The full bench on the U.S. Court of Appeals for the Ninth Circuit will review the legality of President Donald Trump‘s federalization and deployment of the National Guard to Portland, tossing out the short-lived win that a three-judge panel on the court had handed the president last week.
The full appeals court announced in a brief order late Tuesday that it would review the case, noting that a majority of the judges on the Ninth Circuit agreed on rehearing the case en banc and vacating the 2-1 ruling from a three-judge panel on the court, which allowed the federalization and deployment of National Guard troops to Portland. The order did not establish a timeline for when the full bench would rehear the case.
The lower court order at the center of the en banc review came from U.S. District Judge Karin Immergut earlier this month. Immergut ruled that Trump had unlawfully federalized and deployed troops from the Oregon National Guard to Portland to defend federal assets and personnel. Immergut later issued a second order blocking any federalized troops from being deployed to Portland, after the Trump administration attempted to deploy troops from out of state to the city.
The three-judge panel’s ruling had lifted the first order from Immergut, but the second order remained in effect, barring any troops from being sent into Portland. The two judges in the majority, both Trump appointees, had argued Immergut’s second order should also be lifted, while the lone dissenting judge argued it should not be.
Immergut held a hearing late last week to hear arguments on what she should do regarding the second order, following the appeals court panel’s ruling that set aside her first. She had not issued a ruling on the matter before the full appeals court vacated the three-judge panel’s favorable ruling toward the Trump administration Tuesday evening.
In her federal district court, Immergut will hold a three-day trial beginning Wednesday over whether Trump lawfully federalized and deployed troops to Portland, even as the full appeals court now weighs action on her first temporary restraining order.
The three-day trial will mark the first such proceeding on the merits of the deployment and federalization of troops to a Democrat-run city amid unrest over immigration enforcement since Trump began doing so with Los Angeles in June. Other cases remain focused on procedural issues.
COURTS BATTLE ONE ANOTHER OVER NATIONAL GUARD AS TRUMP’S PORTLAND DEPLOYMENT FACES TRIAL
U.S. District Judge Charles Breyer held a trial in August over whether the deployed troops had violated the Posse Comitatus Act, which prevents federal troops from being used for regular law enforcement activities, but did not address the question of the legality of the deployment itself.
Trump’s deployment of the National Guard to Los Angeles, Portland, and Chicago has faced lawsuits over whether he has the authority to do so. The Chicago deployment was the first to end up on the Supreme Court’s emergency docket after both a federal district court and appeals court ruled against Trump. The high court could issue an order on the Chicago deployment at any time, as the case has been fully briefed.