Trump can order National Guard troops into Oregon, 9th Circuit rules

The 9th Circuit Court of Appeals handed the president command of the Oregon National Guard on Monday, further embroiling him in an ongoing multi-party legal battle over military deployments in US cities.

The three-member appeals panel — including two members appointed by Trump during his first term — found that the law “does not limit the facts and circumstances that the president considers” when deciding whether to send troops domestically.

The justices found that when ordering appointments, “the President has the authority to identify and weigh the relevant facts.”

The ruling was in stark contrast to a lower court judge’s finding earlier this month.

U.S. District Judge Karen Amergut of Portland previously called the president’s justification for federalizing Oregon troops “simply inconsistent with the facts” in her Oct. 4 temporary restraining order.

The appellate judges said they were guided by precedent in the 9th Circuit this summer, when California tried and failed to regain control of federal troops in and around Los Angeles.

Another trial in the California case is scheduled before the appeals court this week and the court’s previous decision could be reversed. Meanwhile, a nearly identical settlement in Illinois is under review by the Supreme Court.

For now, exactly which troops can be stationed in Portland remains a bitter contest in U.S. District Court, where the Amargut administration is trying to prevent California from flooding Portland with guards.

The decision of the Supreme Court on this issue is expected to be made later this fall.

The justices who heard the Oregon case cited a dual legal theory in their opinions. Two members of the bench who supported Trump’s authority over the troops argued that the law was straightforward.

“The president’s discretion in this matter is absolute,” Judge Ryan D. Nelson, a Trump appointee, wrote in a concurrence that the court overstepped its bounds in taking the case.

“Reasonable minds would disagree about the ownership of the President’s National Guard deployment in Portland,” Nelson wrote. “But the federal courts are not the remedy for this disagreement—the political process is (at least under the Supreme Court’s current precedent).”

Susan P. Graeber, a Clinton appointee, said the appeals court had stopped short of parody.

“Noting that Portland protesters are notoriously known for wearing chicken costumes, frog costumes, or anything else when expressing disagreement with the methods employed by ICE, observers may see a majority decision, which acknowledges the government’s characterization of Portland as a war zone.”

But she wrote, the risk of sending armed troops to American cities based on “propaganda” is very high.

“I urge my colleagues on this court to act quickly to vacate the majority’s order before it is replaced by illegal troops under false pretenses,” Graber wrote. “Above all, I ask those who look into this case to keep faith in our judicial system for a little while longer.”