A Ninth Circuit Court of Appeals ruling Monday will allow the Trump administration to deploy National Guard troops in Portland — an important legal victory in a showdown over presidential power that’s happening on multiple fronts.
The ruling overturns a lower court’s decision to block the deployment as the appeal process plays out.
President Donald Trump’s success in Oregon comes days after he urged the Supreme Court to allow him to deploy the National Guard in Chicago in an emergency appeal of a lower court order that the administration said “improperly impinges on the president’s authority and needlessly endangers federal personnel and property.”
National Guard soldiers currently in Portland and Chicago “are not conducting any operational activities at this time,” an update from the United States Northern Command said.
The three-judge panel weighed in on a temporary restraining order issued by US District Judge Karin Immergut, who last week ruled to extend two temporary restraining orders barring the deployment of federal troops to Portland.
Even if Trump exaggerates the severity of Portland’s protests on social media, “this does not change that other facts provide a colorable basis to support the statutory requirements,” the majority said in the ruling.
Two Trump-appointed judges, Ryan D. Nelson and Bridget S. Bade, sided with the administration’s appeal while a third, former President Bill Clinton appointee Judge Susan P. Graber, dissented, saying, “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.”
The majority’s ruling, from the White House’s point of view, proves the lower court’s decision was incorrect, according to Abigail Jackson, a White House spokesperson.
“As we have always maintained, President Trump is exercising his lawful authority to protect federal assets and personnel following violent riots that local leaders have refused to address,” Jackson said.
In light of the appellate court’s ruling, the Trump administration is asking that Judge Immergut’s second order be thrown out or paused.
“Given the Ninth Circuit’s clear statements on the second TRO’s validity, the Court should address this motion in part today and without awaiting plaintiffs’ response due tomorrow evening,” the motion filed Monday evening said.
The president has cited protests outside Portland’s Immigration and Customs Enforcement facility to justify the call-ups of troops in the deep blue city.
“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 Monday. “We are on a dangerous path in America.”
Rayfield asked the Ninth Circuit to “act swiftly” and throw out the majority’s ruling through an en banc review in which a larger panel of 11 appellate judges would reconsider the case.
Federal agents clash with anti-ICE protesters at the US Immigration and Customs Enforcement building on October 12 in Portland, Oregon. – Mathieu Lewis-Rolland/Getty Images
Separately, a Ninth Circuit judge Monday afternoon asked the court to vote on whether the case should be reheard en banc. While such a request is not unusual, it’s more common for either plaintiffs or defendants to request such a rehearing.
The state plans to file its own petition for an en banc review, a spokeswoman for the Rayfield’s office said Monday.
Attorneys for the state and the Trump administration have until midnight on Wednesday, October 22, to make their case for or against an en banc review.
‘I’m very troubled’
As the legal battle in Oregon wages on, hundreds of National Guard troops are in a holding pattern far from home, Gov. Tina Kotek said.
“I’m very troubled by the decision of the court,” Kotek said in a virtual press conference Monday. “These citizen soldiers have been pulled away from their families and their jobs for weeks to carry out some kind of mission in Oregon.”
Kotek echoed the sentiments in Judge Graber’s dissent and asked that the Ninth Circuit review the case again given the seriousness of the situation.
“I think it was a really important development that the one judge in the 2-1 ruling was immediately calling on their on her colleagues, to vacate this order,” Kotek said.
If the second temporary restraining order is revoked, Kotek added, it is unclear where troops would be deployed or how many would federalized, citing a lack of communication from the Trump administration.
Kotek, along with other leaders in Oregon, has emphatically disputed the president’s characterizations of the city as “war-ravaged” and uncontrollably violent, arguing in court the situation on the ground in Portland is nowhere as extreme as federal officials portray it to be.
Protests in Oregon’s biggest city over White House immigration policies started in June, with a declared riot and arson arrests in mid-summer. The scene was largely calm until Trump declared in late September he was sending 200 Oregon National Guard troops to the city.
In a letter sent Friday to the Defense Department Office of Inspector General, a group of senators, including those from Oregon, asked for an inquiry into recent deployments of National Guard troops across the country.
The senators argued that deployments were “fundamentally un-Constitutional, dangerous for American civil rights” and risk “straining military readiness and resources,” according to the letter.
“We urgently request that you initiate an inquiry into the cumulative effects of these domestic deployments of U.S. active-duty 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.
The ruling comes as President Donald Trump on Sunday threatened to send the National Guard to San Francisco as his administration continues an effort to crackdown on a growing list of cities it claims to be ridden with crime.
“San Francisco was truly one of the great cities of the world, and then 15 years ago it went wrong, it went woke,” Trump said during an interview with Fox News anchor Maria Bartiromo Sunday.
“We’re going to San Francisco and we’re going to make it great.”
“Nobody wants you here,” California Gov. Gavin Newsom said in a social media post in response to Trump’s comments. “You will ruin one of America’s greatest cities.”
The president told Bartiromo the cities he feels are in need of troop deployment are almost exclusively “Democrat-run,” describing them as “unsafe” and “a disaster.” Trump also claimed he could, at any moment, invoke the Insurrection Act – a seldom-used law that allows the president to deploy military forces in the US in certain limited situations.
