President Donald Trump got the all-clear from the U.S. Court of Appeals for the Ninth Circuit to deploy the Oregon National Guard to protect the Immigration and Customs Enforcement Facility in Portland — at least for the time being, while litigation continues over the matter.
The ruling was issued by a three-judge panel that included two of Trump's own appointees, Judges Ryan Nelson and Bridget Bade — overriding the decision to block the deployment made by District Judge Karin Immergut, herself a Trump appointee.
"The decision of how many troops to call into service has ... always fallen exclusively to the President," wrote Nelson in a concurrence. "But when proportionality is present, it supports that the President acted in good faith rather than pretextually. District courts must not micromanage the President’s use of statutory powers delegated to him under the Militia Clause."
Judge Susan Graber, an appointee of former President Bill Clinton, wrote a dissent criticizing the majority for accepting the Trump administration's arguments when their claims did not support the law.
"The trigger for federalizing the National Guard is an inability to execute the laws, not staffing difficulties that fall short of demonstrably resulting in an inability to execute the laws," Graber wrote. "The government has not explained how its purported staffing troubles were causing an inability to execute the laws on September 27."
According to Texas reporter Bayliss Wagner, the Texas National Guard was not party to the appeal, so Gov. Greg Abbott's move to deploy them to Portland on Trump's behalf remains blocked for now.
