PORTLAND, Ore. (AP) — An appeals court Monday stayed a lower court ruling that blocked President Donald Trump from taking command of 200 Oregon National Guard troops. However, Trump is still prohibited from actually deploying these troops, at least for now.
U.S. District Judge Karin Immergut early this month issued two temporary restraining orders — one banning Trump from calling up the troops so he could send them to Portland, and another banning him from sending National Guard members to Oregon at all, after the president tried to evade the first order by deploying California troops instead.
The Justice Department appealed the first order, and on Monday a panel of the 9th US Circuit Court of Appeals sided with the government in a 2-1 ruling. The majority said the president was likely to succeed in his claim that he had the authority to federalize the troops based on the determination that he could not enforce the laws without them.
However, Immergut's second order remains in effect and troops may not be deployed immediately.
The administration has said that because the legal reasoning underlying both temporary restraining orders was the same, it will now ask Immergut to dissolve its second injunction and allow Trump to send troops to Portland. The Justice Department argued that it is not the role of the courts to question the president's determination on when to deploy troops.
Oregon Attorney General Dan Rayfield, a Democrat, said he would ask for a broader appeals panel to reconsider the decision.
“Today's ruling, if upheld, would give the president unilateral power to put Oregon soldiers on the streets without justification,” Rayfield said. “We are on a dangerous path in America.”
The Justice Department did not immediately return an email seeking comment.
Trump's efforts to deploy National Guard troops in Democratic-run cities have been mired in legal challenges. A California judge ruled that his deployment of thousands of National Guard troops in Los Angeles violated the Posse Comitatus Act, a longstanding law that generally prohibits the use of the military for civilian policing, and the administration on Friday asked the U.S. Supreme Court to allow the deployment of National Guard troops in the Chicago area.
Since June, mostly small nighttime protests, limited to a single block, have taken place outside the U.S. Immigration and Customs Enforcement building in Portland. Larger crowds have occasionally shown up, including counterprotesters and livestreamers, and federal agents have used tear gas to disperse demonstrators.
The administration has said the troops are needed to protect federal property from protesters, and that sending additional Department of Homeland Security agents to help guard the property meant they were not enforcing immigration laws elsewhere.
Immergut previously rejected the administration's arguments, saying the president's claims about war-torn Portland are “simply disconnected from the facts.” But the majority of the appeals court — Ryan Nelson and Bridget Bade, both appointed by Trump — found the president's decision was due more deference.
Bade wrote that the facts appeared to support Trump's decision “even if the president might exaggerate the magnitude of the problem on social media.”
Judge Susan Graber, an appointee of former President Bill Clinton, disagreed. She urged her colleagues on the 9th Circuit to “abandon the majority ruling before the illegal deployment of troops under false pretenses can occur.”
“In the two weeks leading up to the President's September 27 social media post, there was not a single incident of protesters disrupting the implementation of the laws,” Graber wrote. “It is difficult to understand how a small protest that does not cause disruptions could possibly meet the standard that the president is unable to carry out the laws.”
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Gene Johnson reported from Seattle.
