A federal judge Friday issued a permanent injunction barring President Donald Trump from deploying National Guard troops from any state to Oregon, finding the president exceeded his authority.
“Even giving great deference to the President’s determination, the President did not have a lawful basis to federalize the National Guard,” U.S. District Judge Karin J. Immergut ruled in a 106-page opinion.
Immergut’s injunction follows a three-day trial she held last week and a brief, preliminary order she issued on Monday.
Friday’s injunction offers a much more detailed examination of the law and conditions in Portland leading up to Trump’s Sept. 27 authorization of Guard members to protect the U.S. Immigration and Customs Enforcement building in the South Waterfront neighborhood amid nightly protests.
She found that Trump failed to meet the two criteria he used to invoke federal code to mobilize the National Guard: there was no danger of a rebellion against U.S. government authority, Immergut ruled, and officers have not been thwarted from executing federal law.
While violent protests did occur in June, they “quickly abated” due to the efforts of law enforcement officers and have remained predominantly peaceful with only isolated and sporadic instances of “relatively low-level” violence,” largely between protesters and counter-protesters, the judge wrote.
She also found that general federal agency staffing problems are “minimally impeding” ICE’s enforcement of immigration law.
Immergut, who was appointed to the federal bench by Trump during his first term and confirmed by the U.S. Senate in July 2019, made clear that her ruling does not mean the president can never deploy the National Guard to Oregon or any other location “if conditions on the ground justify the Guard’s intervention.”
She also said she expects a higher court to decide the “precise standard” by which to determine the conditions that would satisfy sending military troops to the streets of American cities.
Immergut found Trump’s mobilization of Guard members to the state violated both federal law and the 10th Amendment, which reserves powers to states that are not expressly given to the federal government in the U.S. Constitution.
“This Court acknowledges that some citizens may support these deployments as a helpful military supplement to effectuate the President’s immigration agenda,” Immergut wrote.
But the nation’s founders “‘embodied their profound fear and distrust of military power . . . in the Constitution and its Amendments,’ … which has lived on through the decades as ‘a traditional and strong resistance of Americans to any military intrusion into civilian affairs,’‘’ her ruling said.
Immergut delved into historical traditions and concluded that when Congress enacted the Militia Act of 1792, it adopted a “common sense” understanding that calling up the militia would occur only when there was a failure of civil government to execute the laws of the U.S.
When Trump authorized the federalization of National Guard troops to Portland in late September, federal officers faced “minimal interference, if any” in their abilities to carry out federal laws, the judge wrote.
Immergut also found that the president’s mobilization of 200 California National Guard troops to Oregon and promised deployment of up to 400 Texas National Guard members to Oregon in early October was unlawful, ruling that those Guard members cannot enforce laws in other states that have no connection to the president’s initial justification for federalizing those soldiers.
The “intrusion” of out-of-state Guard members to Oregon represents an injury to Oregon’s sovereignty, the judge ruled.
Immergut allowed the status quo to continue, permitting the federalization of any state National Guard to remain in place but barring their deployment in Oregon. She only allowed the federalization of the Oregon National Guard to continue for another 14 days.
U.S. Department of Justice attorney Eric Hamilton signaled in court that the federal government would seek a hold, or stay, on the injunction while it appeals to the 9th U.S. Circuit Court of Appeals.
He wrote in a post-trial brief that a permanent injunction would be an unwarranted “drastic and extraordinary remedy,” and told the judge that if she issued an injunction, she should limit it to only prevent the deployment of troops based on the president’s Sept. 27 authorization for Oregon and not bar future federal deployments.
“President Trump has exercised his lawful authority to protect federal officers and assets,” said Abigail Jackson, White House spokesperson, in an email. ”President Trump will not turn a blind eye to the lawlessness plaguing American cities and we expect to be vindicated by a higher court.”
Oregon Attorney General Dan Rayfield called Immergut’s decision a “huge victory for Oregon,” and Gov. Tina Kotek renewed her call for Trump to “send all troops home now.”
