A divided Ninth Circuit panel has allowed, for now, President Donald Trump’s bid to federalize the Oregon National Guard for Portland, prompting sharp warnings from multiple judges that excessive judicial deference to such deployments risks eroding the rule of law and state sovereignty.
The U.S. Court of Appeals for the Ninth Circuit on Oct. 20 granted the Trump administration a stay of a district court order that had temporarily blocked the federalization of 200 Oregon National Guard troops for duty in Portland. The 2–1 order, issued by Judges Ryan D. Nelson and Bridget S. Bade, concluded at this preliminary stage that the president likely acted within 10 U.S.C. § 12406 by relying on a “colorable assessment” of facts showing regular federal forces could not execute the laws. Judge Susan P. Graber dissented. The panel noted that a separate temporary restraining order previously issued by the district court still prevented any National Guard deployment in Oregon pending further proceedings. According to filings that day, the Justice Department moved to dissolve that second order.
In her dissent, Judge Graber urged swift action from her colleagues, writing: “I urge my colleagues on this court to act swiftly to vacate the majority’s order before the illegal deployment of troops under false pretenses can occur. Above all, I ask those who are watching this case unfold to retain faith in our judicial system for just a little longer.” She also warned that the majority’s approach “abdicates our judicial responsibility” and threatens “core constitutional principles,” including states’ control over their militias and protections for peaceful assembly.
The Oregon dispute followed a related fight over federalized Guard deployments in Los Angeles. On Oct. 22, the Ninth Circuit declined to rehear en banc a June panel ruling that had favored the administration in California’s challenge to the Los Angeles deployment. Senior Judge Marsha S. Berzon, joined by Chief Judge Mary Murguia and nine other judges, issued a statement warning that, without strict adherence to statutory limits on domestic military use, “this country could devolve into one in which the use of military force displaces the rule of law, principles of federalism, and the federal separation of powers.” Judge Ronald M. Gould, in a separate dissent from the denial of rehearing, wrote that a case determining when a president may federalize and deploy troops in American cities “warranted a more extensive consideration” and that “when Congress places limits on the President’s statutory powers, courts must enforce them.”
The immediate Oregon cases arose after U.S. District Judge Karin J. Immergut—who had blocked the deployment in early October—wrote that recent Portland protest activity did not justify federalized troops and cautioned that the administration’s arguments risked blurring civil and military power. “This is a nation of Constitutional law, not martial law,” she wrote in granting temporary restraining orders that first barred deployment of Oregon Guard members and then prohibited any federalized Guard from any state from operating in Oregon.
Together, the rulings and dissents underscore a widening divide on the Ninth Circuit over the limits of presidential authority to use the National Guard in domestic settings. The panel majority in both the California and Oregon matters emphasized deference to the president’s judgment at the stay stage, while several judges have insisted on robust judicial review to police the statutory boundaries Congress set for federalizing state militias.