The latest order in the legal back and forth puts a legal stay on deployment until Oct. 28.
A federal judge in the U.S. Court of Appeals for the Ninth Circuit has temporarily halted a previous order that permitted President Donald Trump to deploy National Guard troops in Portland.
The deployment of troops, ordered by Trump amid unrest at federal immigration facilities, is now on legal pause until Oct. 28, pending a decision by the court’s entire panel of judges as to whether to proceed with the case en banc.
En banc refers to the process in which all active judges on an appellate court gather to discuss and decide a case collectively, instead of a smaller panel of judges.
The latest order, issued on Oct. 24 by Circuit Judge Sidney R. Thomas, stays the court’s Oct. 20 directive granting a stay pending appeal in State of Oregon and City of Portland v. Donald J. Trump et al. The suspension will last until 5 p.m. on Oct. 28.
“This administrative order expresses no views on the merits of this matter and is not a reconsideration of the earlier stay order,” the document reads.
The litigation is over Trump’s directive to federalize Oregon National Guard units and deploy them to secure Immigration and Customs Enforcement facilities in Portland, where protests have led to violence against federal agents.
Oregon Attorney General Dan Rayfield filed the suit on Sept. 28, arguing that the president overstepped constitutional bounds by commandeering state troops without the governor’s permission.
“Sending in 200 National Guard troops to guard a single building is not normal,” Rayfield said in a September statement. “If you had a concern about safety at your own home, you’d make a few calls and fill the gaps—not call in an army.”
Judge Karin Immergut of the U.S. District Court for the District of Oregon, who was appointed by Trump in 2019, initially enjoined the deployment on Oct. 4, invoking “a longstanding and foundational tradition of resistance to government overreach, especially in the form of military intrusion into civil affairs” as part of her rejection of the federal government’s request.
“This is a nation of Constitutional law, not martial law,” she wrote. “Defendants have made a range of arguments that, if accepted, risk blurring the line between civil and military federal power—to the detriment of this nation.”
A subsequent ruling on Oct. 5 expanded the block to National Guard contingents from other states, including California.
The Ninth Circuit’s three-judge panel levied a 2–1 decision on Oct. 20, overturning Immergut’s injunction and permitting the administration to proceed with the deployment as the appeal moves through the court system. The Ninth Circuit could be inclined toward the federal government’s position.
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.’”
A president may take over, or federalize, state National Guard troops on an emergency basis in certain circumstances, including to suppress insurrections, rebellions, or to enforce federal laws when state authorities are unable or unwilling to do so, according to the Insurrection Act of 1807.
The administration frames the situation on the ground in Portland as a “criminal insurrection.” White House spokespersons have expressed concern about arson and assaults on officers.
“Rioters have been charged with arson and assaulting police officers. … This isn’t a peaceful protest that’s under control,” White House spokesperson Abigail Jackson previously told The Epoch Times.
In response, Oregon officials have championed local autonomy.
“Oregon will continue to stand firm in our values of community, accountability, and local control,” Rayfield stated.
Attorneys general from 20 states filed an amicus brief on Oct. 8, arguing that the deployment is “responsible, constitutional, and authorized by statute” amid threats from “violent rioters.”
