PORTLAND, Ore. — An appeals court on Monday put on hold a lower-court ruling that kept President Donald Trump from taking command of 200 Oregon National Guard troops. However, Trump is still barred from actually deploying those troops, at least for now.
U.S. District Judge Karin Immergut, a Trump appointee, issued two temporary restraining orders early this month — one that prohibited Trump from calling up the troops so he could send them to Portland, and another that prohibited him from sending any National Guard members to Oregon at all, after the president tried to evade the first order by deploying California troops instead.
The Justice Department appealed the first order, and in a 2-1 ruling Monday, a panel from the 9th U.S. Circuit Court of Appeals sided with the administration. The majority said the president was likely to succeed on his claim that he had the authority to federalize the troops based on a determination he was unable to enforce the laws without them.
However, Immergut’s second order remains in effect, so no troops may immediately be deployed.
The administration has said that because the legal reasoning underpinning both temporary restraining orders was the same, the second one was also invalid, and the majority opinion also said the two TROs “rise or fall together.”
Soon after the ruling Monday, the Justice Department asked Immergut to immediately dissolve her second order, which would allow Trump to deploy troops to Portland. The Justice Department argued that it is not the role of the courts to second-guess the president’s determination about when to deploy troops.
“The Ninth Circuit’s decision staying the first TRO is a significant change in law that plainly warrants dissolution of this Court’s second TRO,” the administration’s lawyers wrote.
Oregon Attorney General Dan Rayfield, a Democrat, said he would ask for a broader panel of the appeals to reconsider the decision.
“Today’s ruling, if allowed to stand, would give the president unilateral power to put Oregon soldiers on our streets with almost no justification,” Rayfield said. “We are on a dangerous path in America.”
The Justice Department did not return an email seeking comment.
Trump’s efforts to deploy National Guard troops in Democratic-led cities have been mired in legal challenges. A judge in California ruled that his deployment of thousands of National Guard troops in Los Angeles violated the Posse Comitatus Act, a longstanding law that generally prohibits the use of the military for civilian policing, and the administration on Friday asked the U.S. Supreme Court to allow the deployment of National Guard troops in the Chicago area,
Mostly small nightly protests, limited to a single block, have been occurring since June outside the U.S. Immigration and Customs Enforcement building in Portland. Larger crowds, including counterprotesters and live-streamers, have shown up at times, and federal agents have used tear gas to disperse the demonstrators.
The administration has said the troops are needed to protect federal property from protesters, and that having to send extra Department of Homeland Security agents to help guard the property meant they were not enforcing immigration laws elsewhere.
Immergut previously rejected the administration’s arguments, saying the president’s claims about Portland being war-torn are “simply untethered to the facts.” But the appeals court majority — Ryan Nelson and Bridget Bade, both Trump appointees — said the president’s decision was owed more deference.
Bade wrote that the facts appeared to support Trump’s decision “even if the President may exaggerate the extent of the problem on social media.”
Judge Susan Graber, an appointee of former President Bill Clinton appointee, dissented. She urged her colleagues on the 9th Circuit to “to vacate the majority’s order before the illegal deployment of troops under false pretenses can occur.”
“In the two weeks leading up to the President’s September 27 social media post, there had not been a single incident of protesters’ disrupting the execution of the laws,” Graber wrote. “It is hard to understand how a tiny protest causing no disruptions could possibly satisfy the standard that the President is unable to execute the laws.”
