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The 9th U.S. Circuit Court of Appeals on Monday ruled that President Donald Trump can deploy Oregon National Guard troops into the city of Portland, delivering a significant victory to the Trump administration as it continues its effort to send federal forces into Democratic-led cities despite a string of recent setbacks in other district and appeals courts.
Judges on the three-member panel ruled 2-1 to authorize Trump’s deployment. Judge Ryan Nelson and Judge Bridget Bade, both appointed by Trump, sided with the administration in the majority ruling, with the lone Clinton-appointed judge, Susan Graber, dissented.
“After considering the record at this preliminary stage, we conclude that it is likely that the President lawfully exercised his statutory authority under 10 U.S.C. § 12406(3), which authorizes the federalization of the National Guard when ‘the President is unable with the regular forces to execute the laws of the United States,’” the majority said.
The move has become a political flashpoint as protesters opposing his key policies have clashed with law enforcement. Oregon officials and civil liberties groups say the administration is exaggerating the threat, while Trump allies insist the Guard is needed to restore order.
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After a federal judge in Oregon temporarily blocked Trump’s attempt to deploy troops to Portland earlier this month, the 9th U.S. Circuit Court of Appeals agreed to hear the Trump administration’s appeal.
The lower court judge had described Trump’s action in her emergency order as “untethered to reality,” and one that she said risks “blurring the line between civil and military federal power — to the detriment of this nation.”
The appeals court quickly stayed the lower court’s order pending review.
The ruling comes as Trump has sought to deploy hundreds of National Guard troops to Democratic-led cities despite stated opposition from local and state leaders. Senior administration officials have argued that the deployment is a necessary step to crack down on what they say is an uptick in violent crime and protect against threats from protesters, including anti-ICE demonstrations in many downtown areas.
Democrats have countered that Trump’s descriptions are hyperbolic and inaccurate, and are merely a legal pretext for Trump to try to “federalize” Democratic-led cities. They’ve used news conferences to highlight declines in violent crime, and have argued in court that the effort to deploy federal troops exceeds Trump’s authority as commander-in-chief.
Until the matter is appealed to the Supreme Court, the burden remains on the lower courts to navigate the high-profile, politically thorny flurry of cases.
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Another federal appeals court has also weighed in on the dispute. On Saturday, the 7th U.S. Circuit Court of Appeals in Chicago partially lifted a lower court order blocking Trump’s federal deployment of National Guard troops, though the decision stopped short of authorizing their use and instead allowed them to remain at a U.S. Army Reserve base outside the city.
In Oregon, the 9th U.S. Circuit Court of Appeals held about 90 minutes of arguments on the administration’s appeal. Trump administration officials argued the troops’ presence was necessary to quell mounting unrest and protect against future risk of violence.
Judges on the three-member panel appeared largely sympathetic to the Trump administration, especially the two Trump appointees, who noted presidents do enjoy broad latitude to deploy the National Guard.
“It may well be that the forces are used in an improper way, but we don’t have evidence of that,” Judge Ryan Nelson, a Trump appointee, said during oral arguments.
Trump’s decision to call up the military “doesn’t strike me as a glaring overuse on its face,” he said.
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The panel’s majority otherwise did little to disguise their skepticism of arguments presented by Oregon Assistant Attorney General Stacy Chaffin — including that Trump’s assessment of violence in the city did not justify federalizing the National Guard.
Chaffin argued that the protests in Portland are a far cry from a definition of a “rebellion” — one of two conditions Trump needs to meet the legal pretext for National Guard deployment.
Rebellions “are unusual and extreme emergencies,” Chaffin said. She noted that the bulk of complaints by local agents are focused on them being short-staffed. Administrative or personnel concerns, she said, “are not a reason to bring the military into the streets of Portland or any other U.S. city.”
Still, the court appeared poised to side with the Trump administration.
“I’m not sure even President Lincoln would have been able to authorize the use of force right now” if his actions were to be scrutinized under the “much more stringent reviewability standard” implied by Oregon here, Nelson noted shortly before court adjourned.
The 9th Circuit is one of several appeals courts that has weighed Trump’s plan to send National Guard troops to Democratic-led cities in recent weeks.
On Friday, the Trump administration asked the Supreme Court to intervene and block a 7th Circuit ruling that blocked it, for now, from sending National Guard troops into the city of Chicago.
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