A majority of the judges on the 9th Circuit Court of Appeals agreed to review, and possibly void, a recent decision to allow the deployment

By Alex Baumhardt, Oregon Capital Chronicle

A majority of judges on a federal appeals court want to review for errors a decision made by two of their peers greenlighting National Guard deployment to Portland.

This means there will be no troop deployment until their review is complete, and such reviews typically take several weeks or more.

At least 15 of the 29 judges of the 9th Circuit Court of Appeals on Tuesday voted to grant lawyers for the state of Oregon an “en banc” or “full court” review of an Oct. 20 order that came from two of the circuit’s judges, Trump appointees Ryan Nelson and Bridget Bade. That decision overruled a lower court order that had been blocking President Donald Trump from deploying National Guard troops to Portland.

The appeals court’s decision to grant Oregon the review comes on the eve of the three-day trial in the state’s expedited court case against Trump, Defense Secretary Pete Hegseth and Homeland Security Secretary Kristi Noem, which is scheduled to begin Wednesday in U.S. District Court in Portland. It’s possible the judge presiding over that case will delay trial until the appeals court completes its review.

Such intra-court reviews of 9th Circuit decisions are extremely rare — granted to about one to three cases per year among the hundreds that 9th Circuit judges across nine states and two territories handle, according to Willamette University professor Norman Williams, a constitutional law expert.

Typically, reviewing a case leads to reversing the smaller panel’s decision, Williams said, because by the time the majority of judges agree to review a case it’s quite clear something is wrong.

Oregon’s Attorney General Dan Rayfield said in a statement following the decision that the court is “sending a clear message.”

“This ruling shows the truth matters and that the courts are working to hold this administration accountable. The Constitution limits the president’s power, and Oregon’s communities cannot be treated as a training ground for unchecked federal authority,” he said.

Eleven judges, including Chief Judge Mary Helen Murguia, an Obama appointee, will undertake the review. State attorneys general from Arizona, California, Hawaii, Nevada and Washington, as well as the American Civil Liberties Union, submitted briefs in support of Oregon’s petition.

The attorneys general wrote that in the last 233 years, presidents have relied on federal laws that allowed them to deploy National Guard troops to U.S. cities roughly 30 times. Four of those 30 have been by Trump in the last five months.

The main argument for a fuller review is that a panel of judges has misapplied precedent set by earlier court decisions. The review panel will consider whether Bade and Nelson misapplied precedent set in Newsom v. Trump, a similar case decided a few months ago.

Precedent

Trump federalized and deployed California National Guard troops to protect federal property in Los Angeles on June 7 in the face of protests against Immigration and Customs Enforcement facilities and officers.

In response, California Gov. Gavin Newsom sued and asked a federal judge to block the troop deployment until the case could go to trial. The judge agreed to temporarily block the deployment, the federal government appealed, and three judges on the 9th Circuit Court — two of whom were appointed by Trump — overruled the lower judge and allowed the deployment to move forward.

Although the Newsom case handed the president broad power to deploy Guard troops to American cities, it did establish several standards that Oregon’s lawyers contend were not met in Bade’s and Nelson’s decision when they decided Trump was within his power to deploy Guard to Portland.

Among them are temporal and geographic limitations — Bade and Nelson argued Trump was allowed to deploy troops to Portland in September over concerns about an Immigration and Customs Enforcement facility in south Portland because of heightened protests that occurred in June and July. The two judges also said that attacks on ICE buildings in Los Angeles and Dallas justify deployment in Portland. Precedent in the California case refutes this, Oregon’s lawyers argue.

The judges in the California case also affirmed that there must be more than “minimal interference” with federal functions and federal property to justify Guard deployment.

Oregon’s lawyers argue that First Amendment-protected protest activity outside the Portland ICE facility has been sporadic and small, and that unlawful conduct has been handled by local law enforcement.

“If that justifies federalizing the National Guard, then almost anything would,” they wrote in their petition for review. “This case thus presents an opportunity for the en banc Court to resolve lingering conflicts of law in this area and decide whether a federalization order can ever be subject to meaningful judicial review.”

The judges in Newsom established that the president is owed “a great level of deference” in their decision to deploy troops to American cities, and that the court is allowed to determine whether the president’s decision “reflects a colorable assessment of the facts and law within a range of honest judgment.”

Oregon’s lawyers argue that Bade and Nelson disregarded a lower court judge’s determination that there was no active rebellion or major threat to federal property and officials in Portland and instead deferred entirely to information submitted by federal lawyers.

Oregon’s lawyers recently found that those federal lawyers overstated the law enforcement needs at the Portland ICE facility during the summer.

Federal lawyers claimed that 115 Federal Protective Service officers — 25% of the force — had to be sent to Portland to protect the ICE building during the summer. Data that Oregon’s lawyers received via evidence requests shows that no more than 31 federal police were sent to the Portland ICE facility during any given month over the summer, and that 25% of the federal police force was never deployed.

Alex Baumhardt has been a national radio producer focusing on education for American Public Media since 2017. She has reported from the Arctic to the Antarctic for national and international media, and from Minnesota and Oregon for The Washington Post. This story first appeared in the Oregon Capital Chronicle.