Trump-appointed judges seem on board with Oregon troop deployment

The U.S. 9th Circuit Court of Appeals appears ready to recognize President Trump’s authority to send troops to Portland, Oregon; court members are signaling they are open to a sweeping new reading of the president’s authority to put the boots on the ground in American cities.

A three-judge panel of the appeals court — including two Trump appointees in his first term — heard oral arguments Thursday after Oregon challenged the legality of the president’s order to send hundreds of troops to Portland. The administration claims that the city has become lawless; Oregon officials claim Trump manufactured a crisis to justify calling in the National Guard.

While the court has yet to rule, a ruling in Trump’s favor would mark a sharp turn to the right by the once-liberal milieu and likely set off a showdown at the Supreme Court over why and how the U.S. military can be used domestically.

“I’m trying to understand how any district court should step in and question whether the president’s assessment of ‘enforce the law’ was right or wrong,” said Judge Ryan D. Nelson of Idaho Falls, Idaho, who heard the arguments and was one of two Trump appointees.

“This is an internal decision-making process, and whether there are large numbers of protests or low-level protests, they can still impact his ability to enforce the law,” he said.

Another Trump appointee, U.S. District Judge Karin Immergut of Portland, had previously called the president’s rationale for federalizing Oregon troopers in his Oct. 4 temporary restraining order “completely disconnected from the facts.”

The facts of the situation in Portland were not discussed at Thursday’s hearing. The city has remained mostly quiet in recent months, with protesters occasionally engaging in brief clashes with authorities stationed outside the U.S. Immigration and Customs Enforcement building.

Instead, Nelson and Judge Bridget S. Bade of Phoenix, whom Trump once nominated as a Supreme Court nominee, questioned how much the facts matter.

“It seems a little counterintuitive to me that the president can direct his resources as he sees fit and the city of Portland can come in and say, ‘No, you don’t need to do this any differently,'” Nelson said.

It also seemed to support the Justice Department’s claim that “punishing” the president for waiting until the protests calmed down to deploy troops to quell them creates a perverse incentive to act first and ask questions later.

“It looks like a tortured reading of the statute,” the judge said. He later said, referring to the first battle of the US Civil War in 1861: “I’m not sure even President Lincoln could have brought power when he did that, because if he hadn’t done it right after Fort Sumter, [Oregon’s] The argument might be: ‘Oh, everything’s fine now.’”

Trump’s efforts to use troops to quell protests and support federal immigration operations have led to mounting legal challenges. The Portland deployment was held up by Immergut, which blocked Trump from federalizing Oregon troops. (A decision from the same case the next day blocks the deployment of already federalized troops.)

In June, a different 9th Circuit panel of two Trump appointees ruled that the president had broad — but not “unreviewable” — discretion to determine whether the facts on the ground met the threshold for military intervention in Los Angeles. Thousands of federal National Guard troops and hundreds of Marines were deployed over the summer amid widespread protests over immigration enforcement.

The June decision set a precedent for how any future deployments across the circuit’s wider region could be reviewed. This also sparked outrage among both those who oppose armed soldiers patrolling American streets and those who support them.

Opponents argue that repeated domestic deployments are tearing apart America’s social fabric and trampling on protest rights protected by the 1st Amendment. While soldiers have so far been called into action in Los Angeles, Portland and Chicago, many claim that the administration is using the military for political purposes.

“The military should not act as the domestic police force in this country except in very extreme circumstances,” said Elizabeth Goitein, senior director of the Liberty and National Security Program at New York University’s Brennan Center for Justice. “These conditions do not currently exist anywhere in the country, so this is an abuse of power and is very dangerous because of the precedent it sets.”

Supporters say the president has sole authority to determine the facts on the ground and whether they warrant military intervention. They argue that any control by the judiciary is an illegal usurpation of power aimed at thwarting the response to a legitimate and growing “invasion from within.”

“What they did to San Francisco, to Chicago, to New York, to Los Angeles, these are extremely unsafe places, and we’re going to fix them one by one,” Trump said in a speech to senior military officials last week. “This, too, is a war. This is a war from within.”

The 9th Circuit agreed to rehear the Los Angeles case with an 11-member “en banc” panel in Pasadena on October 22; This signaled a divide among Trump’s own justices over the limits of the president’s powers.

Still, Trump’s authority to call in troops on American cities is only the first piece of a larger legal puzzle unfolding before the 9th Circuit, experts said.

What federal troops are allowed to do after deployment is the subject of another court decision currently under review. The case could determine whether soldiers are barred from assisting in immigration raids, controlling crowds of protesters or exercising any other form of civilian law enforcement.

Trump officials have argued that the president can use the military as he sees fit, and that cities like Portland and Los Angeles could be in danger if soldiers do not come to the rescue.

“These are violent people and if we let our guard down at any point there is a serious risk that the violence will continue,” the Deputy Solicitor said. General Eric McArthur said. “The president has the right to say enough is enough and call in the National Guard.”