A decision in Donald Trump’s favor by a three-judge panel issued on Monday, which lifted a block on his planned deployment of Oregon national guard troops to Portland, could be reconsidered by a new, larger panel of federal appeals court judges.
Hours after the three-judge panel decided, 2-1, that Trump has the legal authority to deploy federalized troops to Portland, a judge on the ninth circuit court of appeals formally requested “a vote on whether this case should be reheard” by a larger panel of judges.
That triggered a formal order for lawyers for the state of Oregon and the city of Portland to submit written briefs arguing for a rehearing, and lawyers for the Trump administration to argue against it, by midnight on Wednesday.
After those briefs are submitted, all 29 active judges on the appeals court, the country’s largest, will vote on whether or not to rehear the case.
Oregon’s governor, Tina Kotek, said that she hopes the full ninth circuit court of appeals vacates the panel’s 2-1 decision, as the dissenting judge, Portland-based Susan Graber, urged her colleagues to do.
“I’m very troubled by the decision of the court,” Kotek told reporters. “I still urge the Trump administration to send all the national guard members home.”
If the vote for a new hearing wins, legal journalist Chris Geidner said, the case will be heard again by 11 judges, including the court’s chief judge, Mary Murguia, an Obama nominee, and 10 randomly assigned judges.
The ninth circuit panel earlier on Monday decided to lift a lower court’s recent ruling that had prevented Trump from sending troops into the Democratic stronghold. Trump has claimed the right to deploy national guard troops to Portland for the purported purpose of protecting federal property and agents.
Oregon’s attorney general, Dan Rayfield, also called on the full appeals court to follow judge Garber’s dissent and reverse the decision made by the panel.
“Oregon joins Judge Graber in urging the full ninth circuit to ‘act swiftly’ en banc ‘to vacate the majority’s order before the illegal deployment of troops under false pretenses can occur’,” Rayfield said. “And, like her, we ‘ask those who are watching this case unfold to retain faith in our judicial system for just a little while longer’.”
This ruling allows Trump to maintain control over the state’s national guard until litigation proceeds completely through court. The decision does not mean that troops will arrive to Portland right away, the Oregonian reported.
The initial three-judge panel was comprised of two judges nominated by Trump during his first term, who voted to allow the troop deployment, and one nominated by Bill Clinton, who voted against it.
Graber, the dissenting judge, described the ruling to allow the deployment as having “no legal or factual justification”. An appointee of Bill Clinton, Graber said efforts to describe the city as a “war zone” were absurd, noting protesters wearing inflatable frog costumes.
Of the 29 judges who can vote on the rehearing (all who are not on semi-retired, “senior” status), 16 were nominated by Democratic presidents (eight by Biden, five by Obama and three by Clinton) and 13 by Republican presidents (10 by Trump and three by George W Bush).
According to Steve Vladeck, a Georgetown law professor, all three of the judges from the initial panel would be eligible for the second panel of 10 judges. Graber is on senior status, but she is eligible because she was on the initial panel.
The secretary of defense, Pete Hegseth, issued a memorandum on 28 September stating that 200 members of Oregon’s national guard would be “called into Federal service effective immediately for a period of 60 days”. The memo came after Trump’s demand for a military deployment to Portland.
Kotek, said previously at a news conference that she had been notified by the Pentagon that the US president had seized control of the state’s reservists, claiming authority granted to him to suppress “rebellion” or lawlessness.
City and state officials filed suit shortly thereafter to block the deployment.
“When the president and I spoke yesterday,” Kotek said at the time, “I told him in very plain language that there is no insurrection, or threat to public safety that necessitates military intervention in Portland.”
Oregon’s attorney general, Dan Rayfield, said that Trump’s deployment was unlawful. Portland had neither seen a foreign invasion nor sprawling anarchy – rather, there was one minor protest outside an Immigration and Customs Enforcement field office in Portland.
“Let’s be clear, local law enforcement has this under control,” Kotek also said. “We have free speech demonstrations that are happening near one federal facility. Portland police is actively engaged in managing those with the federal folks at the facility, and when people cross the line, there’s unlawful activity, people are being held accountable.”
The judge presiding over this lawsuit, Karin Immergut, blocked Trump’s effort to deploy Oregon national guard troops and said his contentions about Portland’s atmosphere were “simply untethered to the facts”. Trump tried to circumvent Immergut’s order by deploying federalized California national guard troops to Oregon.
Immergut, a Trump appointee, imposed a second order prohibiting the deployment of any national guard troops to Portland.
The decision lifting Immergut’s order said that at this stage of litigation, “we conclude that it is likely that the President lawfully exercised his statutory authority … which authorizes the federalization of the National Guard when ‘the President is unable with the regular forces to execute the laws of the United States.’”
The judges who decided against Immergut’s decision, Ryan Nelson and Bridget Bade, are Trump appointees.
In her dissent, Graber takes issue with Trump’s portrayal of Portland as a hotbed of civil conflict where roving residents impeded Ice’s operations. “No legal or factual justification supported the order to federalize and deploy the Oregon National Guard,” Graber wrote.
“Given Portland protesters’ well-known penchant for wearing chicken suits, inflatable frog costumes, or nothing at all when expressing their disagreement with the methods employed by ICE, observers may be tempted to view the majority’s ruling, which accepts the government’s characterization of Portland as a war zone, as merely absurd,” she also said. “But today’s decision is not merely absurd. It erodes core constitutional principles, including sovereign States’ control over their States’ militias and the people’s First Amendment rights to assemble and to object to the government’s policies and actions.”
Oregon’s attorney general, Dan Rayfield, slammed the panel’s ruling and said that if it stands, Trump would have “unilateral power to put Oregon soldiers on our streets with almost no justification”.
“We are on a dangerous path in America,” Rayfield said.
