President Donald Trump scored a major legal victory Monday when the 9th Circuit Court of Appeals ruled he can deploy National Guard troops to Portland.
The ruling overturned a lower court order that had blocked the deployment.
“After considering the record at this preliminary stage, we conclude that it is likely that the President lawfully exercised his statutory authority,” the two-judge majority wrote in the 2-1 decision.
The ruling removes one of two legal barriers that has prevented the Trump administration from sending federalized National Guard troops to secure Portland. A second restraining order issued by U.S. District Judge Karin Immergut remains in place, though the Trump administration immediately asked the judge to dissolve it following Monday’s appellate court decision.
The majority opinion was authored by judges Ryan Nelson and Bridget Bade, both appointed by Trump during his first term.
Trump ordered the federalization of 200 Oregon National Guard members on September 28 after describing Portland on social media as “War ravaged” and “under siege from attack by Antifa, and other domestic terrorists.” The order came after months of protests outside an Immigration and Customs Enforcement facility in Portland’s South Waterfront neighborhood, which has turned violent multiple times.
“As we have always maintained, President Trump is exercising his lawful authority to protect federal assets and personnel following violent riots that local leaders have refused to address. This ruling reaffirms that the lower court’s ruling was unlawful and incorrect,” White House spokeswoman Abigail Jackson said in a statement.
Justice Department attorney Eric McArthur argued during court hearings that federal officers have been repeatedly attacked by a mob of protesters.
“These are violent people, and if at any point we let down our guard, there is a serious risk of ongoing violence,” McArthur told the court.
Federal prosecutors said in court documents that protesters have “assaulted federal law enforcement officers with rocks, bricks, pepper spray and incendiary devices, causing injury.” Court records show at least 20 people have been charged with federal crimes related to the ICE protests, with about five facing felony charges.
Cammila Wamsley, director of Portland’s ICE office, said last week the facility has endured more than 100 straight nights of violence with Portland police largely absent under direction from the mayor and City Council.
“It’s frustrating for us to watch people be attacked on the street and know that we don’t have the authority to be able to really step in unless there’s some nexus to federal law,” Wamsley said.
Judge Immergut initially blocked Trump’s deployment on October 4, ruling that the president’s characterization of Portland as “war ravaged” was “simply untethered to the facts.” After Trump attempted to send 200 California National Guard troops instead, Immergut issued a second order blocking the deployment of any federalized National Guard from any state to Oregon.
Oregon Attorney General Dan Rayfield, a Democrat, said he would seek to have the full 9th Circuit review the three-judge panel’s 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. We are on a dangerous path in America,” Rayfield said.
Judge Susan Graber, appointed by President Bill Clinton, dissented from the majority opinion. Graber wrote there is no evidence in the court record that ICE was unable to protect its facility or execute immigration laws.
“Consequently, no legal or factual justification supported the order to federalize and deploy the Oregon National Guard,” Graber wrote.
Oregon Governor Tina Kotek told NPR on October 6 that Trump’s portrayal of Portland was “ludicrous.”
“We had thousands of people on the streets of Portland for the Portland Marathon. The city is beautiful. The city is thriving,” Kotek said.
The Portland ICE facility closed for over three weeks in June and July during earlier riots.
Federal court records show the mob has repeatedly attacked and thrown rocks and bricks at officers, shattered windows with a stop sign used as a battering ram, and deployed pepper spray against authorities. One protester allegedly shined a “high-powered handheld laser” in an officers’ eyes.