A federal appeals court ruling Monday will allow the Trump administration to send National Guard troops into Oregon against the state's wishes, hitting pause on a lower court's order that had barred the deployment.
"After considering the record at this preliminary stage, we conclude that it is likely that the President lawfully exercised his statutory authority," the panel of 9th U.S. Circuit Court of Appeals judges wrote in a 2-1 ruling.
Justice Department attorneys had argued in a court filing that U.S. District Judge Karin J. Immergut's ruling temporarily halting the deployment “improperly impinges on the Commander in Chief’s supervision of military operations, countermands a military directive to officers in the field, and endangers federal personnel and property.”
Immergut, a Trump nominee, said in her order that it appeared Trump was acting in bad faith with exaggerated claims of violence in the city, including that it was “war ravaged” with “ICE Facilities under siege from attack by Antifa” and “crazy people” who “try to burn down buildings, including federal buildings” every night.
"The President’s determination was simply untethered to the facts," Immergut wrote.
The two appeals court judges — also Trump nominees — said Trump's position was entitled to more deference.
"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," said the opinion by Judges Ryan D. Nelson and Bridget S. Bade.
"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," they wrote.
The dissenting judge, Susan P. Graber, ripped her colleagues' ruling.
"Given Portland protesters’ well-known penchant for wearing chicken suits, inflatable frog costumes, or nothing at all when expressing their disagreement with the methods employed by ICE, observers may be tempted to view the majority’s ruling, which accepts the government’s characterization of Portland as a war zone, as merely absurd," Graber wrote.
The ruling, she wrote, "is not merely absurd. It erodes core constitutional principles including sovereign States’ control over their States’ militias and the people’s First Amendment rights to assemble and to object to the government’s policies and actions."
Oregon Attorney General Dan Rayfield, a Democrat, said in a statement he would seek to have the full 9th Circuit weigh in on the case in hopes it would overturn the three-judge panel.
“Today’s ruling, if allowed to stand, 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.
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White House spokeswoman Abigail Jackson lauded the ruling.
“As we have always maintained, President Trump is exercising his lawful authority to protect federal assets and personnel following violent riots that local leaders have refused to address. This ruling reaffirms that the lower court’s ruling was unlawful and incorrect,” Jackson said in a statement.
Immergut, the lower court judge, had found that while some protests turned violent in June, federal and state law enforcement agencies now seem to have the situation well in hand.
“On September 26, the eve of the President’s directive, law enforcement ‘observed approximately 8-15 people at any given time out front of ICE. Mostly sitting in lawn chairs and walking around. Energy was low, minimal activity,’” her order said.
At a hearing before the 9th Circuit this month, Eric McArthur, a lawyer for the Justice Department, argued the mobilization was necessary. He said that federal officials were repeatedly forced to call in backup to combat chaos outside the immigration processing facility and that protesters blocked cars, spit on authorities and in one instance lit a fire outside the facility.
"These are violent people," McArthur told the panel.
The Trump-appointed judges indicated during the hearing that they believed the state and the lower court judge were not showing enough deference to the president's decision-making.
“It just seems a little counterintuitive to me that the City of Portland can come in and say no, you need to do it differently,” Nelson said then.
The 9th Circuit blocked a similar restraining order this year involving National Guard troops in Los Angeles, finding that the president’s judgment about whether troops are needed should get “a great level of deference.”
Immergut referred to the California decision in her ruling but added that “'a great level of deference' is not equivalent to ignoring the facts on the ground."
The appeals court ruling gives the green light only to Oregon National Guard troops' being deployed. Immergut had issued a separate restraining order barring National Guard troops from other states from being sent into Portland, which the Trump administration has yet to appeal.
The majority decision Monday said that order would meet the same fate because Immergut used the same legal reasoning. Hours later, the Trump administration cited the appeals court ruling when it asked Immergut to retract the order.
A federal judge in Chicago this month issued a temporary restraining order barring National Guard troops from being deployed there. The 7th U.S. Circuit Court of Appeals has allowed that order to temporarily remain in effect while the administration's appeal proceeds.
The administration appealed that ruling Friday to the Supreme Court.
