A divided U.S. appeals court ruled on Monday that Donald Trump can send National Guard troops into Portland, Oregon, despite objections by the leaders of the city and state, giving the Republican president an important legal victory as he dispatches military forces to a growing number of Democratic-led locales.
A three-judge panel of the 9th U.S. Circuit Court of Appeals granted the Justice Department's request to put on hold a judge's order that had blocked the deployment while a legal challenge to Trump's action plays out.
The court said that sending in the National Guard was an appropriate response to protesters, who had damaged a federal building and threatened U.S. Immigration and Customs Enforcement officers. The opinion was written by Circuit Judge Bridget Bade, who was appointed by Trump in his first term.
Bade was joined by Circuit Judge Ryan Nelson, also a Trump appointee, who wrote a concurring opinion saying that courts have no ability to even review the president's decision to send troops.
Circuit Judge Susan Graber, an appointee of Democratic President Bill Clinton, dissented. She said that allowing troops to be called in response to "merely inconvenient" protests was "not merely absurd" but dangerous, and she said the full 9th Circuit should overturn the ruling before Trump has a chance to send troops.
White House spokeswoman Abigail Jackson welcomed the ruling, saying Trump had exercised his lawful authority to protect federal assets and personnel from protesters.
Portland's city attorney did not immediately respond to a request for comment.
On October 4, Portland-based U.S. District Judge Karin Immergut, who Trump appointed during his first term as president, ruled that Trump likely acted unlawfully when he ordered troops to Portland. She had blocked Trump from sending any National Guard troops to Portland at least until the end of October, and has scheduled a non-jury trial set to begin on October 29 to determine whether to impose a longer-term block.
In an extraordinary use of the U.S. armed forces for domestic purposes, Trump has sent National Guard troops into Los Angeles, Washington, D.C., and Memphis, and announced plans for deployments to Portland and Chicago.
Democratic-led states and cities have filed lawsuits seeking to halt the deployments, and courts have not yet reached a final decision on the legality of Trump's decisions to send the National Guard to U.S. cities.
Trump has asked the U.S. Supreme Court to weigh his authority to send troops to Democratic-led cities, after another U.S. appeals court ruled against his decision to send troops to Chicago.
City and state officials sued the administration in a bid to stop the Portland deployment, arguing that Trump's action violates several federal laws that govern the use of military forces as well as the state's rights under the U.S. Constitution's 10th Amendment.
The lawsuit accused Trump of exaggerating the severity of protests against his immigration policies to justify illegally seizing control of state National Guard units.
Trump on September 27 ordered 200 National Guard troops to Portland, continuing his administration's unprecedented use of military personnel in U.S. cities to suppress protests and bolster domestic immigration enforcement. Trump called the city "War ravaged" and said, "I am also authorizing Full Force, if necessary."
Police records provided by the state showed that protests in Portland were "small and sedate," resulting in only 25 arrests in mid-June and no arrests in the 3-1/2 months since June 19.
A federal law called the Posse Comitatus Act generally restricts the use of the U.S. military for domestic law enforcement purposes. In ordering troops to California, Oregon and Illinois, Trump has relied on a law - Section 12406 of Title 10 of the U.S. Code - that allows a president to deploy state National Guard to repel an invasion, suppress a rebellion or allow the president to execute the law.
The National Guard serves as state-based militia forces that answer to state governors except when called into federal service by the president.
During arguments in the case on October 9, the two Trump-appointed judges suggested that Immergut had focused too closely on protests in the city in September without fully considering more serious protests two months before the troop deployment. Circuit Judge Ryan Nelson said that courts should not engage in a "day by day" review of whether troops were needed at any given time.
Immergut issued decisions against the administration on October 4 and October 5, first ruling that Trump could not take over Oregon's National Guard and then ruling that he could not circumvent that decision by calling in National Guard troops from other states.
The judge said there was no evidence that recent protests in Portland rose to the level of a rebellion or seriously interfered with law enforcement, and she said Trump's description of the city as war-ravaged was "simply untethered to the facts."
Immergut is one of three district court judges who have ruled against Trump's use of the National Guard, and no district court judge has yet ruled for Trump in the National Guard cases.
Appeals courts have split over the issue so far, with the 9th Circuit previously backing Trump's use of troops in California and the 7th Circuit ruling that troops should stay out of Chicago for now.
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