Left: Donald Trump speaks at the annual Road to Majority conference in Washington, DC, in June 2024 (Allison Bailey/NurPhoto via AP). Right: U.S. District Judge Karin Immergut (Stanford Law School).
The Trump administration has urgently called on a federal appeals court to overturn a judge’s decision that blocks the deployment of the National Guard to Portland, Oregon. Officials argue that the ruling contains significant errors and fails to give the president the respect and authority he is due.
In an emergency appeal filed with the 9th Circuit U.S. Court of Appeals, the Department of Justice sought either a stay pending appeal or a temporary administrative stay by November 21. They defended President Donald Trump’s September decision to federalize military forces, citing the need to protect an ICE facility and federal personnel amid a perceived threat of “rebellion,” despite the most intense violence having occurred several months prior.
U.S. District Judge Karin Immergut, appointed by Trump, ruled ten days earlier that although there were violent protests in June, they had largely subsided due to the efforts of civil law enforcement. Since then, protests have been mostly peaceful, with only sporadic and minor incidents primarily involving protesters and counter-protesters.
The timing of Trump’s decision to mobilize the National Guard, long after the peak of the unrest, became a focal point during oral arguments in early October at the 9th Circuit.
Initially, a three-judge panel sided with Trump. However, in late October, the 9th Circuit vacated that decision, opting for an en banc review, meaning the full appellate bench would reconsider the case.
This development followed revelations from the DOJ acknowledging that several previous statements regarding federal deployments to Portland were incorrect. The department expressed regret for multiple errors presented in prior court documents.
Immergut, after a brief trial, preliminarily revealed at the start of November that even handing Trump a “great level of deference” on the issue did not override “credible evidence” that there likely was “no lawful basis” for federalizing Oregon’s National Guard and or calling in troops from other states.
Days later, Immergut ruled that the federal government violated the 10th Amendment and 10 U.S.C. § 12406, the statute that authorizes the president to call up the guard when he is “unable with the regular forces to execute the laws of the United States.”
In its latest filing before the 9th Circuit, the Trump administration asserted that Immergut’s decision to permanently block “federalization and deployment of the Oregon National Guard or Guardsmen from any other state to Portland” was erroneous in a number of ways.
The DOJ said Immergut “wholly failed” to give Trump the “deference required,” “wrongly downplayed the dangerous conditions at the ICE facility,” and treated the June violence as “irrelevant” to Trump’s “plainly lawful” decision “just a few months later.”
“And while the court attempted to paint a picture of sharp decline in violent activity since then, the record shows that violence and threats of violence recurred more-or-less continuously,” the government said. “More broadly, the court emphasized that certain incidents did not result in significant violence. But this ignores the substantial and continuous threat of violence and resulting inhibition of federal operations. The President certainly had ‘colorable’ grounds to determine that regular forces were ‘unable’ to sufficiency protect federal personnel and property and that the conditions rose at least to the level of a ‘danger’ of rebellion.”
Accusing Immergut of making “several critical errors” by siding against Trump, the DOJ threw the Portland Police Bureau under the bus as “not a reliable partner in protecting federal officials and property[.]”
That, the DOJ said, “only further underscores that [Trump] had a colorable basis for his determination.”
“Congress empowered the President to ‘call into Federal service’ members of the National Guard when ‘there is a rebellion or danger of a rebellion against the authority of the Government of the United States’ or ‘the President is unable with the regular forces to execute the laws of the United States,’” the filing concluded. “The President judged that those conditions were satisfied in Portland, and the district court had no basis to override that judgment.”
