Ninth Circuit Greenlights Trump’s National Guard Deployment to Portland

On October 20, a three-judge panel of the Ninth Circuit issued a per curiam (unsigned and issued for the court as a whole) order in Oregon v. Trump, staying a lower court order that blocked the administration’s attempted deployment of Oregon National Guard troops to protect federal policy in Portland. Senior Judge Susan Graber dissented, but read pages 4 through 16 of the majority decision and you’ll find a very different image of what’s going on at the Lindquist Federal Building, an ICE facility in the Rose City, than you what you’re likely to see on TV.

The DHS Request and the Hegseth Order

On September 26, after months of protests at ICE’s Portland facility, DHS Secretary Kristi Noem asked the Department of War for “immediate and sustained assistance” to protect DHS assets in the state.

The next day, September 27, Trump issued the following statement on Truth Social:

In response, on September 28, Secretary of War Pete Hegseth sent a memorandum through Oregon Gov. Tina Kotek (D) to the adjutant general of the Oregon National Guard (the director of the Oregon Military Department and commander of the Oregon National Guard) asking for the deployment of 200 Oregon National Guard troops “into Federal service effective immediately for a period of 60 days”.

That Hegseth memo relied in part on a separate memo President Trump issued on June 7, “Department of Defense Security for the Protection of Department of Homeland Security Functions”, calling “into Federal service members and units of the National Guard under 10 U.S.C. 12406 to temporarily protect ICE and other United States Government personnel who are performing Federal functions”.

10 U.S.C. § 12406

The referenced provision, 10 U.S.C. § 12406, authorizes the president to “call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to” repel “invasions” (pursuant to subsection (1)), suppress “rebellions” (subsection (2)), or “execute” any federal “laws” “the President is unable” to enforce “with the regular forces” (subsection (3)).

In his June 7 memo, Trump concluded that by directly inhibiting the execution of the immigration laws, protests directed toward ICE personnel and facilities “constitute a form of rebellion against the authority of the Government of the United States”, seemingly satisfying requirements in subsections (2) and (3) of section 12406 for calling the National Guard into service.

Judge Immergut’s Order

In response to the Hegseth memo, the state of Oregon, city of Portland, and Portland Police Bureau (PPB) filed a complaint with the U.S. District Court for the District of Oregon.

They alleged that federalization of the Oregon National Guard was ultra vires (in excess of the president’s powers), and violative of the Tenth Amendment, the Administrative Procedure Act (APA), the Posse Comitatus Act, and separation of powers.

The case was assigned to Judge Karin Immergut, and on October 4, she issued a temporary restraining order (TRO) enjoining the Hegseth memo.

She concluded that the plaintiffs were likely to succeed on their claim that Trump’s order wasn’t authorized by section 12406 and therefore was ultra vires, and in violation of the Tenth Amendment, which states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

In her decision, Judge Immergut temporally limited her review of the situation in Portland to the period directly prior to Trump’s order, concluding:

As of September 27, 2025, it had been months since there was any sustained level of violent or disruptive protest activity in Portland. During this time frame, there were sporadic events requiring either PPB monitoring or federal law enforcement intervention, but overall, the protests were small and uneventful.

By way of background, DHS’s Federal Protective Service (FPS) — not the National Guard — generally provides security at federal government facilities.

Judge Immergut rejected the government’s claims that strains on FPS resources “suffice to show that the President had a colorable basis to invoke” section 12406(3), which allows the president to call out the National Guard when he “is unable with the regular forces to execute the laws of the United States”.

Rather, she concluded, the deployment of 115 FPS officers from outside Portland “demonstrate[s] just the opposite, that federal law enforcement officers, unaided by any military forces, were capable of not only ‘quelling’ the violence in June but also ‘preventing’ it through September” (cleaned up).

Judge Immergut also used the president’s own words, specifically his contention Portland was “War ravaged” and that ICE’s facility was “under siege from attack by Antifa”, to support her conclusion that the proposed National Guard deployment was “not ‘conceived in good faith’”.

“Whatever the factual basis the President may have for these allegations,” the judge held, “nothing in the record suggests that anything of this sort was occurring ‘every night’ outside the Portland ICE building or in the City of Portland in the days or weeks leading up to his September 27 directive.”

The Ninth Circuit Order

DOJ immediately filed an appeal of Judge Immergut’s TRO with the Ninth Circuit, and sought a stay of her order from the appellate court.

On October 20, a three-judge circuit panel issued its order in Oregon, with the two judges in the majority (Ryan Nelson and Bridget Bade) concluding Trump “likely lawfully exercised his statutory authority” in section 12406(3) given that the evidence he “relied on reflects a ‘colorable assessment of the facts and law within a range of honest judgment’”, the standard for such action under Ninth Circuit precedent.

