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.
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.”
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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