The ruling vacates an Oct. 20 order issued by a three-judge panel of the Ninth Circuit.
A federal appeals court on Oct. 28 threw out an order allowing President Donald Trump to deploy National Guard troops to deal with violence directed against federal immigration facilities in Portland, Oregon.
Trump had said in a Truth Social post on Sept. 27 that he was sending troops “to protect War ravaged Portland, and any of our [Immigration and Customs Enforcement] Facilities under siege from attack by Antifa, and other domestic terrorists.”
The U.S. Court of Appeals for the Ninth Circuit also decided to hold an “en banc” hearing in the case known as State of Oregon v. Trump.
In federal courts of appeals, en banc means all the judges of the circuit rehear a case. However, the Ninth Circuit has so many members—29 active judges—that it is impractical for all of them to sit together for a rehearing. Instead, the Ninth Circuit will select 11 judges to conduct a limited en banc hearing.
The chief judge of the Ninth Circuit, Mary Murguia, issued a brief order on Oct. 28 stating that “a majority of nonrecused active judges” in the circuit had voted to rehear the case and to vacate an Oct. 20 order handed down by a three-judge panel of circuit court judges. The new order did not indicate how many judges voted or how they voted.
The three-judge panel of the Ninth Circuit on Oct. 20 had voted 2–1 to stay an Oct. 4 order of District Judge Karin Immergut of the U.S. District Court for the District of Oregon, who blocked a move by Trump to deploy members of the Oregon National Guard to Portland.
The panel found that “it is likely that the President lawfully exercised his statutory authority under 10 U.S.C. [Section] 12406(3), which authorizes the federalization of the National Guard when ‘the President is unable with the regular forces to execute the laws of the United States.’”
The Ninth Circuit temporarily suspended the panel’s order on Oct. 24 to allow the full circuit to consider whether to order an en banc rehearing. The Oct. 28 order followed.
