The Trump administration is preparing to deploy the National Guard to Portland while waiting for three different federal courts to make decisions over the previous deployment of troops to three Democrat-run cities.
In the Democrat-run states to which President Donald Trump has deployed troops, state governments have filed lawsuits alleging that the federalization and deployment of the National Guard is unlawful. Trump has used the National Guard to protect federal officials and property amid unruly protests over federal immigration operations, which the administration claims have put federal officers in danger.
After a victory in a federal appeals court earlier this week, which allowed Trump to federalize and deploy members of the Oregon National Guard to Portland, the administration is still awaiting rulings from the Supreme Court, the full U.S. Court of Appeals for the Ninth Circuit, and a three-judge panel on the Ninth Circuit, in three separate cases over his use of the National Guard.
Troops prepare to deploy in Oregon, possible en banc review awaits
While National Guard troops have not yet been deployed into Portland, a federal appeals court cleared the way for the troops to begin guarding federal assets and personnel in the city earlier this week.
A three-judge panel on the U.S. Court of Appeals for the Ninth Circuit ruled 2-1 to allow the federalization and deployment of the National Guard, finding the president was likely within his lawful authority to federalize and deploy troops to protect federal officers and facilities. The majority of the panel found that the president, not a district court, was authorized to determine when the government could not execute laws without assistance from the National Guard.
U.S. District Court Judge Karin Immergut is scheduled to hold a hearing on Friday to decide whether one of her orders blocking the deployment of National Guardsmen to Portland should be lifted in light of the appeals court panel’s ruling. Immergut had issued two orders: one blocking the deployment of the Oregon National Guard, and another blocking the deployment of any National Guardsmen from any state. Immergut will weigh on Friday whether she can proceed with the latter order in light of the appeals court’s ruling.
It is unknown when exactly the National Guard will begin their deployment in Portland, but officials had previously said it could take roughly a week for troops to be prepared and sent into the city. Troops with the Oregon and California National Guard reportedly remain at training centers near Portland, where they are awaiting deployment amid the legal battle.
As the troops prepare to deploy to Portland, the full Ninth Circuit will consider whether to grant an en banc review of the three-judge panel’s ruling allowing the Trump administration to deploy and federalize the Oregon National Guard. This would require all judges on the Ninth Circuit, not just the three-judge panel that typically handles appeals, to weigh the National Guard issue.
The appeals court requested briefs from both sides due at the end of the day on Wednesday on whether the full appeals court should review the ruling.
The Trump administration argued the deployment is necessary in Portland due to unrest around federal operations in the city and that the panel’s decision should not be reviewed. In its brief, Oregon officials told the full Ninth Circuit that it should review and overturn the panel’s ruling, claiming it “affronts Oregon’s sovereignty and erodes the rule of law.”
Chicago deployment pending Supreme Court emergency ruling
Trump’s bid to deploy the National Guard to Chicago has faced the most resistance in federal courts, with the administration appealing to the Supreme Court’s emergency docket in its bid to have troops sent to the city.
Two federal courts denied Trump’s deployment of troops to Chicago, leading him to take the issue to the high court for the first time since he started using the National Guard to protect federal assets and personnel.
Solicitor General D. John Sauer implored the justices to lift the lower courts’ block on the deployment, detailing the unrest surrounding immigration operations in Chicago and the president’s ability to call the National Guard under federal statute.
“The injunction improperly impinges on the President’s authority and needlessly endangers federal personnel and property. The balance of harms weighs strongly in favor of interim relief pending appeal and, if necessary, certiorari, so that the National Guard may perform its protective function while any further litigation is ongoing,” the petition said.
Illinois officials claimed the Trump administration’s allegations that unrest has stood in the way of federal immigration operations were overblown, and that the administration had failed to meet the legal bar necessary to deploy troops.
“The Framers carefully apportioned responsibility over the ‘militia’—today, the National Guard—between the federal government and the States, granting the federal government the authority to call up the militia only for specific purposes and at specific times,” the brief from Illinois officials said.
“Although the district court concluded that those unusual circumstances were not present in Illinois, and so enjoined the federalization and deployment of the National Guard at the TRO stage, the Seventh Circuit’s decision partially staying that order—and permitting federalization—both safeguards the careful balance of power struck by the Constitution and affords the federal government appropriate solicitude while this fast-moving case proceeds in the lower courts,” their brief continued. “Applicants’ contrary arguments rest on mischaracterizations of the factual record or the lower courts’ views of the legal principles.”
The Supreme Court does not have a set timeline for when it issues rulings on emergency docket petitions, but with the case fully briefed, a ruling could come at any time.
Los Angeles deployment continues as Ninth Circuit weighs firm ruling
While troops have yet to be sent into Chicago or Portland, the National Guard has continued to have a presence in the Los Angeles area, protecting federal assets and personnel since June.
U.S. District Judge Charles Breyer initially blocked the deployment and federalization of the California National Guard with an injunction in June, finding the troops had been unlawfully ordered into federal service by the administration. The Trump administration quickly won an appeal of Breyer’s order when a three-judge panel on the Ninth Circuit appeals court allowed the Trump administration to send troops to Los Angeles.
The number of troops deployed has shrunk from a couple of thousand to a few hundred in the months since the initial deployment, but the lawsuit is still proceeding in federal court. The Ninth Circuit panel that has kept Breyer’s order paused since June held oral arguments in the case on Wednesday.
The Trump administration asked the appeals court to dissolve Breyer’s order, which is presently only paused, arguing that the president’s deployment order is unreviewable by a court, or at least warranted under federal law. The panel appeared skeptical of the DOJ’s arguments that the deployment is unreviewable, but still seemed more likely to side with Trump officials over California officials, who want Breyer’s order reinstated.
The wait for the Ninth Circuit panel’s ruling is less pressing for the administration, as the lower court’s order is not in effect for now, but a ruling could push the issue of National Guard deployments closer to a full review by the Supreme Court.
TRUMP ADMINISTRATION ARGUES NO TIME-LIMIT ON POWER TO DEPLOY NATIONAL GUARD
While Southern California has had a National Guard presence since June, officials in San Francisco had been anticipating that the Trump administration would send troops to the Bay Area in the coming days.
The administration’s threat of troops to defend federal assets in the city appears to have subsided, however. San Francisco Mayor Daniel Lurie said on Thursday that he spoke with Trump and confirmed troops would not be called in for now.
“In that conversation, the president told me clearly that he was calling off any plans for a federal deployment in San Francisco. Secretary of Homeland Security Kristi Noem reaffirmed that direction in our conversation this morning,” Lurie said in a statement Thursday. “My team will continue to monitor the situation closely, and our city remains prepared for any scenario.”
