Ninth Circuit Temporarily Blocks Trump’s Portland National Guard Deployment

On October 23, I reported that three days earlier, a divided three-judge panel of the Ninth Circuit had stayed a district court order that prevented the Trump administration from deploying the National Guard to Portland to protect ICE officers at a processing facility there (pictured here). The next day, Senior Judge Sidney Thomas issued an order administratively staying that earlier Ninth Circuit order until close of business on October 28. Brace yourself for more court action – and a discourse on appellate court “en banc” procedure. 

Different Views of What’s Happening in Portland

ICE officers in Portland work primarily out of the Lindquist Federal Building, which has made that facility the target of protests and attacks by those not aligned with the president’s immigration views since late spring. 

Some of the protestors are deliberately light-hearted (dressed in inflatable frog outfits and lobster suits) while others are anything but (complete with riot helmets, shields, and face coverings). 

Unless you are physically there (and I have no intention of going during the rainy season), it’s unclear what exactly is happening at the Lindquist building. 

On the one hand, an AP headline from October 9 declares: “FACT FOCUS: Trump paints a grim portrait of Portland. The story on the ground is much less extreme”.

The other hand is the more important one, however, because it was wielded by the two Ninth Circuit judges who had lifted the block on Trump’s National Guard deployment. As they noted in their October 20 order: 

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. 

Respectfully, that sounds pretty “extreme” to me, and apparently it did to the president as well, because on September 27 he directed Secretary of War Pete Hegseth to send the National Guard to Portland.

Hegseth responded the next day, sending a memorandum through Oregon Gov. Tina Kotek (D) to the adjutant general 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”. 

10 U.S.C. § 12406

Hegseth and Trump were acting under congressional authority in 10 U.S.C. § 12406, which states, in pertinent part: 

Whenever—(1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation; (2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or (3) the President is unable with the regular forces to execute the laws of the United States; the President may call into Federal service members and units of the National Guard of any State . . . . 

In this instance, the administration is relying on subsections (2) and (3) in section 12406, concluding that what’s happening in Portland is a “rebellion against the authority of” the federal government and that DHS cannot carry out federal immigration law “with the regular forces”, i.e., DHS officers and agents. 

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, where it was assigned to Judge Karin Immergut.

And on October 4, she issued a temporary restraining order (TRO) enjoining the ordered National Guard deployment. 

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.

The two judges in the majority in the Ninth Circuit’s October 20 order concluded, among other things, that Judge Immergut had erred in limiting the temporal scope of her review of the facts on the ground in Portland, without also examining what’s been happening there since June — reinforcing that this is a fact-driven case. 

“En Banc” Review

As the Legal Information Institute (LII) at Cornell Law School explains: 

En banc is French for “on the bench.” The term refers to a special procedure where all judges of a particular court hear a case. When the court believes that the matters are especially complex or important, the en banc procedure will be used. 

Almost immediately after the three-judge panel of the Ninth Circuit issued its order greenlighting Trump’s deployment of the National Guard to Portland, one (unnamed) judge of the circuit court sua sponte (on that judge’s own, without prompting from the parties) asked for a vote on whether the case should be reheard en banc. 

LII is correct that generally under en banc procedures, all the judges of the specific court hear the case again, but that’s not the rule in the Ninth Circuit, because there are 30 authorized judge positions (29 currently filled) there, just too many for a normal or orderly en banc review. 

That’s why chapter V of the General Orders of the Ninth Circuit distinguishes between the “full court” and the “en banc court”, the latter “that number of judges, greater than 3, established by rule of the Court, which shall hear and decide cases taken en banc as provided by statute, rule, or in these General Orders”.

Under the current rules: “An en banc panel in the Ninth Circuit consists of 11 randomly selected judges. The chief judge of the circuit presides over the hearing.”

That’s much more orderly to be sure, but let’s look at the 29 judges who are currently sitting on that court.

The chief is Judge Mary Murguia, and she was first appointed to the bench by President Obama in 2011 and subsequently named chief judge by President Biden in December 2021. 

Of the remaining 28 Ninth Circuit judges, three were Clinton administration appointees, three were tapped by George W. Bush, four were nominated by Obama, 10 got the nod during the first Trump administration (including the two in the October 20 majority), and eight were Biden’s appointees. 

That’s a split of 16 Democratic appointees and 13 Republican appointees (Trump nominee Eric Tung is currently awaiting confirmation in the Senate), meaning the judges voting on whether to rehear this case en banc will be slightly Democratic-appointee heavy, and if there’s a random drawing of lots to pick the 11-judge panel, it’s likely to turn out to be the same.

On October 22, DOJ submitted its brief, arguing that “en banc review of the panel’s decision is not warranted”, the same day the plaintiffs filed a brief arguing for en banc rehearing. That day, a “bipartisan” group of “former governors” also filed an amicus brief “respectfully requesting” the same. 

“This Administrative Order Expresses No Views on the Merits”

Pending a decision on whether 11 Ninth Circuit judges will rehear this case, the October 20 panel order allowing Trump to send National Guard troops to Portland is on hold – and an upvote on rehearing would extend that hold indefinitely. The parties are likely already drafting their submissions to the Supreme Court, because that’s where this matter is likely headed.

In his October 24 administrative stay order, Senior Judge Sidney Thomas – en banc coordinator and Chief Judge Murguia’s predecessor – explained his order putting a Portland National Guard deployment on hold “expresses no views on the merits of this matter”. If true, he’s one of a select few without an opinion about this case. If they could just agree on the facts, we’d be getting somewhere.