The 9th Circuit Court of Appeals on Monday gave the president command of Oregon National Guard troops, further raising the stakes in the ongoing multi-party legal battle over the deployment of troops in cities across the United States.
The three-judge appellate 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 may consider” when deciding whether to send troops domestically.
The judges found that in ordering the deployment of troops, “the President has the authority to discover and weigh the relevant facts.”
The decision stands in stark contrast to a lower court judge's ruling earlier this month.
U.S. District Judge Karin Immergut of Portland previously called the Oregon troop president's acquittal “simply unrelated to the facts” in her Oct. 4 temporary restraining order.
The appellate judges said they were guided by the precedent set this summer in the 9th Circuit when California tried and failed to regain control of federal troopers in and around Los Angeles.
Another appeals court hearing in the California case is scheduled this week, and the court's previous decision could be overturned. At the same time, a nearly identical rollout in Illinois is pending before the Supreme Court.
For now, the question of exactly what troops can be stationed in Portland remains a bitter dispute in U.S. District Court, where Immergut has blocked the administration from flooding Portland with Guardsmen from California.
The issue will likely be decided by the Supreme Court later this fall.
The judges in the Oregon case presented conflicting legal theories in their opinions. The two panel members who backed Trump's authority over the troops argued the law was simple.
“The President’s judgment in this area is absolute,” Judge Ryan D. Nelson, a Trump appointee, wrote in a concurrence, arguing that the court had overstepped its authority in hearing the case altogether.
“Reasonable minds would disagree with the rationale for stationing the President's National Guard in Portland,” Nelson wrote. “But the federal courts are not a panacea for resolving this division—the political process is the panacea (at least according to current Supreme Court precedent).”
Susan P. Graber, a Clinton appointee, said the appeals court had become a travesty.
“Given the well-known tendency of Portland protesters to wear chicken costumes, inflatable frog suits, or say nothing at all when expressing their opposition to ICE practices, observers may be tempted to view the majority's decision to accept the characterization of Portland as a war zone as simply absurd,” she wrote in her strongly worded dissent.
But the stakes of sending armed soldiers into American cities based on little more than “propaganda” are much higher, she wrote.
“I urge my colleagues on this court to act quickly to overturn the majority’s decision before illegal troop deployments under false pretenses can occur,” Graber wrote. “First and foremost, I ask those watching this case unfold to keep faith in our judicial system just a little longer.”
