Left: Donald Trump speaks at the annual Road to Majority conference in Washington, DC, in June 2024 (Allison Bailey/NurPhoto via AP). Right: U.S. District Judge Karin Immergut (Stanford Law School).
The Trump administration on Sunday asked a federal appeals court to step in and halt a federal judge”s block preventing the government from deploying the National Guard in Portland, Oregon, calling that decision rife with “critical errors” that did not afford the president the “deference” he deserved.
In an emergency request at the 9th Circuit U.S. Court of Appeals for a stay pending appeal or at least an administrative stay by Nov. 21, the DOJ defended President Donald Trump’s September determination that federalizing troops was necessary to protect an ICE facility and federal personnel in the face of a “danger” of “rebellion,” even though the worst of the violence occurred months earlier.
Ten days ago, U.S. District Judge Karin Immergut, a Trump appointee, found that there were “violent protests” in June but these “quickly abated due to the efforts of civil law enforcement officers” and have been “predominately peaceful, with only isolated and sporadic instances of relatively low-level violence, largely between protesters and counter-protesters” since then.
Trump’s decision to federalize the National Guard months after the time when violence was at its worst was a contentious issue during early October oral arguments at the 9th Circuit.
Though the three-judge panel found in Trump’s favor, the 9th Circuit in late October vacated the decision and voted to take the case up en banc, meaning a full appellate bench saw fit to hear arguments again.
That move came days after the DOJ admitted multiple prior representations about federal deployments to Portland were “incorrect” and expressed “regret” for making numerous such “errors” in court filings.
Immergut, after a brief trial, preliminarily revealed at the start of November that even handing Trump a “great level of deference” on the issue did not override “credible evidence” that there likely was “no lawful basis” for federalizing Oregon’s National Guard and or calling in troops from other states.
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Days later, Immergut ruled that the federal government violated the 10th Amendment and 10 U.S.C. § 12406, the statute that authorizes the president to call up the guard when he is “unable with the regular forces to execute the laws of the United States.”
In its latest filing before the 9th Circuit, the Trump administration asserted that Immergut’s decision to permanently block “federalization and deployment of the Oregon National Guard or Guardsmen from any other state to Portland” was erroneous in a number of ways.
The DOJ said Immergut “wholly failed” to give Trump the “deference required,” “wrongly downplayed the dangerous conditions at the ICE facility,” and treated the June violence as “irrelevant” to Trump’s “plainly lawful” decision “just a few months later.”
“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 government said. “More broadly, the court emphasized that certain incidents did not result in significant violence. But this ignores the substantial and continuous threat of violence and resulting inhibition of federal operations. The President certainly had ‘colorable’ grounds to determine that regular forces were ‘unable’ to sufficiency protect federal personnel and property and that the conditions rose at least to the level of a ‘danger’ of rebellion.”
Accusing Immergut of making “several critical errors” by siding against Trump, the DOJ threw the Portland Police Bureau under the bus as “not a reliable partner in protecting federal officials and property[.]”
That, the DOJ said, “only further underscores that [Trump] had a colorable basis for his determination.”
“Congress empowered the President to ‘call into Federal service’ members of the National Guard when ‘there is a rebellion or danger of a rebellion against the authority of the Government of the United States’ or ‘the President is unable with the regular forces to execute the laws of the United States,'” the filing concluded. “The President judged that those conditions were satisfied in Portland, and the district court had no basis to override that judgment.”
