The Mark O. Hatfield United States Courthouse on Friday, Oct. 3 in Portland Ore.
Saskia Hatvany / OPB
The Trump administration asked a federal appeals court late Sunday to immediately place a hold on a court ruling preventing the president from sending National Guard troops to a U.S. Immigration and Customs Enforcement facility in Portland.
On Nov. 7, U.S. District Court Judge Karin Immergut issued a 106-page permanent injunction that prevented the action and would return control of 200 Oregon National Guard members to state control by Friday.
In an emergency motion filed Sunday with the United States Court of Appeals for the 9th Circuit, attorneys for the U.S. Department of Justice said Immergut’s order effectively second-guessed military judgements by the commander in chief, “something district courts lack the authority and competence to do.”
Federal law allows the president to federalize the National Guard under certain circumstances, such as an inability to execute the law using regular forces, a foreign invasion, or in cases of a rebellion or threat of one.
“The President’s determination was plainly lawful,” attorneys for the Trump administration argued. “The district court nonetheless issued a permanent injunction barring federalization and deployment of the Oregon National Guard or Guardsmen from any other state to Portland.”
The arguments were strikingly similar to arguments Justice Department lawyers have made since October in a long running legal dispute over federalized National Guard members. Attorneys for the government also argued Immergut “wrongly downplayed” the conditions outside the ICE facility in Portland.
“The court acknowledged large-scale violent protests in June, but treated them as irrelevant to the President’s determination just a few months later,” they argued.
The Trump administration’s appeal came the same weekend it became clear the number of National Guard troops in cities like Portland and Chicago will be declining.
U.S. Northern Command, which oversees the federalized Oregon National Guard troops, announced Nov. 14 it would be “rightsizing our Title 10 footprint in Portland, Los Angeles and Chicago to ensure a constant, enduring, and long-term presence in each city.” Several sources confirmed to OPB that the roughly 200 federalized California National Guard troops the Trump administration sent to Oregon at the beginning of last month would return to their home state.
This story may be updated.