Appeals Court Ruling Allows Trump to Deploy National Guard Troops to Portland

Deployment can move forward, for now, under a preliminary ruling by the U.S. Court of Appeals for the Ninth Circuit. But legal wrangling will likely continue.

The Trump administration can proceed with deploying National Guard troops to Portland, Ore., under a ruling Monday by the U.S. Court of Appeals for the Ninth Circuit that dismissed a lower court’s contention that protests in the city have been largely peaceful and under control.

The appellate ruling lifted a temporary block on the deployment of Oregon soldiers by Judge Karin J. Immergut of the Federal District Court for the District of Oregon. It was not immediately clear whether the order also allowed President Trump to use National Guard soldiers from other states, as he has suggested he might do.

Lawyers for Oregon and the city of Portland immediately asked the U.S. Court of Appeals for the Ninth Circuit for what’s known as an “en banc” rehearing, an appeal before the chief circuit judge and 10 randomly selected judges. And on Monday afternoon, a Ninth Circuit judge requested a vote among active members of the appeals court on whether to hold an en banc hearing. Lawyers for both sides have until midnight Wednesday to file their arguments.

For now, a second temporary restraining order issued by Judge Immergut, which covered all federalized National Guard troops, not just those from Oregon, is still in effect, but likely not for long. The Ninth Circuit judges wrote in their order that they believe the two restraining orders “rise and fall together,” and federal lawyers asked Judge Immergut on Monday evening to stay or remove the second.

So Monday’s ruling opened the door to some federal troops being stationed at an Immigration and Customs Enforcement facility in South Portland that has been the site of street protests since June.

“Some of these protests have been peaceful, but many have turned violent, and protesters have threatened federal law enforcement officers and the building,” wrote Judges Bridget Bade and Ryan Nelson, both nominees of Mr. Trump, who has portrayed Portland as a city in chaos.

The judges went on to cite a number of instances in which demonstrators in Portland attempted to set fires at the building, threw rocks and sticks, threatened officers with knives, shined lights in officers’ eyes and shot paintballs at officers.

“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 his decision to use National Guard soldiers, the judges wrote.

In a dissent, Judge Susan P. Graber, a nominee of President Bill Clinton, disputed her colleagues’ characterization of the situation in Portland.

She wrote that “Today’s decision is not merely absurd, it erodes core constitutional principles,” including state control over the National Guard and the First Amendment right to assemble and protest.

A memo in September from Defense Secretary Pete Hegseth said Guard troops could be stationed anywhere that protests “are occurring or likely to occur,” and could accompany federal agents who are enacting Mr. Trump’s immigration agenda in the field.

The memo came a day after a social-media post by Mr. Trump stating that he would send “all necessary troops” “to protect war-ravaged Portland from “domestic terrorists.”

Such incendiary descriptions do not reflect the reality in Portland, Judge Immergut had written, and have been at odds with law enforcement agencies’ own assessments of protest activity. But that has not stopped the president and other officials from misrepresenting conditions in Portland and in other Democratic-led cities where he wants to send federal forces.

Much of the litigation prompted by his deployment efforts in Portland and in the Chicago area has turned on whether the Trump administration’s accounts of violence at anti-ICE protests are accurate. The litigation has also debated whether there is a basis for invoking a federal law that allows the president to deploy the Guard if “there is a rebellion or danger of a rebellion,” or if the president is unable to execute U.S. law.

In a preliminary ruling, Judge Immergut, who was also nominated to the bench by Mr. Trump, found that while there had been some “violent behavior,” including the construction of a “makeshift guillotine to intimidate federal officials,” most of that occurred months ago, and none of it amounted to a rebellion.

But Judges Nelson and Bade drew a distinction between their ruling and a recent decision by the Seventh Circuit Court of Appeals that blocked a similar deployment in Chicago. In Portland, they noted, federal officials have said they were forced to close the ICE facility for three weeks in June because of demonstrations. In Broadview, Ill., a Chicago suburb, the ICE facility has remained open, despite protests.

“This ruling has vindicated us,” said Kristi Noem, the homeland security secretary, who visited Portland earlier this month, conservative influencers in tow, to try to underscore the administration’s narrative of a city spinning out of control.

Oregon’s governor, Tina Kotek, called the administration’s relentless push to deploy troops in her state’s largest city “a gross, un-American abuse of power.”

With National Guard deployments already underway in Washington, D.C., and, to a limited extent, Memphis, Tenn., the legal fight over a Portland deployment has significant ramifications. The administration’s promise of small deployments for short durations has not so far come to pass.

A new filing by the District of Columbia’s attorney general in a federal lawsuit challenging the presence of thousands of National Guard troops in the capital city cited recently obtained emails that suggested soldiers will be deployed in Washington at least until summer 2026. The suit claims that members of the National Guard, whom Mr. Trump began deploying in Washington in early August, have been involved in local law enforcement activities — and were being trained in handcuffing and other civilian policing technique — in violation of federal law.

Troop deployments in Illinois remained blocked by lower-court rulings, but that could change now that the administration has asked Supreme Court to intervene on an emergency basis. In their filings, administration lawyers argue that the courts do not have the power to review Mr. Trump’s decision to deploy the National Guard.

In a response on Monday, attorneys for Illinois argued that giving the executive such broad authority would be a misreading of precedent and that an “unnecessary deployment” of troops “will escalate tensions and undermine the ordinary law enforcement activities of state and local entities.”

“No protest activity in Illinois has rendered the president unable to execute federal law,” Illinois Attorney General Kwame Raoul and lawyers for the city of Chicago told the justices.

Monday’s Ninth Circuit ruling is unlikely to be the final word in the dispute over the Portland deployment. In addition to Oregon and Portland’s request for a broader hearing by Ninth Circuit judges, Judge Immergut has scheduled trial on the full lawsuit by the state and city for Oct. 29.

Oregon’s attorney general, Dan Rayfield, said in a statement that Monday’s ruling “would give the president unilateral power to put Oregon soldiers on our streets with almost no justification.”

“We are on a dangerous path in America,” he said.

Campbell Robertson contributed reporting.

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