The Court Allowed Trump to Take Control of the Oregon National Guard but Upheld the Ban on Its Deployment

On Monday, October 20, a federal appeals court put on hold a lower court’s ruling that had barred President Donald Trump from taking command of 200 Oregon National Guard troops. However, he still cannot order their actual deployment for now.

Earlier in October, U.S. District Judge Karin Immergut, a Trump appointee, issued two temporary restraining orders. The first prohibited the president from calling up those troops to send them to Portland. The second completely banned the deployment of any National Guard units in Oregon after Trump tried to circumvent the first order by sending a unit from California instead.

The Justice Department appealed the first order, and on Monday a three-judge panel of the Ninth Circuit Court of Appeals, in a 2–1 decision, sided with the administration. The majority found that the president was likely to succeed in proving he had the authority to federalize the Guard if he determined he could not enforce the laws without their assistance.

Even so, Immergut’s second order remains in effect, meaning the deployment of troops is still not possible.

The administration maintains that both injunctions rest on the same legal reasoning and are therefore invalid. The appellate ruling also noted that the two orders “rise or fall together.”

Immediately after Monday’s ruling, the Justice Department asked Judge Immergut to lift the second order so that Trump could send troops to Portland. The department argued that courts should not interfere with presidential decisions on the need to deploy military forces.

“The Ninth Circuit’s decision to stay the first order constitutes a substantial change in the legal landscape and plainly requires vacatur of this court’s second order,” administration lawyers said.

Oregon Attorney General Dan Rayfield, a Democrat, said he plans to ask a larger panel of the court to review the decision.

“If today’s ruling stands, the president will have unilateral authority to send Oregon’s soldiers into the streets without any justification,” Rayfield said. “America is heading down a dangerous path.”

Trump’s attempts to deploy National Guard forces in cities run by Democrats have repeatedly triggered legal challenges.

A court in California ruled that the deployment of thousands of Guard members in Los Angeles violated the Posse Comitatus Act, which prohibits the use of the military for domestic law enforcement. On Friday, the administration petitioned the U.S. Supreme Court to allow the deployment of the Guard in the Chicago area.

Since June, mostly small nighttime protests have taken place outside the Immigration and Customs Enforcement building in Portland, confined to a single block. On some nights, larger crowds have gathered—including counter-protesters and livestreaming bloggers—and federal agents have used tear gas to disperse them.

The administration argues that the troops are needed to protect federal property and that sending additional Homeland Security agents has weakened enforcement of immigration laws elsewhere.

Judge Immergut had previously rejected those arguments, saying the president’s claims of “martial law” in Portland “bear no relation to the facts.” However, the appellate majority—Judges Ryan Nelson and Bridget Bade, both Trump appointees—concluded that the president’s actions deserved a greater degree of deference.

Bade wrote that the available evidence supported Trump’s decision “even if the president tends to exaggerate the scale of the problem on social media.”

Judge Susan Graber, appointed by Bill Clinton, dissented from the majority opinion and urged her colleagues to “reverse the ruling before an unlawful deployment of troops occurs under a false pretext.”

“In the two weeks preceding the president’s September 27 post, there was not a single instance of protesters obstructing the enforcement of the law,” she noted. “It is difficult to see how a tiny demonstration that caused no disruption could justify the president’s claim that he was unable to execute the laws.”