9th Circuit Allows Trump to Send National Guard to Portland
“Even if the President may exaggerate the extent of the problem on social media, this does not change that other facts provide a colorable basis to support the statutory requirements.”
A three-judge panel, ruling 2-1, on the 9th Circuit Court of Appeals froze a lower court order that had stopped President Donald Trump from sending the Oregon National Guard to Portland.
U.S. District Judge Karin Immergut placed two restraining orders on Trump: no federalization of the Oregon National Guard & sending in the Oregon National Guard, and no sending in the California National Guard.
The 9th Circuit already lifted Immergut’s order restraining Trump from federalizing the Oregon National Guard.
That second restraining order stopped Trump from sending in any federalized National Guard troops to Oregon.
Trump did not appeal that second restraining order, only the first.
National Guard in Oregon
Judges Ryan Nelson and Bridget Bade found “that it is likely that the President lawfully exercised his statutory authority under 10 U.S.C. § 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.’”
Therefore, they believe Trump will “likely succeed on the merits of their appeal.”
Remember, Trump isn’t sending in the National Guard to police the area or make arrests.
Trump wants the National Guard to protect federal buildings and property.
The panel also slammed the district court for its decision by ignoring the violence that has occurred at the ICE facility in Portland (I eliminated the citations):
The district court then discounted the violent and disruptive events that occurred in June, July, and August, including the resulting closure of the ICE facility for over three weeks in June and July and focused on only a few events in September. Thus, the district court discounted most of the evidence of events in Portland from June through September.
Section 12406 contains no such limitations. Instead, by its plain text, § 12406(3) requires only a determination that “the President is unable with the regular forces to execute the laws of the United States.” The statute delegates the authority to make that determination to the President and does not limit the facts and circumstances that the President may consider in doing so. Indeed, the inherently subjective nature of this evaluation demonstrates that the President has the authority to identify and weigh the relevant facts under § 12406(3). The President can, and should, consider the totality of the circumstances when determining whether he “is unable with the regular forces to execute the laws of the United States.”
Nelson and Bade then criticized the district court for relying too much on Trump’s social media posts instead of the actual acts on the ground:
This was error for two reasons. For one, under Newsom, we consider whether the facts provide a colorable basis to support the conclusion that the executive branch is unable with regular forces to execute the law. Even if the President may exaggerate the extent of the problem on social media, this does not change that other facts provide a colorable basis to support the statutory requirements. For another, the President’s social media post characterizing Portland as “War ravaged” may reasonably be viewed as a part of his assessment under § 12406(2)’s “rebellion” prong, which we do not reach.
Moreover, § 12406(3) cannot be analyzed solely based on external protests and violence. We must also consider the executive’s internal assessment of its ability to enforce the laws. The record reflects that 115 FPS [Federal Protective Service] officers—nearly 25% of FPS officers nationwide—were diverted to Portland. The President may reasonably rely on this evidence in determining whether he is unable to execute the law. The dissent only reaches a different conclusion by characterizing this evidence as “staffing difficulties” and committing the same error as the district court in discounting, minimizing, and discrediting Defendants’ undisputed evidence on this point. While Defendants bear a burden, the dissent demands (as did the district court) far more than what is required to support a colorable assessment. And that is error under Newsom.
The judges did a great job outlining the violence at the ICE facility, too. I mean:
Here, like Newsom, the undisputed facts show that protesters damaged a federal building, leading to its closure for over three weeks, attempted to burn the building down, placed chains on the doors, attempted to breach the front door of the building and broke the front glass door, threw objects at the building, including rocks, sticks, and a mortar, and launched M80 fireworks at federal officers, assaulted federal officers, shined lasers at officers’ eyes, and doxed federal officers.
The mic drop: “In Portland, protests have endured for months, and the PPB [Portland Police Bureau] has been either unwilling or unable to respond to the disturbances at the Lindquist Building, creating an irregular and unsustainable strain on ICE and FPS.”
Second Restraining Order
I mentioned above how Trump did not appeal the second restraining order that stopped him from sending any federalized National Guard troops to Portland.
The majority noted it because the dissenting judge said the “Defendants face no irreparable harm because [of] the second TRO” even though that issue was not in front of the panel.
Nelson and Bade rightfully pointed out (emphasis mine):
But this argument lacks merit. The district court stated that it granted the second TRO based on the same legal reasoning it provided in its order issuing the first TRO. Defendants are thus correct that the first TRO and the second TRO rise or fall together on the merits of the issues raised in this motion for a stay pending appeal. And the dissent does not challenge that common sense conclusion.
Whether the second TRO could be extended to preclude the deployment of members of the California National Guard is a separate issue. But this provides no basis for the dissent’s conclusion that Defendants are not harmed when they are prevented from enforcing federal immigration law by federalizing and deploying members of the Oregon National Guard.