“The courts are holding this administration accountable to the truth and the rule of law,” Rayfield said in a statement.
Kotek said: “This ruling, now the fourth of its kind, validates the facts on the ground. Oregon does not want or need military intervention, and President Trump’s attempts to federalize the guard is a gross abuse of power.”
Portland Mayor Keith Wilson said he expected the city and state will keep fighting in court “to ensure public safety, protect civil rights, and stand up for our immigrant community.”
Oregon’s U.S. Sen. Ron Wyden also applauded Immergut’s ruling, describing it as a “victory for Oregonians, for reality and the law.”
Late September authorization
In a late September post on his Truth Social profile, Trump authorized “all necessary Troops” to protect “War ravaged Portland,” and also promised “Full Force, if necessary,” at the request of Homeland Security Secretary Kristi Noem. He wrote that he was directing his defense secretary to have troops ready to protect “any of our ICE Facilities under siege from attack by Antifa and other domestic terrorists.”
The next day, Defense Secretary Pete Hegseth issued a memo mobilizing 200 Oregon National Guard troops to serve under federal control in Portland for 60 days at Portland’s ICE facility, the site of nightly protests since June.
Immergut granted an initial temporary restraining order on Oct. 4, blocking Oregon National Guard deployment to the city. Hours later, Hegseth mobilized 200 California National Guard to be deployed to Portland instead, and they arrived by air in Portland the next morning. Hegseth also called up another 200 Texas National Guard to be made available for deployments to Oregon and Illinois.
Immergut held an emergency hearing by phone on Oct. 5, a Sunday night, and granted a second broader temporary order that prevented Trump from sending National Guard from any state to Oregon under federal control.
The judge extended both temporary orders another 14 days. The initial order remains under appellate review. The broader one expired last Sunday night.
Lawyers for Oregon, California and Portland argued that the president’s authorization violated federal statute and the 10th Amendment, which protects a state’s sovereign interests. They urged the judge to permanently block the Trump administration’s Sept. 28 memo and related orders to federalize and deploy any Guard troops to Portland.
The state of California joined Oregon and Portland’s lawsuit after 200 California National Guard members were flown to Portland in an apparent attempt to get-around Immergut’s initial temporary order that only blocked Oregon National Guard.
Just before trial last week, Immergut learned that the federal government had sent 9 Oregon National Guard members to the ICE facility at 11:35 a.m. on Oct. 4 and they stayed until they completed their shift at midnight, seven hours after she issued her first order at 4:27 p.m. that barred their presence at the building.
She said she was “deeply troubled” by their continued deployment in violation of her order. She wrote that she was skeptical of the federal government’s explanation that it to took time to communicate her order through the chain of command to the Oregon Guard members, noting that the defense secretary “had time to coordinate the transport of federalized California National Guardsmen from Los Angeles to Portland.”
Immergut said she retains authority to find the government in contempt of her order, but will allow U.S. Justice Department lawyers to provide further explanation in court.
U.S. Department of Justice lawyers argued in trial that the district judge lacked authority to review Trump’s assessment.
They also argued that judge must give a “great deal of deference” to the president’s determination that he’s met at least two of the criteria required before he can federalize National Guard members under federal code’s Title 10, Sec. 12406: that there was a danger of a rebellion against U.S. government authority, and “regular officers” have been unable to execute federal law.
They said that rebellion includes the violent resistance to federal enforcement of immigration law and pointed to the one night that Portland police declared a riot at the ICE facility on June 14.
But Immergut said in Friday’s decision that Trump administration officials “ignore the nature” of the president’s power to federalize National Guard troops.
“It is not simply another tool in the executive’s federal law enforcement toolbox that he may pull out at any time to ‘take Care that the Laws be faithfully executed.’ It is the wielding of an entirely different kind of power, the military power, of which the Founders ‘always asserted and enforced the subordination . . . to the civil arm,’‘’ the ruling said.
