Judges on the U.S. Court of Appeals for the Ninth Circuit appeared poised Thursday to clear the way for President Trump to deploy National Guard troops to Portland, Ore., and to stay a lower court ruling that Mr. Trump had likely exceeded his authority by declaring a “rebellion” where none existed.
Two of the three judges on the panel – Bridget S. Bade and Ryan D. Nelson – were appointed to the bench by President Trump during his first term. During the 70-minute proceeding, they vigorously questioned the district court judge’s conclusion that the protests near an Immigration and Customs Enforcement clearinghouse in South Portland were limited in scale and that a military response was not necessary to keep them under control.
Responding to an Oregon state lawyer’s claims that the streets were now relatively quiet, Judge Nelson suggested that a proper reading of the law would require courts to give the president wide latitude to review prior events.
As an example, the judge mentions the attack on Fort Sumter in 1861, which marked the start of the Civil War.
“I’m not even sure that President Lincoln would have been able to muster forces when he did it,” Judge Nelson said. “If he hadn’t done it right after, immediately after Fort Sumter, your argument would be, ‘Oh, everything’s fine right now.'”
The appeals panel’s deference to the Trump administration’s view of events stood in stark contrast to a district court judge’s ruling days earlier.
On October 4, Judge Karin J. Immergut of the U.S. District Court for the District of Oregon ruled that the president’s opinion on Portland “simply did not relate to the facts.” The evidence, she said, indicates there were a handful of disturbing incidents in September — flashlights pointed at drivers’ eyes, the lining up of an unmarked ICE vehicle and the setting up of a “makeshift guillotine.”
Judge Immergut, who was also appointed by Mr. Trump during his first term, called the incidents “inexcusable” but also easy to handle by “regular law enforcement.”
But during Thursday’s appeal hearing, Justices Nelson and Bade at times appeared to suggest that the current state of the protests would be enough to justify Mr. Trump’s deployment of the National Guard.
“It’s not all about what we see on the street,” Judge Nelson said, apparently referring to internal decision-making within the executive branch. “It also depends on what’s going on behind the scenes.”
Protests against ICE in Portland began in early June, with crowds reaching several hundred people at their peak and violence between a small but persistent group of protesters and federal officials.
At one point, the ICE building was closed for more than three weeks in response to the clashes. But the scale and intensity of the protests diminished over the summer, and by September there were fewer than a dozen people on several evenings. Portland police have made 40 arrests at the building since protests began.
Judge Nelson acknowledged that protest activity had subsided, but he attributed the decline to an influx of additional federal agents, which Eric McArthur, a Justice Department lawyer representing the administration, called “an unsustainable and dangerous diversion of the government’s limited protective resources.”
The appeals panel has already stayed an order by Judge Immergut that barred some 200 Oregon National Guard troops from being placed under federal control. It is unclear when the committee will make its next decision.
The case will almost certainly be retried to determine the extent of President Trump’s authority. The panel’s decisions can be heard en banc – a new round of review before a larger panel – if a majority of the court’s judges vote in favor of that decision.
On the Ninth Circuit, which has 29 judges, en banc panels consist of the chief judge and 10 randomly selected judges. Since Mr. Trump’s first term, the party divide on the Court has narrowed significantly, now falling from 16 to 13 between Democratic and Republican nominees, compared to 18 to 7 in 2017.
