A federal appeals court judge on Thursday cast doubt on Oregon’s challenge to President Donald Trump’s use of the National Guard in Portland, saying there was no evidence the deployment was unlawful despite state concerns about presidential overreach.
Judge Ryan D. Nelson of the U.S. Court of Appeals for the 9th Circuit said he was not “trying to diminish” worries that federalizing the Oregon National Guard could set a dangerous precedent. But he added that the record before the court did not show evidence of abuse.
“It may well be that the forces are used in an improper way, but we don’t have any evidence of that right now,” said Nelson, a Trump appointee. “All we have is a document that says, ‘We have a federal facility under attack or that violence has forced it to close down, and we want to protect it.’ That doesn’t strike me as a glaring overuse on its face.”
The panel, comprised of two Trump appointees and one appointee of former President Bill Clinton, heard oral arguments in the Trump administration’s appeal of a lower-court order blocking the Guard’s deployment to protect a federal Immigration and Customs Enforcement facility that had been shuttered amid months of protests and sporadic violence.
Justice Department attorney Eric McArthur told the panel that the president has broad constitutional authority to safeguard federal property when local authorities fail to maintain order. He acknowledged the government did not dispute the factual findings in the district court’s injunction but argued those facts did not justify restraining the president’s national defense powers.
Oregon Assistant Attorney General Stacy Chaffin countered that the Portland demonstrations did not amount to a “rebellion” or “insurrection” that would justify military intervention, insisting the federalization order exceeded the scope of presidential authority.
Judge Susan P. Graber, a Clinton appointee, pressed McArthur early in the hearing to define what constitutes a “rebellion.” McArthur said it referred to an “organized resistance by force and arms” against the government, while Chaffin said such events must be “unusual and extreme emergencies” that threaten “the existence of the Union.”
Chaffin’s arguments drew sharp questioning from both Trump-appointed judges on the panel.
Nelson called her description of the protests as “largely sedate and generally peaceful” “clearly erroneous,” noting that demonstrations had repeatedly disrupted federal operations. Judge Bridget Bade, an appointee of Trump, added that the ICE facility had been closed for more than three weeks during the height of the unrest — a fact she said was “relevant” to the president’s duty to ensure federal law enforcement.
Chaffin replied that those conditions no longer existed and urged the court not to treat events from three months earlier as justification for a standing military order. “There is an expectation in the law that the circumstances are going to be evaluated as they happen,” she said.
The three-judge panel did not indicate when it would rule, though they indicated they would attempt a decision as soon as possible.
Even if the Trump administration prevails, a separate district court order remains in place blocking any National Guard deployment in Portland until at least Oct. 19. That order pertains to a secondary lawsuit joined by the state of California after Trump reassigned federalized guard troops in Los Angeles to Portland.
TRUMP’S NATIONAL GUARD PUSH GAINS STEAM THANKS TO STRONG LEGAL FOOTING
A simultaneous hearing related to Trump’s deployment of National Guard troops in Chicago happened in the Illinois federal court on Thursday. The state has asked for a temporary block on the use of troops to protect federal agents and facilities in the state, and the judge previously declined to immediately enjoin the use of troops when a lawsuit was filed earlier this week.
U.S. District Judge April Perry, an appointee of former President Joe Biden, did not indicate when she would make a decision but said she would be back at the bench at 4:30 p.m. local time.