She also found the conditions in Portland leading up to Trump’s federalization of troops in the city came nowhere near constituting a rebellion, which occurs when an “organized group engaged in sustained, armed hostilities for the purpose of overtaking an instrumentality of government by unlawful or antidemocratic means,” according to the decision.
The protesters outside the ICE facility were not organized nor were they “collectively armed,” she wrote.
“Although passing references to ‘Antifa’ ascribe ideology to a few protesters at the ICE facility, there is no evidence corroborating that ideology, or demonstrating leadership or differentiation among protesters based on this label,” Immergut wrote.
The judge also dismissed federal officials’ arguments that protesters creating “life-threatening dangers,” or doxxing federal officers posed a threat of rebellion.
“If a life-threatening danger to a federal officer alone created the risk of rebellion, then it would seem the President could call up the National Guard every day,“ Immergut wrote, adding that there was no evidence connecting a protester from outside the ICE facility to any doxxing posters circulated online.
She said federal officers, such as FBI and Homeland Security Investigation agents, encounter life-threatening dangers by trade.
“Defendants overstate the degree of physical danger they faced at the ICE facility,” Immergut wrote.
Protests have occasionally turned destructive, as on June 14, but have mostly remained mild. While Trump administration officials have portrayed them as regularly violent and threatening, Immergut found there was no credible evidence that protests grew beyond the control of law enforcement officers.
Portland police supervisors testified at trial that federal officers have used disparate and unnecessary force by firing tear gas, pepper balls and other less-lethal munitions against largely non-violent protesters after federal officers have pushed protesters away from obstructing the driveway.
They said the federal officers’ actions have inflamed tensions on the street, and said local police had spent nearly $900,000 in overtime costs between Oct. 1 and Oct. 20, shortly after Trump’s authorization of troops, to staff and monitor the protests.
Supervisors from the Federal Protective Service, National Guard and immigration enforcement countered that Portland police have failed to respond to violence outside the building, prompting them to “surge” officers to the property in an around-the-clock operation dubbed, “Operation Skip Jack Portland.”
Citing the trial evidence, Immergut found “just the opposite,” that Portland police policies allowed local officers to be a “helpful partner” in addressing crime that occurred during the protests.
Now What
Kotek noted that the Oregon National Guard members who were called into federal service have been away from their family for 38 days and urged the president to allow them to return home.
Even if there’s a hold placed on Immergut’s decision, an 11-judge panel of the 9th Circuit already assigned to review her earlier temporary restraining order ordered that the status quo be maintained for now – meaning the Guard members could remain federalized but not deployed to the ICE building.
If the federal government seeks a stay, or hold, on Immergut’s latest decision, it’s entirely up to the 9th Circuit to decide whether that request would be heard by a new three-judge panel of the court or the en banc group of 11 judges formed to review the legality of Immergut’s first temporary restraining order, lawyers say.
“It’s almost impossible to know,” said Jeff Feldman, a law professor and co-director of the Ninth Circuit Appellate Advocacy Clinic at the University of Washington School of Law. “The normal process would be to assign a new panel, but this is not a normal case and the court has discretion as to how to handle it. I think we all have to stand by and see what the court does.”
Meanwhile, the federal Justice Department earlier this week asked the appeals court to dismiss its appeal of Immergut’s initial temporary restraining order.
The Justice Department indicated to the court that the state of Oregon objects to the dismissal of the federal government’s appeal, which is not typical.
But Feldman said to consider the matter like this: “Do you dismiss an appeal you think you are going to win? Flip the coin, would you oppose dismissal of the appeal if you thought you were going to lose?”
He added, “Given that the government is continuing its efforts to put military troops in U.S. cities, there would be value to obtaining a decision by the Ninth Circuit, which would provide guidance to the district courts and establish a helpful precedent.”
Meanwhile, pending in the backdrop is an Illinois case before the U.S. Supreme Court that could directly impact Oregon’s legal challenge.
The Supreme Court is not anticipated to issue a ruling on whether to put an emergency hold on an Illinois federal judge’s temporary restraining order preventing the deployment of National Guard to Chicago until it receives additional briefs by Nov. 17.
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