Federal Government Files Emergency Appeal to Keep Control of Oregon National Guard Troops

The federal government is asking a federal appeals court to pause a lower court block on sending federalized National Guard troops to protect the U.S. Immigration and Customs Enforcement (ICE) building in Portland, Oregon.

“The President was well within his discretion to consider months-long unrest in Portland, as well as the potential for continuing unrest over the foreseeable future,” attorneys for the Department of Justice (DOJ) wrote in a 490-page emergency motion filed the night of Nov. 16 in the Ninth U.S. Circuit Court of Appeals.

The DOJ is asking that the Ninth Circuit put on hold the Nov. 7 decision issued by Judge Karin Immergut of the U.S. District Court for the District of Oregon, who ordered that 200 Oregon National Guard members return to state control by Nov. 14.

In her ruling, which also bars federalizing and deploying the National Guard from any other state to Portland, Immergut found that President Donald Trump “exceeded the President’s authority” when he attempted to deploy hundreds of National Guard troops from Oregon, California, and Texas.

The injunction followed a three-day trial in which Immergut dismissed the administration’s argument that anti-ICE protests in Portland amounted to a “rebellion” against the federal government and significantly impeded its functions.

Federal law permits the president to take command of a state’s Guard only in specific circumstances: the inability to execute federal law with regular forces, a foreign invasion, or an active rebellion or threat of one.

“When considering these conditions that persisted for months before the President’s federalization of the National Guard, this Court concludes that even giving great deference to the President’s determination, the President did not have a lawful basis to federalize the National Guard,” Immergut concluded.

In its emergency motion, the DOJ argued that Immergut’s order unlawfully intruded on Trump’s authority to supervise military operations as commander-in-chief.

The DOJ also contended that Immergut “wrongly downplayed” the situation outside Portland’s ICE facility. She wrote that “riotous activity” at the federal building peaked in June, but she concluded that such incidents “diminished quickly” after the first few days of that month.

“The court acknowledged large-scale violent protests in June, but treated them as irrelevant to the President’s determination just a few months later,” government attorneys argued. “And while the court attempted to paint a picture of sharp decline in violent activity since then, the record shows that violence and threats of violence recurred more-or-less continuously.”

The Nov. 16 filing also revealed that the federal government plans to extend the National Guard’s mobilization.

In a sworn declaration attached to the appeal, Brig. Gen. Carrie L. Perez of the Army National Guard wrote that although Guard members were originally scheduled to remain on active duty Title 10 status until Nov. 26, the Department of War intends to extend that mobilization.

“I understand that the Oregon National Guard members will be demobilized despite the Department of War’s intent for those members to remain on Title 10 orders unless the district court’s injunction is subject to a further stay,” she stated.

Perez also told the court that demobilizing the troops would pose “logistical challenges,” noting that Guard members would have to be transported to a “designated site in Texas” for medical and administrative screenings.

Both the city of Portland and the state of Oregon have opposed the Guard’s deployment and are expected to argue against any attempt to stay Immergut’s order.

“Oregon does not want or need military intervention,” Oregon Gov. Tina Kotek said after the Nov. 7 district court ruling.