Donald Trump has gained control over the Oregon National Guard as he prepares to dispatch troops to Portland.
On Monday, the Ninth US Circuit Court of Appeals temporarily halted a previous ruling that blocked Trump from taking command of 200 Oregon National Guard members, who ordinarily report to the state’s governor.
In a 2-1 decision, the panel of judges concluded that the president is likely to succeed in his assertion that he has the power to federalize the troops, arguing that their involvement is necessary to enforce the law effectively.
The judges referenced the aggressive actions of protesters outside a Portland Immigration and Customs Enforcement facility as grounds for invoking an early 20th-century statute that permits the president to assume control of the Guard.
In their unsigned order, the judges highlighted incidents where protesters ‘attempted to burn the building down, secured chains on the doors, tried to breach the front entrance, and shattered the front glass door.’
The order also detailed how protesters hurled ‘rocks, sticks, a mortar, and M80 fireworks at federal officers, attacked them, aimed lasers at their eyes, and exposed their personal information,’ according to the judges.
Their decision now puts on hold a lower-court ruling that prohibited Trump from calling up the troops so he could send them to Portland.
However, US District Judge Karin Immergut’s second order prohibiting Trump from sending any National Guard members to Oregon at all remains in effect, meaning that no troops may immediately be deployed.
President Donald Trump has secured command of the Oregon National Guard, as he pushes to send troops to Portland
But the Trump administration has argued that because the legal reasoning underpinning both temporary restraining orders was the same, the second one was also invalid.
Lawyers for the government noted that the majority opinion on Monday said the two TROs ‘rise or fall together,’ as they asked Immergut to immediately dissolve her second order.
They argued that it is not the role of the courts to second-guess the president´s determination about when to deploy troops.
‘The Ninth Circuit´s decision staying the first TRO is a significant change in law that plainly warrants dissolution of this Court´s second TRO,’ the administration’s lawyers wrote.
Still, the White House celebrated the ruling, with Trump spokeswoman Abigail Jackson saying the president ‘is exercising his lawful authority to protect federal assets and personnel following violent riots that local leaders have refused to address,’ according to the Wall Street Journal.
The administration has said the troops are needed to protect federal property from protesters, and that having to send extra Department of Homeland Security agents to help guard the property meant they were not enforcing immigration laws elsewhere.
Oregon officials, meanwhile, have argued that Portland police have handled the protests and crowd control outside of the ICE facility appropriately, and have said that demonstrators who break the law are regularly arrested.
Clashes between federal agents and protesters outside of the facility have become violent
The small nightly protests, limited to a single block, have been ongoing since June.
At times, larger crowds including counter-protesters and live streamers, have shown up and federal agents have had to deploy tear gas to disperse the crowds.
But in her decision, Immergut said the president’s claims about Portland being war-torn are ‘simply untethered to the facts.’
Judge Susan Graber, an appointee of former President Bill Clinton, concurred as she issued her dissenting opinion on Monday.
‘Given Portland protesters’ well-known penchant for wearing chicken suits, inflatable frog costumes or nothing at all when expressing their disagreement with the methods employed by ICE, observers may be tempted to view the majority’s ruling, which accepts the government’s characterization of Portland as a war zone, as merely absurd,’ she wrote.
Graber then urged her colleagues on the 9th Circuit to ‘to vacate the majority´s order before the illegal deployment of troops under false pretenses can occur.’
‘In the two weeks leading up to the President´s September 27 social media post, there had not been a single incident of protesters´ disrupting the execution of the laws,’ Graber wrote. ‘It is hard to understand how a tiny protest causing no disruptions could possibly satisfy the standard that the President is unable to execute the laws.’
In her dissenting opinion on Monday, Ninth Circuit Judge Susan Graber, an appointee of former President Bill Clinton, pointed to the protesters’ use of costumes to refute the Trump administration’s claims that Portland has become a war zone
State and local officials have argued against the Trump administration taking control of the National Guard
Oregon Attorney General Dan Rayfield, a Democrat, said he will now ask for a broader panel of the appeals to reconsider the decision.
‘Today´s ruling, if allowed to stand, would give the president unilateral power to put Oregon soldiers on our streets with almost no justification,’ Rayfield said. ‘We are on a dangerous path in America.’
Yet Trump’s efforts to deploy National Guard troops in Democratic-led cities have been mired in legal challenges.
In California, a judge ruled that his deployment of thousands of National Guard troops in Los Angeles violated the Posse Comitatus Act, a longstanding law that generally prohibits the use of the military for civilian policing.
Still, the Trump administration is seeking to move full-steam ahead with its plans, asking the US Supreme Court on Friday to allow the deployment of National Guard troops to the Chicago area.
