Federal district courts and appeals courts are at odds over the legality of President Donald Trump‘s deployment of the National Guard, as a lower court in Oregon prepares to hear arguments this week over whether Trump can send troops to Portland despite an appeals court ruling multiple times that, at least on a temporary basis, he has the power to do so.
A three-judge panel in the 9th Circuit Court of Appeals ruled in Portland and Los Angeles that Trump can federalize and deploy state National Guard troops to protect federal assets after two separate district court judges, one in Oregon and one in California, tried to block the deployments while litigation proceeded.
In Portland earlier this month, U.S. District Judge Karin Immergut blocked Trump’s federalization of the Oregon National Guard and troops’ deployment to Portland. Shortly after her ruling, the administration attempted to send federalized National Guard troops from out of state to Portland, so Immergut issued a subsequent order to block any federalized National Guard forces from being deployed to the city.
When the U.S. Court of Appeals for the 9th Circuit lifted Immergut’s first order last week, there was disagreement among the three judges on the panel over whether the second order, which blocked any federalized troops from being deployed to Portland, would also be lifted. The two-judge majority on the panel believed that the logic of the two orders was directly connected and therefore both orders should be lifted by their ruling. In contrast, the lone dissenting judge believed that only the first order was before them to decide, and therefore, the panel shouldn’t have had the authority to decide it yet.
The disagreement has given Immergut the chance to attempt to freeze one of the Trump administration’s legal victories, as she is currently deciding if the appeals court ruling should also overturn her second order. Immergut held a hearing on the matter on Friday but has yet to make a ruling.
A similar incident occurred in the legal battle over the National Guard deployment in Los Angeles, where U.S. District Judge Charles Breyer ruled the federalization and deployment of the California National Guard by Trump was unlawful. Breyer’s order was quickly lifted by a different 9th Circuit panel, but Breyer argued he could still rule on whether the troops violated federal law in their deployment.
Breyer held a three-day trial in August over whether the troops violated the Posse Comitatus Act, which prevents federal troops from being used for regular law enforcement activities, and ruled that the National Guard troops violated that law. Breyer’s ruling, which he issued despite the appeals court greenlighting the deployment months earlier, was again lifted by the 9th Circuit.
The other major legal battle over Trump’s National Guard deployment, in Chicago, has not yielded similar victories for the Trump administration, with both the federal district court and the appeals court ruling against the administration. Because of those adverse rulings, the administration has appealed to the Supreme Court’s emergency docket, where it still waits for the justices to weigh in.
While litigation over the deployments to Los Angeles and Chicago continues, the administration’s Portland troop deployment faces a pivotal week in the courtroom.
The 9th Circuit panel’s ruling allowing Trump’s federalization and deployment of the Oregon National Guard to Portland was temporarily halted again late Friday evening, as the full bench of the 9th Circuit now decides whether to review the three-judge panel’s ruling. While there is no hard deadline for a decision by the en banc court, the administrative stay of the ruling is scheduled to expire at 5 p.m. local time on Tuesday.
Even if the full 9th Circuit decides it will not review the panel’s favorable ruling for the Trump administration, the deployment will still be subject to a three-day trial headed by Immergut beginning Wednesday.
The trial will center on Oregon officials’ claims that the administration’s deployment of troops to Portland would violate federal law and the 10th Amendment.
The state has claimed the administration has failed to show sufficient evidence that Trump is unable to protect federal immigration enforcement operations with regular forces, while the administration has claimed that, under the law, the president is the one who determines whether that standard has been met, rather than a court.
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Immergut ruled in her initial order against the Trump administration that while Trump is entitled to “a great level of deference” on the matter, she believed he had not shown sufficient evidence to suggest unrest required the deployment of the National Guard. She said the president’s determination was “simply untethered to the facts.”
The Trump administration’s use of the National Guard to protect federal assets and officials, while not common in recent decades, is within its legal power, according to legal experts.