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Comments
Took some time for LI to cover this…. 🙂
This decision came down while Andrew Branca was dissecting POTUS brief to SCOTUS on the issue…
And it’s GLORIOUS!
https://www.youtube.com/live/SjvhxhOkGuM
When you’ve lost the 9th Circuit…
Donald Trump is the worst King this country has ever had.
Luck of the draw and the long game. Trump appointed the two judges in the 2-1 Trump favorable decision.
Yeah. The times, they sure are a-changin’ in the old Ninth Circuit.
Maybe it’s something in the lack of water.
Rules of engagement are critical.
If they are going to be sitting ducks who cannot arrest and just be targets for protestors then sending them is stupid.
Mostly they will be used to secure the Federal facilities doing what the Fed LEO are doing now when they sortie to push back the mob when vehicles/personnel arrive/exit. Every Federal LEO freed up from site security is another LEO out performing active LEO missions. While a squad of NG troops can’t ‘arrest’ they can certainly detain and secure until Federal LEO comes over to ‘arrest’. It isn’t gonna be up armored vehicles and crew served weapons or NG troops performing primary LEO duties. Their job is gonna be to extend the reach/effectiveness of the federal LEO already there with extra bodies.
Looks like one judge needs to read Title 10.
Title 10 is only part of the dissenting judge’s analysis. Being woke has its own “truth.”
Not only does she have her own ‘truth’ (for example, in her opening paragraph, she asserts that “the majority’s ruling … accepts the government’s characterization of Portland as a war zone,” while the majority notes that her assertion is clearly erroneous [n.11]), but she also “strenuously dissents.” Does she think that by “strenuously” dissenting it somehow carries more weight than a dissent without that adverb? The majority decision is the legal ruling. The dissent is no such thing.
Maybe KBJ’s babbling has spread and influenced other dissenters. I know. Maybe she is just speaking truth to power.
The dissenting judge is one Susan Graber, She’s a JAWFL or Jewish AWFL A Wellesley/Yale graduate who attended Yale with her Majesty and Bill Clinton. Ugh. I feel like I need to take a shower now.
She’s meshuga.
“It is only when you say, ‘women are fundamentally changing the bedrock institutions of our society, and that might be bad’ that you start to get into trouble… Feminization is not just an interesting new development that has had some pluses and minuses, feminization in the case of many important institutions is a bad thing — in a few cases, so bad as to threaten the end of civilization. The rule of law, for example, is a very important thing; it’s also very fragile. It requires a deep commitment to objectivity and clear rules — even when those rules yield an outcome that is ‘not nice.’ I do not want judges who are more interested in ‘context and relationship’ than in what the law says.”
A stirring 18-minute presentation by Helen Andrews at NatCon 5 last month on “The Great Feminization”:
https://www.youtube.com/watch?v=EWLbq7PlrIA
The president should not have to wait around for permission from the judiciary to do his duties,…If only Trump would grow a pair!
Its tempting, but the result would be disastrous.
This administration has shown tremendous patience when dealing with these BS district court judicial overreaches.
They’re playing the long game: Scrupulously complying no matter how absurd the ruling, and then appealing and winning on appeal (sometimes having to appeal again to SCOTUS).
The end result is actual fantastic: They’re building a substantial collection of recent precedents upholding the President’s actual Constitutional authority in a wide variety of areas.
In many cases, that authority had long been circumscribed by Federal Law. Those restrictions are, one by one, being tossed in the dustbin of history and the Constitution is being set back in its rightful place.
Once again, an issue got before people who aren’t retards, and they overturned the retard.
So the President ISN’T the Commander In Chief! Some cheesy run of the mill judge who is on call on any given day is the Commander In Chief. Nice to know!
The president is commander in chief of the armed forces. That doesn’t mean he gets to do whatever he likes. He can only use the armed forces as he is authorized by statute. And interpreting the statutes is up to the courts. If the courts find that Congress has not authorized the president to do something, then he has not been authorized and he can’t do it. In this case the district court judge was wrong, and the appeals panel has reversed it.
you just like reading your own posts, don’t you?
Random low level courts are not the check on the president, Democrat.
Congress and the Supreme Court are.
And no one else.
Milhouse’s avocation is to explain to us ungrateful colonists exactly what laws Parliament has passed that allow King George III to do whatever the * abomination it is that he’s doing to us this week.
Shut your filthy mouth, you lying demon from Hell.
The constitution vests the judicial power with all federal courts. There is nothing special about the Supreme Court. Every district court has that same judicial power, subject to review by higher courts.
What law is it that you pretend to know, Democrat?
There is nothing special about the Supreme Court.
