Federal agents confront protesters in front of the U.S. Immigration and Customs Enforcement building September 28, 2025 in Portland, Oregon.
Mathieu Lewis Rolland | Getty Images
A federal appeals court ruled Monday that President Donald Trump could deploy National Guard troops on the streets of Portland, Oregon.
The 2-1 decision by a three-judge panel of the U.S. Court of Appeals for the 9th Circuit stayed a temporary restraining order issued by a federal district court judge on Oct. 4, barring Trump’s order to federalize 200 members of the Oregon National Guard to protect an Immigration and Customs Enforcement center in Portland.
“Having reviewed the record at this preliminary stage, we conclude that it is probable that the President lawfully exercised his statutory authority under a ‘law’ that 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 panel’s majority said in its order Monday.
The order details several instances of protesters disrupting activity at ICE facilities.
The majority’s two judges, Ryan Nelson and Bridget Bade, were appointed to the 9th Circuit by Trump.
The dissenting judge, Susan Graber, who was appointed by former President Bill Clinton, in a written dissent urged the other 9th Circuit judges to “move quickly to overturn the majority’s order because the unlawful deployment of troops under false pretenses can occur.”
Graber wrote that despite Trump’s Sept. 27 social media post claiming Portland was “ravaged by war,” there is no evidence in the court filing that ICE was incapable of protecting its facilities in Portland or enforcing immigration laws.
“But, in the statute invoked here, Congress authorized the President to call in the National Guard only to repel a foreign invasion, suppress a rebellion, or overcome an inability to execute the laws,” Garber wrote.
“Therefore, no legal or factual justification supported the order to federalize and deploy the Oregon National Guard.”
Graber concluded by saying, “We have come to expect a dose of political theater across the political branches, drama designed to rally the base or to annoy or intimidate political opponents. »
“We can also expect some distortion – sometimes disruption – of the truth. By the design of the Founders, the judiciary stands out,” she wrote. “We rule on facts, not assumptions or conjectures, and certainly not fabrications or propaganda.”
