Judges from the U.S. Court of Appeals for the Ninth Circuit seemed poised on Thursday to clear the way for President Trump to deploy National Guard troops to Portland, Ore., and pause a lower-court ruling that found that Mr. Trump had probably exceeded his authority by declaring a “rebellion” where there was none.
Two of the panel’s three judges — Bridget S. Bade and Ryan D. Nelson — were nominated to the bench by President Trump during his first term. Over the course of the 70-minute proceeding, they vigorously questioned the district court judge’s conclusion that the protests near an Immigration and Customs Enforcement facility in South Portland were limited in scale and that a military response wasn’t necessary to keep them under control.
Responding to assertions by a lawyer for the State of Oregon that the streets were now relatively calm, Judge Nelson suggested that a correct reading of the law would require the courts to give the president wide latitude to consider earlier events.
As an example, the judge brought up the attack on Fort Sumter in 1861, which marked the beginning of the Civil War.
“I’m not even sure President Lincoln would have been able to bring forces when he did,” Judge Nelson said. “If he didn’t do it right after, immediately after Fort Sumter, your argument would be, ‘Oh, things are OK right now.’”
The appeals panel’s deference to the Trump administration’s view of events was in striking contrast to a district court judge’s ruling just days earlier.
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