The U.S. 9th Circuit Court of Appeals appears poised to recognize President Trump’s authority to send soldiers to Portland, Ore., with members of the court signaling receptiveness to an expansive new read of the president’s power to put boots on the ground in American cities.
A three-judge panel from the appellate court — including two members appointed by Trump during his first term — heard oral arguments Thursday after Oregon challenged the legality of the president’s order to deploy hundreds of soldiers to Portland. The administration claims the city has become lawless; Oregon officials argue Trump is manufacturing a crisis to justify calling in the National Guard.
While the court has not issued a decision, a ruling in Trump’s favor would mark a sharp rightward turn for the once-liberal circuit — and probably set up a Supreme Court showdown over why and how the U.S. military can be used domestically.
“I’m sort of trying to figure out how a district court of any nature is supposed to get in and question whether the president’s assessment of ‘executing the laws’ is right or wrong,” said Judge Ryan D. Nelson of Idaho Falls, Idaho, one of the two Trump appointees hearing the arguments.
“That’s an internal decision making, and whether there’s a ton of protests or low protests, they can still have an impact on his ability to execute the laws,” he said.
U.S. District Judge Karin Immergut of Portland, another Trump appointee, previously called the president’s justification for federalizing Oregon troops “simply untethered to the facts” in her temporary restraining on Oct. 4.
The facts about the situation on the ground in Portland were not in dispute at the hearing on Thursday. The city has remained mostly calm in recent months, with protesters occasionally engaging in brief skirmishes with authorities stationed outside a U.S. Immigration and Customs Enforcement building.
Instead, Nelson and Judge Bridget S. Bade of Phoenix, whom Trump once floated as a possible Supreme Court nominee, questioned how much the facts mattered.
“The president gets to direct his resources as he deems fit, and it seems a little counterintuitive to me that the city of Portland can come and say, ‘No you need to do it differently,’” Nelson said.
He also appeared to endorse the Department of Justice’s claim that “penalizing” the president for waiting until protests had calmed to deploy soldiers to quell them created a perverse incentive to act first and ask questions later.
“It just seems like such a tortured reading of the statute,” the judge said. He then referenced the first battle of the U.S. Civil War in 1861, saying, “I’m not sure even President Lincoln would be able to bring in forces when he did, because if he didn’t do it immediately after Fort Sumter, [Oregon’s] argument would be, ‘Oh, things are OK now.’”
Trump’s efforts to use troops to quell protests and support federal immigration operations have led to a growing tangle of legal challenges. The Portland deployment was halted by Immergut, who blocked Trump from federalizing Oregon troops. (A ruling from the same case issued the next day prevents already federalized troops from being deployed.)
In June, a different 9th Circuit panel also made up of two Trump appointees ruled that the president had broad — though not “unreviewable” — discretion to determine whether facts on the ground met the threshold for military response in Los Angeles. Thousands of federalized National Guard troops and hundreds of Marines were deployed over the summer amid widespread protests over immigration enforcement.
The June decision set precedent for how any future deployment in the circuit’s vast territory can be reviewed. It also sparked outrage, both among those who oppose armed soldiers patrolling American streets and those who support them.
Opponents argue repeated domestic deployments shred America’s social fabric and trample protest rights protected by the 1st Amendment. With soldiers called into action so far in Los Angeles, Portland and Chicago, many charge the administration is using the military for political purposes.
“The military should not be acting as a domestic police force in this country except in the most extreme circumstances,” said Elizabeth Goitein, senior director of the Liberty and National Security Program at New York University’s Brennan Center for Justice. “That set of circumstances is not present right now anywhere in the country, so this is an abuse of power — and a very dangerous one because of the precedent it sets.”
Supporters say the president has sole authority to determine the facts on the ground and if they warrant military intervention. They argue any check by the judicial branch is an illegal power grab, aimed at thwarting response to a legitimate and growing “invasion from within.”
“What they’ve done to San Francisco, Chicago, New York, Los Angeles — they’re very unsafe places, and we’re going to straighten them out one by one,” Trump said in an address to military top brass last week. “That’s a war too. It’s a war from within.”
The 9th Circuit agreed to rehear the Los Angeles case with an 11-member “en banc” panel in Pasadena on Oct. 22, signaling a schism among Trump’s own judges over the boundaries of the president’s power.
Still, Trump’s authority to call soldiers into American cities is only the first piece in a larger legal puzzle spread before the 9th Circuit, experts said.
What federalized troops are allowed to do once deployed is the subject of another court decision now under review. That case could determine whether soldiers are barred from assisting immigration raids, controlling crowds of protesters or any other form of civilian law enforcement.
Trump officials have maintained the president can wield the military as he sees fit — and that cities such as Portland and L.A. would be in danger if soldiers can’t come to the rescue.
“These are violent people, and if at any point we let down our guard, there is a serious risk of ongoing violence,” Deputy Assistant Atty. Gen. Eric McArthur said. “The president is entitled to say enough is enough and bring in the National Guard.”