to show the city is achieving safety “without compromising our values or our laws.”
“No one wants you here,” California Governor Gavin Newsom also said in a social media post in response to Trump’s comments. “You are going to ruin one of the greatest cities in America.”
