SF Appeals Court Appears Reluctant to Block Trump’s National Guard Deployment to Portland

A three-judge appeals panel in San Francisco heard oral arguments on Thursday on whether President Donald Trump had the authority to federalize 200 Oregon National Guard troops and appeared reluctant to second-guess the president’s decision.

The hearing comes as multiple court cases play out in numerous states over Trump’s move to send in troops, and as the president escalates his threats and rhetoric against Democratic led cities. This week, Trump called those cities “war zones” and said he may consider using the Insurrection Act, which would allow military troops to be used for civilian law enforcement.

In the case being heard Thursday, the judges acknowledged the narrow nature of the issue before them: whether to halt a lower court’s order declaring the federalization of the Oregon Guard members illegal.

Not before the 9th U.S. Circuit Court of Appeals was the question of whether additional troops from California could be sent to Oregon, or if any of the troops could be deployed to Portland to protect an immigration building that’s been the site of ongoing protests.

That’s because Oregon U.S. District Judge Karin J. Immergut last weekend issued two separate temporary restraining orders: one halting Trump’s federalization of the 200 Oregon troops, and another halting both the federalization of California Guard members and the deployment of troops from both states.

California joined Oregon’s lawsuit after Trump ordered its state’s National Guard members to report to Portland last weekend. Gov. Gavin Newsom previously sued over Trump’s deployment of thousands of California National Guard troops and U.S. Marines to Los Angeles earlier this year — also in response to immigration protests.

The appeals court judges — two Trump appointees, one appointed by former President Bill Clinton — said they were only ruling on whether Trump had the authority to federalize the Oregon troops.

The Trump administration is relying on a section of federal code that allows the president to seize control of National Guard troops if there’s a threat of an invasion by a foreign country, a rebellion against the government or the president is unable with the regular forces to execute the laws of the United States.

“The president gets to direct his resources as he deems fit,” said Judge Ryan D. Nelson, who was nominated by Trump in 2018. “And 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.”

Representing the federal government, Deputy Assistant Attorney General Eric McArthur said the ongoing protests outside an ICE facility in Portland meet the law’s standards because, dating back to June, they had at times resulted in violence and led to the facility’s closure for more than three weeks earlier this summer.

“For months, the ICE facility in Portland and the federal law enforcement officers who worked there have faced a steady stream of violence, threats of violence and harassment from violent agitators bent on impeding federal immigration enforcement,” he said, adding later that “no dictionary definition of the term rebellion requires that it be aimed at overthrowing [the] entire government.”

Assistant Attorney General Stacy Chaffin, representing Oregon and Portland, argued that local police and existing federal law enforcement were equipped to handle protests that federal officials often characterized as “low-energy” in their own internal reports.

When crimes occurred, she noted, arrests were made.

“That’s what’s supposed to happen,” she said. “That’s how this process is supposed to work. It’s not that there is a protest, and then you just send in the military. This is protected speech. And for the most part, it is calm and sedate.”

This case, like the others filed in California and Illinois, hinges on how much deference the president should be given in deciding to seize control of National Guard troops, who state governors normally control.

Much of Thursday’s debate focused on the timing of Trump’s order in September — months after some of the largest demonstrations occurred. Chaffin argued that the June 7 memo Trump relied on in part to justify the September mobilization in Oregon was “stale” and mostly related to protests in Los Angeles.

McArthur said the court should look at the totality of the circumstances, arguing that delaying the use of the Guard “effectively penalizes the president for using the National Guard as a last resort rather than a first resort.”

Nelson noted that the federal government has not yet appealed the second temporary restraining order barring Trump from deploying troops.

He said the issue of how those troops are used once they are deployed could be the subject of a future hearing — and acknowledged the broader issues at play when military troops are dispatched to American cities. A separate federal law limits the use of military troops against U.S. civilians.

“I want to be clear. I’m very sensitive to the slippery slope argument that’s being made here and the slippery slope argument that’s been made in L.A. and around the country. I mean, this is something that clearly the founders were concerned about,” Nelson said.

If National Guard troops are allowed in Portland, he went on, “it may well be that the forces are used in an improper way. But we don’t have any evidence of that right now. All we have is a document that says we have a federal facility under attack.”

That he said, “doesn’t strike me as a glaring overuse on its face.”

The appeals panel is likely to rule before the lower court’s order expires on Oct. 18. McArthur said the Trump administration did not appeal both orders because they assumed that if the appeals court rules that the first order is illegal, the second, related to California and the deployment of the troops, will be invalidated as well.