The 9th Circuit Court of Appeals on Monday transferred command of Oregon National Guard troops to the president, further raising the stakes in an ongoing multi-front legal battle over military deployments to cities across the United States.
The three-judge appeals panel, which included two members appointed by Trump during his first term, found that the law “does not limit the facts and circumstances that the president may consider in deciding whether to send troops home.”
The justices held that in ordering the deployment, “the President has the authority to ascertain and weigh the relevant facts.”
The ruling contrasts with a lower court judge’s ruling earlier this month.
U.S. District Judge Karin Immergut in Portland previously said in a temporary restraining order on October 4 that the president’s rationale for federalizing the military in Oregon was “completely divorced from the facts.”
The appeals judges said they were guided by precedent from the Ninth Circuit this summer, when California tried and failed to regain control of federal soldiers in and around Los Angeles.
Another lawsuit in the California case is scheduled to be heard this week in an appeals court, where the court’s previous ruling could be overturned. Meanwhile, the Supreme Court is reviewing a nearly identical deployment in Illinois.
Exactly which troops can be deployed in Portland remains hotly contested in U.S. District Court, where Immergut blocked the administration from sending Guard troops from California to Portland.
The issue will likely be decided by the Supreme Court later this fall.
The judges hearing the Oregon case outlined competing legal theories in their opinions. Two judges who upheld Trump’s authority over the military found the law simple.
“The President’s decision in this regard is absolute,” wrote Judge Ryan D. Nelson, a Trump appointee, who agreed that the court simply exceeded its boundaries in hearing the case.
“Reasonable people would disagree on the appropriateness of the President’s deployment of the National Guard to Portland,” Nelson wrote. “But federal courts are not the panacea for resolving this divide — the political process is (at least according to current Supreme Court precedent).”
Susan P. Graber, a Clinton appointee, said the appeals court has turned to imitation.
“Portland protesters are known to wear chick suits, inflatable frog costumes, or nothing at all when expressing their dissent with ICE’s methods,” she wrote in a pointed dissent. “Observers may view the majority’s ruling, which accepts the administration’s designation of Portland as a war zone, as absurd.”
But the risks of sending armed soldiers to U.S. cities based solely on “propaganda” are much higher, she wrote.
“I urge my colleagues on the court to act quickly and rescind the majority’s order to avoid a situation in which the military is unlawfully deployed under false pretenses,” Graeber wrote. “Most importantly, I ask those who are following the progress of this case to maintain faith in our justice system just a little longer.”