As alluded to at the outset, pages 4 through 16 in that order lay out, in chronological order, the abuses those working at the Lindquist Federal Building have endured, and underscored the fact that between June 13 and July 7, DHS had to close the facility “as a result of the destruction caused by protesters and threats to the building” (cleaned up).

For the “TL;DR” crowd, here’s a concise summarization of that evidence:

the undisputed facts show that protesters damaged a federal building, leading to its closure for over three weeks, attempted to burn the building down, placed chains on the doors, attempted to breach the front door of the building and broke the front glass door, threw objects at the building, including rocks, sticks, and a mortar, and launched M80 fireworks at federal officers, assaulted federal officers, shined lasers at officers’ eyes, and doxed federal officers.

But note this particular vignette, which plainly qualifies as abuse of the elderly and “unhoused”:

On September 4, a PPB officer reported seeing several older homeless people being coerced into approaching the ICE facility gate; the instigators told these people that they should create a distraction or simply rattle the gate. Officers confirmed this was happening by watching “the instigators escorting different older homeless people up to the gate.” FPS took custody of an elderly man after he asked “if he could just come up to the gate and rattle it so the antifa instigators would leave him and others alone.” He was escorted behind the gates and interviewed. He told agents that he and several other homeless people were being coerced to act “to instigate agent response.” [Cleaned up.]

And this one, when the city added insult to DHS’s injury:

While the [Lindquist] facility is again currently operational, the windows on the building must remain boarded to prevent further damage to property or attempts at incursion and to provide security to those federal employees working inside. … But on September 18, the City of Portland issued a Notice of Zoning Violation requiring the removal of wood coverings on the windows within 30 days.

That municipal attitude may be why, “when FPS called PPB multiple times on September 9 to request assistance with a woman who was being physically assaulted by a group of 12 to 13 protesters outside the ICE facility, PPB would not intervene or assist”.

Plainly, this isn’t just a bunch of merry pranksters in frog suits, frolicking at a street party.

With respect to the FPS deployment Judge Immergut blithely dismissed, the majority noted that the 115 officers the agency has deployed there (24/7, on 12-hour shifts, at a cost of more than $2 million), are “nearly 25%, a quarter of FPS’s officers nationwide”.

Most notably, the circuit order found Judge Immergut erred by limiting her temporal review of the protests (to the weeks immediately preceding the president’s order) and by substituting her “own assessment of the facts for the President’s assessment of the facts”, which is “the opposite of the significantly deferential standard of review that applies to the President’s decision to invoke § 12406(3) and federalize members of the National Guard”.

Simply put, the majority concluded that both FPS and ICE are stretched thin by the attacks on ICE’s Portland facility, and that the president was well within his authority to call out the National Guard for protection.

Judge Nelson’s Concurrence

Judge Ryan Nelson issued his own concurrence, and three points therein merit special notice.

First, he argued that under Supreme Court precedent (mainly dating to the early years of the Republic), section 12406 invocations aren’t subject to judicial review. If there is a remedy for any overreach in that provision, he concluded, it’s through the political process, not the courts.

Second, the judge contended, section 12406 has been used in the past “for far more anodyne purposes”, such as when President Nixon issued Proclamation 3972 and used the National Guard to deliver mail during a postal worker strike.

Third, he explained, Trump likely has a good argument that what’s occurring in Portland (and elsewhere) qualifies as a “rebellion” under section 12406(b).

In that vein, Judge Nelson specifically cited to the use of federal troops during “Shays’s Rebellion”, the “Whiskey Rebellion”, and the lesser-known “Fries’s Rebellion” (all single-issue tax revolts), the latter two when the Militia Acts — the predecessor to 12406 — were invoked.

Here’s Judge Nelson’s description of Fries’s Rebellion; see if it sounds familiar:

In response to an unpopular land tax in 1799, Americans in eastern Pennsylvania attacked tax assessors coming to their property by pouring boiling water on them from their windows and intimidated those federal officials into resigning their jobs. … All in all, this unrest never exceeded more than 150 men. And many incidents involved isolated individuals in a discrete geographic region engaging in extended violence against federal officials to oppose the tax policy.

He concluded, “if domestic unrest today would have been reasonably understood as rebellion during the Founding era, then it should also be understood as ‘rebellion’ under § 12406(2)”.

Long Story Short

The Ninth Circuit order allows the Trump administration to federalize and deploy National Guard troops to Portland for the specific purpose of protecting ICE and other federal officers as they enforce federal law. Attacks on federal authority are nothing new in this Republic, but neither is the use of troops to stymie them.