Court Sides With Trump on Oregon National Guard, But Deployment Still Blocked

Court Sets Aside Oregon National Guard Restraining Order

The Trump Administration sought an emergency stay of Judge Immergut’s first TRO that kept the Oregon National Guard federalized but blocked Trump from deploying troops on October 4. Yesterday, in a 2-1 ruling, the Ninth Circuit Court of Appeals stayed the TRO.

The Justice Department had argued that the National Guard troops were needed to protect federal property from protesters.

They said 115 officers were deployed from other regions, working on a 24/7 basis, to maintain order at the Portland ICE facility. They have spent over $2 million on overtime pay and expenses since June 2025 to maintain order in the wake of the protests.

Sending extra Department of Homeland Security (DHS) agents to help guard the property also means those personnel were not enforcing immigration laws elsewhere.

The Trump Administration cited several incidents at the Portland ICE facility and said local law enforcement is not always available to attend to complaints when called to the facility.

In the lawsuit, PPB Police Chief Bob Day’s June 2025 comments about avoiding any actions that might show ‘perceived or actual support’ for immigration agents were cited to support the contention that PPB was not adequately addressing the situation.

Oregon Governor Tina Kotek said in a statement responding to the ruling, “Over the weekend, people across Oregon gathered peacefully to send a message that the Trump Administration is being dishonest, and these actions to deploy troops are a gross, un-American abuse of power.”

In the ruling, judges Ryan Nelson and Bridget Bade, both Trump appointees, said the President’s decision was owed more deference and confirmed that Section 12406 authorizes the President to federalize members of the National Guard in three circumstances, whenever

the United States is invaded or is in danger of invasion by a foreign nation, there is a rebellion or danger of a rebellion against the authority of the Government of the United States, or the President is unable to execute the laws of the United States with the regular forces.

The judges said the plain text in § 12406(3) requires only a determination that the President is unable to execute the laws of the United States with the regular forces.

Judge Bade also wrote that the facts appeared to support Trump’s decision “even if the President may exaggerate the extent of the problem on social media.” As a result, the court, by majority decision, granted the Administration’s motion for a stay pending appeal.

In a dissenting judgment, Judge Susan Graber, an appointee of former President Bill Clinton, urged her colleagues on the 9th Circuit to “vacate the majority’s order before the illegal deployment of troops under false pretenses can occur.” She noted that, in the two weeks leading up to the President’s September 27 social media post, there had not been a single incident of protesters disrupting the execution of the laws.

Graber found it hard to understand how a tiny protest causing no disruptions could possibly satisfy the standard that the President is unable to execute the laws.

Judge Graber said that, “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. But today’s decision is not merely absurd.

It erodes core constitutional principles, including sovereign States’ control over their state’ militias and the people’s First Amendment rights to assemble and to object to the government’s policies and actions. I strenuously dissent.”

U.S. District Judge Karin J. Immergut’s second order remains in effect, so no troops may immediately be deployed, but late Monday, the federal Justice Department asked her to lift her second broader temporary order that bars the president from placing any National Guard under federal control in Oregon.

Oregon Attorney General Dan Rayfield said, “Today’s ruling, if allowed to stand, would give the president unilateral power to put Oregon soldiers on our streets with almost no justification. We are on a dangerous path in America.”

The original lawsuit is scheduled for next week, when a federal judge in Portland is set to hear the case.