9th Circuit Court Upholds Trump’s Deployment of National Guard in Portland

On Monday, the 9th Circuit Court of Appeals ruled that President Donald Trump may deploy National Guard troops to Portland, Oregon, over Democratic Gov. Tina Kotek’s objections.

The decision comes after weeks of tension between the White House and Oregon’s Democratic leadership. In September, the president announced plans to federalize the state’s National Guard, citing threats to federal property amid renewed protests against federal immigration enforcement in Portland. The state filed suit a day later. In its complaint, it argued that the president can only federalize the National Guard in “circumstances involving a foreign nation’s ‘invasion,’ an outright ‘rebellion,’ or where the President has been ‘unable with regular forces’ to execute Federal Law through ordinary means.” The state has said that the order violated the Posse Comitatus Act, which prohibits the federal government from using military forces to carry out domestic law enforcement duties unless explicitly authorized by Congress. 

Earlier this month, U.S. District Judge Karin Immergut, a Trump appointee, issued a temporary restraining order against the president’s deployment of Oregon National Guard members in Portland. “Immergut concluded that the deployment exceeded the president’s statutory authority and violated the state autonomy protected by the 10th Amendment,” Reason‘s Jacob Sullum reported at the time.

Less than a week later, a 9th Circuit panel convened to hear the case. During arguments, two of the judges seemed skeptical of Immergut’s reasoning and her temporary restraining order. In Monday’s 2–1 decision, the 9th Circuit panel overturned that order.

“After considering the record at this preliminary stage, we conclude that it is likely that the President lawfully exercised his statutory authority,” the majority wrote in its decision. “Rather than reviewing the President’s determination with great deference, the district court substituted its own determination of the relevant facts and circumstances.”

In her dissent, Judge Susan P. Graber warned that the decision “erodes core constitutional principles, including sovereign States’ control over their States’ militias and the people’s First Amendment rights.” State Attorney General Dan Rayfield criticized the decision, saying that the ruling “sets a dangerous precedent that would allow a president to put Oregon soldiers on our streets with almost no justification.”

Critics echoed these concerns, arguing that this interpretation gives future presidents dangerously broad leeway to bypass governors whenever unrest becomes politically inconvenient, blurring the line between federal defense and local policing. 

In its statement, the American Civil Liberties Union of Oregon also said the decision “sets a dangerous precedent” and condemned the administration’s justification for federalizing the Guard, noting that “Portland is peaceful” and that recent demonstrations have involved “inflatable frog and unicorn costumes, bike rides, and musical events”—hardly the stuff of an insurrection. The group argued that sending troops to police such activity is “an extremely dangerous and anti-democratic action.” Local officials have voiced similar doubts, warning that a federalized Guard presence could inflame tensions rather than restore order.

Oregon officials plan to seek a rehearing before the full 9th Circuit, The Guardian reports, and legal observers expect the issue could eventually reach the Supreme Court. It’s unclear whether the courts will ultimately side with Oregon or the White House. The outcome of the case could offer a significant check against executive power, or allocate even more authority to the president to “do anything [he] wants to do.”