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Appeals court backs Trump’s National Guard deployment in Portland

The 2-1 ruling, endorsed by two Trump appointees to the 9th Circuit Court of Appeals, is the latest win for Trump’s effort to deploy the military into cities.

By Kyle Cheney and Josh Gerstein

A federal appeals court panel has backed President Donald Trump’s authority to send National Guard troops into Portland, Oregon, concluding that though the president’s claims on social media “may exaggerate” the violence in the city, he may still have had a valid basis for the deployment.

The 2-1 ruling, endorsed by two Trump appointees to the 9th Circuit Court of Appeals, is the latest win for Trump’s effort to deploy the military into cities across the country over the fierce objections of state and local leaders. Trump has cited violence outside immigration facilities as a basis for the deployments, saying it has impeded his ability to enforce the law, but governors and mayors say there has been minimal unrest and Trump is using largely peaceful protests as a pretext to expand his power.

The Supreme Court appears poised to resolve the matter. The high court is already considering a similar dispute where a federal appeals court kept in place a block on deployment of the National Guard to the Chicago area.

Though the 9th Circuit panel’s decision lifts a lower court’s order that blocked Trump from federalizing Oregon’s National Guard troops, the immediate practical impact of the ruling was unclear. That’s because the same lower-court judge, Karin Immergut, issued a second order after Trump moved to send California National Guard troops to Oregon, temporarily prohibiting any use of federalized troops in the state. The administration has not yet appealed that second order, although it said it expected Immergut to lift it if the appeals panel ruled in Trump’s favor.

In their ruling, 9th Circuit Judges Ryan Nelson and Bridget Bade said the level of violence at the Portland immigration facility and other instances at similar sites elsewhere in the country gave Trump a “colorable” argument that he was unable to enforce federal law. That, along with rebellion or invasion, is one condition that allows a president to federalize National Guard forces.

“In Portland, protests have endured for months, and the [Portland police have] been either unwilling or unable to respond to the disturbances,” the appeals judges wrote.

Nelson and Bade said Immergut relied too heavily on Trump’s social media commentary — calling Portland “war ravaged” — to conclude that his deployment was “untethered” from reality, noting that the unrest had required a surge of law enforcement from the Federal Protective Service to contain.

The 9th Circuit panel majority repeatedly cited a similar decision issued by three colleagues permitting Trump’s deployment of Guard troops to Los Angeles earlier this year. In the ruling, the judges said Trump is owed great deference in determining whether civil unrest reaches a point in which the military may be called in for support.

The majority said Immergut used a faulty definition of rebellion in her decision, but the appeals judges did not address whether Trump had a valid claim that such unrest was underway when he sent in the Guard. (They did say they were not endorsing Trump’s description of Portland as a “war zone.”)

The appeals panel’s dissenting judge, Clinton appointee Susan Graber, called the majority’s decision ”absurd,” pleaded with her 9th Circuit colleagues to quickly reverse it and urged the public to “retain faith in our judicial system for just a little longer.”

“We have come to expect a dose of political theater in the political branches, drama designed to rally the base or to rile or intimidate political opponents. We also may expect there a measure of bending—sometimes breaking—the truth,” Graber wrote. “By design of the Founders, the judicial branch stands apart. We rule on facts, not on supposition or conjecture, and certainly not on fabrication or propaganda.”

Graber emphasized that even though there had been unruly protests in Portland in June, they had largely subsided and by September routinely featured 30 or fewer demonstrators and virtually no violence or requests for local police assistance.

“A pot of tepid water is not a pot of boiling water, and it cannot hurt you, even if it was boiling three hours earlier,” Graber wrote.