Judges on the U.S. Ninth Circuit Court of Appeals voted Tuesday to reconsider a decision that had opened the door to the deployment of National Guard soldiers in Oregon, vacating the ruling by two judges appointed by President Trump and sending the matter to a larger panel.
The decision by the appeals court maintains, for now, a fragile status quo in which 200 Oregon National Guard troops are under federal control but in limbo as the legal wrangling continues.
Mr. Trump wants to use the military to protect the Immigration and Customs Enforcement building in Portland, Ore., after almost five months of daily protests and occasional clashes between federal officers and demonstrators.
Portland and Oregon sued the administration in late September after the Department of Defense moved to federalize 200 Oregon soldiers.
U.S. District Court Judge Karin Immergut, who was appointed by Mr. Trump, imposed two temporary restraining orders earlier this month. One blocked the deployment of Oregon soldiers and a second, issued after the administration responded to her first restraining order by sending California troops to Oregon, extended that to cover any use of the National Guard in Portland.
Judge Immergut ruled that the president had not met the legal standard allowed to federalize the National Guard. But on Oct. 20, two members of a three-judge panel of the Ninth Circuit overruled her, saying that while the president may have exaggerated the situation in Oregon, they believed he would prove at trial that existing federal resources were not enough to execute federal immigration policy in Oregon with the ICE building under continual siege by demonstrators.
A judge on the Ninth Circuit then filed a request to the full court to reconsider that decision “en banc,” which essentially calls for a vote of all active Ninth Circuit judges on whether to have a larger panel hear the case. On Tuesday evening, the court announced the result of that vote: A majority of judges agreed to hear the challenge to Judge Immergut’s temporary restraining order, effectively erasing the three-judge panel’s ruling overturning it.
It’s not clear when the larger Ninth Circuit panel will hear the case. Until then, Oregon National Guard members are federalized but cannot be deployed. A trial in the broader lawsuit is scheduled to begin Wednesday in US. district court.
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