A 2-1 majority on the 9th Circuit Court of Appeals on Monday granted President Trump a major legal win, ruling to allow him to deploy the National Guard in Portland, against the wishes of the state of Oregon, which had filed a temporary restraining order to pause the deployments. The victory was made possible thanks to two Trump judges.
Judges Ryan D. Nelson and Bridget S. Bade—both first-term Trump appointees—voted to affirm the president’s decision to “federalize 200 members of the Oregon National Guard for 60 days to protect federal personnel and property at the Lindquist Building, an Immigration and Customs Enforcement (ICE) facility in Portland, Oregon.” Judge Susan Graber, a Clinton appointee, was the lone dissent.
“We conclude that it is likely that the President lawfully exercised his statutory authority under 10 U.S.C. § 12406(3), which authorizes the federalization of the National Guard when ‘the President is unable with the regular forces to execute the laws of the United States,’” the affirming judges wrote. “The evidence the President relied on reflects a ‘colorable assessment of the facts and law within a ‘range of honest judgment.’’”
This is the exact kind of situation in which the right would start to bemoan “activist judges.” They went on to compare the anti-ICE protests in Portland to Shays’s Rebellion in the 18th century, which resulted in nine deaths, dozens of woundings, and two eventual executions.
“The President federalized the militia to ensure that the law could be fully enforced … Shays’s Rebellion … occurred during the Articles of Confederation period,” the affirming judges wrote. “General Washington feared that American republicanism might fail as the ‘mobbers’ tried ‘to shut down courts’ and attacked government officials who ‘earnestly [sought] to obey [and enforce] the laws that the people themselves had authorized.’ This episode left an indelible mark on the Founders. They designed the Constitution to provide a Union that could safeguard the lives of law-abiding Americans trying to enforce the nation’s laws the next time a Shays’s Rebellion arose.”
In her dissent, Judge Graber dispelled any such notions.
“Those rebellions shared several salient characteristics, including a large number of participants relative to the population and to available law enforcement, a wide geographic scope, evident organization and leadership, widespread use of arms, intense ferocity, and the creation of extreme difficulty restoring control by means of ordinary law enforcement,” she wrote. “What occurred in Portland differed in every dimension. As already noted, there is no evidence of organization or leadership, widespread use of arms, ferocity, or difficulty exerting control by ordinary means.”
She then used examples from police themselves to demonstrate that there was no “urgent need” for federal involvement, and warned against “political theater” in the judiciary.
“We have come to expect a dose of political theater in the political branches, drama designed to rally the base or to rile or intimidate political opponents. We also may expect there a measure of bending—sometimes breaking—the truth,” Graber concluded. “By design of the Founders, the judicial branch stands apart. We rule on facts, not on supposition or conjecture, and certainly not on fabrication or propaganda. 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.”
Oregon’s attorney general Dan Rayfield chimed in shortly after the ruling was announced.
“We are on a dangerous path in America. A panel of Ninth Circuit judges has chosen to not hold the president accountable: They just granted the federal government’s motion to stay our first TRO, which prevented the president from deploying Oregon National Guard troops in Oregon,” he wrote on X. “We will oppose the government’s motion to dissolve the second TRO, and we urge the full Ninth Circuit to vacate today’s decision before the illegal deployments can occur. We’ll continue to fight for Oregon’s laws and values no matter what—and we’ll continue to share updates.”
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