The state of Oregon and city of Portland want their day in court and oppose the dismissal request.
The Trump administration told a federal appeals court on Nov. 3 that it wants to withdraw its appeal of a ruling preventing the deployment of state National Guard troops to deal with violence directed against federal immigration facilities in Portland, Oregon.
A president may take over, or federalize, National Guard troops on an emergency basis in certain circumstances.
A lower court order temporarily blocking the deployment remains in effect.
Trump had said in a Sept. 27 post on Truth Social that he was sending troops “to protect War ravaged Portland, and any of our ICE Facilities under siege from attack by Antifa, and other domestic terrorists.”
The federal government’s motion to dismiss the appeal that is now pending before the U.S. Court of Appeals for the Ninth Circuit is necessary because one of the orders U.S. District Judge Karin Immergut issued blocking deployment expired on Nov. 1, the U.S. Department of Justice said in a new filing.
“Following expiration of the temporary restraining order, the district court issued a new preliminary injunction. This appeal from the temporary restraining order is thus now moot.”
The plaintiffs in the appeal—the state of Oregon and city of Portland—informed the U.S. Department of Justice “that they oppose this motion and intend to file a response,” the motion states.
The Ninth Circuit is in the process of preparing to hold an en banc hearing reviewing a 2–1 ruling issued on Oct. 20 by a three-judge panel of circuit court judges.
The panel had voted to stay Immergut’s temporary restraining order blocking deployment of the Oregon National Guard. It did not rule on her second temporary restraining order barring deployment of the California National Guard in Oregon.
The panel found that “it is likely that the President lawfully exercised his statutory authority under [Title] 10 [of] 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.’”
On Oct. 28, a majority of judges of the full Ninth Circuit voted to vacate the panel’s ruling and proceed with an en banc hearing on the ruling.
