Trump can command National Guard troops in Oregon, 9th Circuit rules
The 9th Circuit Court of Appeals on Monday handed over command of Oregon National Guard troops to the president, further raising the stakes in the ongoing multi-front judicial battle over military deployments to cities across the United States
The three-judge panel of appeals, including two members appointed by Trump in his first term, found that the law “does not limit the facts and circumstances that the President may consider” when deciding whether to send troops domestically.
The justices found that “the President has the authority to determine and weigh the relevant facts” in granting the mandate.
The decision was in stark contrast to the lower court judge’s ruling earlier this month.
U.S. District Judge Karin Immergut of Portland had previously called the president’s rationale for federalizing Oregon troopers “completely disconnected from the facts” in her Oct. 4 temporary restraining order.
The appellate judges said they were guided by a precedent set in the 9th Circuit this summer, when California tried and failed to take back control of federal troopers in and around Los Angeles.
Another hearing in the California case is scheduled for appeals court this week, and the court’s earlier decision could be reversed. At the same time, a nearly identical deployment in Illinois is being reviewed by the Supreme Court.
For now, exactly which troops can be deployed to Portland is fiercely contested in U.S. District court, where Immergut blocked the administration from flooding Portland with Guardsmen from California.
The issue is expected to be decided by the Supreme Court later this fall.
The justices hearing the Oregon case summarized the conflicting legal theories in their opinions. Two members of the delegation who supported Trump’s authority over the soldiers argued that the law was clear.
Judge Ryan D. Nelson, appointed by Trump, wrote in the same opinion that the court overstepped its bounds in taking the case and wrote, “The President’s decision in this area is absolute.”
“Reasonable minds would disagree on the appropriateness of the President’s National Guard deployment in Portland,” Nelson wrote. “But federal courts are not the panacea to resolve this dispute; the political process is not (at least according to current Supreme Court precedent).”
Clinton appointee Susan P. Graber said the appeals court had veered into parody.
“Given the well-known tendency of Portland protesters to wear chicken suits, inflatable frog costumes, or nothing at all when expressing opposition to the methods used by ICE, observers may be tempted to view the majority’s decision accepting the government’s characterization of Portland as a war zone as completely absurd,” he wrote.
But he wrote that the risks of sending armed soldiers into American cities for nothing more than “propaganda” are much higher.
“I urge my colleagues on this court to act quickly to vacate the majority decision before the illegal deployment of troops under false pretenses occurs,” Graber wrote. “Above all, I ask those following this case to maintain their faith in our judicial system for a while longer.”
