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 one of two lower court decisions to block the deployment as
the appeal process plays out, but because the second decision is still in
force, the troops can’t immediately be deployed.
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.
In
light of the appellate court’s ruling, the Trump administration is asking that
Judge Immergut’s second order be thrown out or paused, arguing in a Monday
evening filing that both lower court orders relied on the same legal reasoning.
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.”
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.
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.
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.
“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
The
state of Illinois and the city of Chicago in a court filing Monday asked the US
Supreme Court to block the Trump administration emergency request to keep National
Guard troops in the state to help combat protests and perceived crime despite
objections from local officials.
Earlier
this month, a district court issued a temporary restraining order against the
federalization and deployment of troops in the city. The Court of Appeals for
the Seventh Circuit partially stayed that ruling, allowing federalization but
not deployment. The temporary restraining order expires Thursday.
Now,
the Supreme Court is being asked to decide whether to allow the deployment
while the legal battle continues.
The
filing says there is no rebellion or inability to execute federal law in
Illinois, arguing that the administration hasn’t met legal requirements to
activate troops over the state’s dissent.
“No
protest activity in Illinois has rendered the President unable to execute
federal law,” the filing says, describing protests at the ICE facility in
Broadview as “small” and manageable by local authorities and saying they “never
hindered the continued operation of the ICE facility there.”
The
filing addresses constitutional concerns that the federal government is
pressuring Illinois to either use its own National Guard to carry out the Trump
administration’s priorities or let federal troops take over, stating, “Such
coercion is independently unconstitutional.”
In
Trump’s appeal of the temporary restraining order, 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.
