(Oregon Capital Chronicle) — President Donald Trump “lawfully exercised his statutory authority” to deploy Oregon National Guard Troops to Portland on Sept. 27, according to two of three federal appellate judges, who on Monday overruled a lower court’s temporary restraining order that had stopped the deployment for nearly a month.
The decision on Monday came from U.S. Appellate Judges Ryan Nelson and Bridget Bade of the 9th Circuit Court of Appeals in San Francisco — both Trump appointees. Lawyers for the Oregon Department of Justice and the city of Oregon will pursue a review and reconsideration by the full appeals court. That court would be made up of 11 appellate judges across the 10 states and Northern Mariana Islands represented in the 9th Circuit Court of Appeals.
“We will not stand by while federal agencies sidestep local authority. Our legal team, working with the Oregon Department of Justice, will use every lawful tool to prevent this overreach,” Portland Mayor Keith Wilson said in a statement.
To get the full-court review, lawyers for Oregon will need 29 judges on the 9th Circuit Court of Appeals to agree the review is justified and that Nelson and Bade were wrong, that other Circuit Court judges have ruled differently or that the case is of such great importance that more review is necessary. Ninth Circuit Judge Sidney Thomas called for a vote for the full-court review Monday without prompting.
It’s as yet unclear if or when all of this clears the way for troops to be sent to Portland in the coming days.
Following the decision by Nelson and Bade, lawyers for the federal government have 48 hours to appeal a second temporary restraining order issued by U.S. District Court Judge Karin Immergut in Oregon that bars the deployment of any guard from any state until Oregon’s lawsuit against the federal government is decided following a trial at the end of the month.
Oregon will have 24 hours to respond to that appeal. As long as the second temporary restraining order is unchallenged, “National Guard members from Oregon or from other states for that matter cannot be deployed,” Gov. Tina Kotek said at a news conference Monday. She said officials from the Trump administration had not reached out following the 9th Circuit’s decision.
“I have repeatedly called on the Trump administration to tell the public exactly what mission he expects National Guard members to do. These citizen soldiers have been pulled away from their families and their jobs for weeks to carry out some kind of mission in Oregon, but the Trump administration has been silent on the answer to my questions,” she said.
U.S. Appellate Judge Susan Graber, a Clinton appointee and former Oregon Supreme Court judge, wrote a 15-page dissent to the majority decision.
She concluded with a powerful call to her colleagues on the 9th Circuit to reverse Nelson and Bade’s decision, and offered a telling request to the public.
“I urge my colleagues on this court to act swiftly to vacate the majority’s order before the illegal deployment of troops under false pretenses can occur. Above all, I ask those who are watching this case unfold to retain faith in our judicial system for just a little longer,” she wrote.
Besides Immergut, U.S. district court judges in California and Illinois, and appellate judges in 7th Circuit Court of Appeals, have all made rulings against Trump’s attempted National Guard deployments that have targeted cities and states governed by Democrats.
In their decision, Nelson and Bade said Immergut, also a Trump appointee, ruled erroneously in issuing the temporary restraining orders barring troop deployment to Portland.
They said she focused on too narrow a time period and set of facts about protests at the Immigration and Customs facility in Portland that federal lawyers argue constitute a rebellion, and that Immergut applied an incorrect definition of “rebellion” to the federal government’s claim that it is unable to execute its functions in Portland.
In her dissent Graber issued a stark response.
“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. “But today’s decision is not merely absurd. It erodes core constitutional principles, including sovereign States’ control over their States’ militias and the people’s First Amendment rights to assemble and to object to the government’s policies and actions.
Nelson and Bader also argued that the federal government is likely to prevail in Oregon’s case against it because of the deferential power the president holds.
Nevertheless, Nelson wrote: “We should not lose hope in our constitutional structure as a check against presidential overreach today.”
The state of Oregon and the city of Portland contend Trump violated several laws and the 10th Amendment of the U.S. Constitution by attempting to deploy Guard troops to Portland over the objections of state and local elected leaders. Each of these issues deals with the balance of state and federal power — particularly related to authority over policing within states — and the extent of presidential power over the U.S. military.
“Today’s ruling, if allowed to stand, would give the president unilateral power to put Oregon soldiers on our streets with almost no justification,” Oregon Attorney General Dan Rayfield said in a statement. “We are on a dangerous path in America.”
Oregon’s U.S. Rep. Maxine Dexter, who represents the state’s 3rd Congressional District and the area where the ICE facility in Portland is being protested, said in a statement: “Portland is a peaceful, kind, and loving place. Today’s ruling, if allowed to stand, does not change that. Trump wants to incite violence and chaos. Portland sees this authoritarian takeover for what it is, and we will not bend the knee.”