What festering third world hellhole are you posting from as to not know that the Supreme Court is the highest court in the land?
Such a display of ignorance is truly sad, even from you, who spew lie after lie all the while calling those who refute you with facts ‘liars’.
Shut up, you vile piece of filth.
The constitution, which you have never read, vests the judicial power with all federal courts. That means every federal district court has that power, which is “to say what the law is”. And the president has no inherent authority to call up the National Guard; he is authorized to do so only by statute, which every district court is authorized to interpret. So your claim that only the Supreme Court can check the president is an outright fabrication.
CT do ‘interpret’ statutes. Though it must be said that the inferior district courts seem to have developed a bad habit of choosing to ignore relevant precedent to include very pointed rulings from SCOTUS on substantially similar issues within the last year.
It might be well to advise the inferior judiciary that when they so casually disregard binding precedent when they find it inconvenient …..they are in fact providing a new ‘precedent’ for the Executive to eventually ignore the out of control inferior court rulings which themselves violate/ignore controlling precedent. No whining about ‘norms’ under those conditions.
Here the Circuit majority applied the well established precedent that the statute provides for a determination which is wholly in the hands of the Executive and not subject to Judicial review. That said the actions of the Troops during their deployment is certainly subject to review if criminal or unconstitutional acts occur but not the decision to bring them into Federal Service or how/where/why to deploy them.
No, it did not. The statute says no such thing, and the majority explicitly rejected that position.
In fact nowhere in the statute does it say that the president gets to make the determination at all. But of course it’s obvious that in the first instance it has to be the president who makes it, because who else could? So it’s implied that he makes the initial determination, and then whoever doesn’t like it can challenge it.
So the president makes the initial determination and the courts can review it, but they should give it great deference. And that’s where the majority said the district judge erred. She said she was giving the President great deference, but she clearly didn’t. “While the district court cited this highly deferential standard, Oregon, 2025 WL 2817646, at *9, it erred by failing to apply it. […] Rather than reviewing the President’s determination with great deference, the district court substituted its own determination of the relevant facts and circumstances. That approach is error under Newsom.”
Milhouse,
You are arguing against yourself. I didn’t claim the statute explicitly gives the POTUS the decision but instead that the statute implies it and that the existing precedent (which binds district Judges) has held the POTUS is the ‘decider’. I already conceded that the manner of employing the troops is then subject to constitutional review.
You subsequently acknowledge these points. Not sure what you are arguing.
The larger point is that the district courts must stop their unconstitutional power grab. They are bound by the precedent of their circuit and SCOTUS but lately many of them seem to act as if they are independent of any constraint. IMO there will be a case where a district judge issues a ruling that is out of step with precedent and outside their power that the Executive chooses to pointedly …not ignore, but embrace as THE vehicle/object lesson to remind the judiciary of the practical limitations of their power and authority. IOW the Executive will tell some district judge to pound sand and keep doing whatever that inferior court judge tried to unconstitutionally block. No whining when it happens.
The creature doesn’t actually argue at all.
It’s purpose is demoralization. To fool the gullible among us into thinking that, despite our best efforts, the left is always correct, and that they “sadly” will always win and there’s nothing we, so well meaning and fighting the good fight, can do about it.
Milhouse seeks to engender hopelessness.
I seek to make the Democrat’s brain explode and his eyes and lying tongue fly forth from his head on fountains of blood.
Chief, you said “the statute provides for a determination which is wholly in the hands of the Executive and not subject to Judicial review.” That is not true. The statute says not one word about the president making the determination, and this panel majority explicitly rejected your contention. Did you read the quotes I provided? Again: “Thus, Plaintiffs’ claims are justiciable and the President’s decision to federalize the National Guard is subject to judicial review.”
The district judge’s error here was not in daring to review the president’s decision, but in using the wrong standard to do so. She explicitly acknowledged the correct standard, and claimed to be using it, but she clearly wasn’t, and that’s the error the appeals panel corrected. Obeying precedent requires actually doing so, not just saying you are.
So no, I did not acknowledge your point, I completely refuted it. I expect you to read the quotes I provided, and acknowledge that they refute your claim.
Azathoth is an evil creature, a deliberate liar and slanderer. It knows very well that I am not a Democrat or a leftist of any kind, and it deliberately lies and defames me. It is Azathoth who deserves the gory death that it wishes on me. Just drop dead.
No shit. Another activist judge reversed. How is that resistance going? All of these judges need to be removed from the bench yesterday
There will, as always, be ZERO consequences for the District Court “judge”.
And, yes, I understand Trump appointed her in his first term. Something about Blue Slips and only being able to get judges seated in D controlled States if they are libtarded enough that at least one of the States 2 D Senators will return a Blue Slip for them.