The mobilization of National Guard troops to cities like Chicago; Memphis, Tennessee; and Portland, Oregon, has been met with fierce backlash from residents as well as local and state leaders – including some who have gone so far as to sue the administration.
Federal deployments have also sparked pop-up protests in these cities and helped fuel a second “No Kings” rally over the weekend, where millions took part in more than 2,700 events across the country to protest the Trump administration.
Here’s the latest on Trump’s efforts to federalize troops in several US cities:
San Francisco
Trump toyed with the idea of deploying federal troops to the Bay Area last week when he told FBI Director Kash Patel that San Francisco was among the “great cities that can be fixed.”
“San Francisco neither needs nor wants Trump’s personal army on our streets,” California state Senator Scott Wiener, whose district includes San Francisco, said on X. “We don’t need Trump’s authoritarian crackdown in our city. Bottom line: Stay the hell out of San Francisco.”
Trump initially received support from Bay area tech billionaire and Salesforce CEO Marc Benioff, who told the New York Times ahead of his “Dreamforce” AI conference last week, he backed Trump’s troop deployment to the city. But Benioff later backtracked, saying on X he does not believe the National Guard is needed to address safety in San Francisco and his comments were made out of “an abundance of caution around the event.”
“I sincerely apologize for the concern it caused,” he said.
San Francisco Mayor Daniel Lurie has not directly commented on Trump’s comments, but said in a news conference last Friday crime in the city is down 30% – the lowest point in decades.
The city has faced a shortage of police officers but recently reported its largest surge of recruits in years, according to the San Francisco Police Department, with 3,375 entry-level applications so far this year, up more than 40% from last year.
For his part, Newsom sued the Trump administration in June over the federalization of the California National Guard to quell protests in Los Angeles and joined a lawsuit in Oregon earlier this month over Trump’s attempt to send federalized troops in Los Angeles to Portland to respond to protests there.
Memphis
A group of seven elected officials in Tennessee filed a lawsuit against the state’s governor and attorney general last week, challenging the deployment of the Tennessee National Guard to Memphis at the direction of Trump.
US Army National Guard members assist the Memphis Police Department in the entertainment district, Beale Street, in downtown Memphis, on October 16. – Karen Pulfer Focht/Reuters
“Governor Lee’s deployment violates both the Tennessee Constitution and state statutes, which allow the Guard to be called up only in the event of a rebellion or invasion—and only when the General Assembly declares that public safety requires it,” the officials said in a statement published by the National Immigration Law Center.
“No such conditions exist in Memphis today.”
Federal troops were seen in Memphis for the first time on October 10, the Associated Press reported, including soldiers accompanied by Memphis police officers patrolling at the Pyramid, an iconic landmark in the city.
Memphis Mayor Paul Young, defended the city, noting crime has fallen by double-digit percentages since last year, but acknowledged the situation is different from efforts to fight the federalization of troops in Portland or Chicago, CNN affiliate WMC reported.
“Memphis is different than L.A. and Chicago or Portland in that the governor of Tennessee and the president of the United States made the decision to bring the National Guard and the federal resources to the City of Memphis,” Young said Wednesday.
Memphis Police Chief Cerelyn “CJ” Davis said last week she hoped troops would help direct traffic and have a presence in public retail spaces, but not operate at checkpoints, the AP reported.
“From a public safety standpoint, we’re trying to utilize Guard personnel in non-enforcement types of capacities, so it does not feel like there is this over-militarization in our communities, in our neighborhoods, and that’s not where we’re directing those resources, either,” she said.
Chicago
Demonstrators protest during the “No Kings” march at Grant Park on Saturday in Chicago. – Joshua Lott/The Washington Post/Getty Images
Trump last Friday urged the Supreme Court to allow him to deploy the National Guard in Chicago, putting the legal fight over his ability to use those troops on American soil before the justices for the first time.
The emergency appeal follows a series of decisions from lower federal courts which temporarily blocked the administration’s efforts to mobilize troops.
On Thursday, the Chicago-based 7th US Circuit Court of Appeals let stand an order temporarily blocking that effort.
In Trump’s appeal, the administration said the lower court order “improperly impinges on the president’s authority and needlessly endangers federal personnel and property.”
The appeal describes the situation in Chicago as threatening, asserting that federal officials there have been “assaulted, attacked in a harrowing pre-planned ambush involving many assailants.”
Clashes between protesters and law enforcement in Chicago became the focus of courtroom discussions last week with a judge demanding answers from federal authorities over violent encounters with protesters.
US District Judge Sara Ellis said recent news reports were leading her to believe the Trump administration was not following her instructions to limit use of force and actions against journalists documenting Chicago protests.
Ellis last week expanded her restraining order, requiring all federal agents with body cameras involved in quelling protests to have them on when encountering demonstrators.
Her order, however, does not require agents to wear body cameras if they’re undercover, not in uniform or exempt from Customs and Border Protection, Immigration and Customs Enforcement or Department of Homeland Security policy.
CNN’s John Fritze, Danya Gainor, Bill Kirkos and Josh Campbell contributed to this report.
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