The appeals court on Friday paused any order allowing troop deployment until the 29 judges of the court decide if a “full court” review of an earlier decision is warranted
By Alex Baumhardt, Oregon Capital Chronicle
No National Guard troops can be sent to Portland before Tuesday evening, until all active judges on the 9th Circuit Court of Appeals decide whether to review a 2-1 decision made earlier this week that greenlit Trump’s ability to federalize the Oregon National Guard and deploy 200 troops to Portland.
The court late Friday afternoon paused any order allowing troop deployment until the 29 judges of the 9th Circuit — representing nine states and two territories — have finished voting on whether an “en banc” or “full court” review is warranted of a decision made Monday by two Trump-appointed appellate judges.
In their majority opinion issued Monday, appellate judges Ryan Nelson and Bridget Bade in essence handed the president unlimited power to call up National Guard troops whenever there is interference with federal functions, ruling that courts must defer to the president’s judgement and that it’s not up for judicial review.
The news that the Guard deployment would be administratively blocked by the 9th Circuit came hours after a U.S. District Court in Portland, Judge Karin Immergut, held a hearing to decide whether that 9th Circuit ruling on Monday voided one or both of the temporary restraining orders she has issued since early October barring National Guard deployment to Portland.
Immergut said Friday afternoon that she would have a decision “by Monday, if not before.” It’s likely the late Friday announcement from the higher court will delay any decision she makes.
Willamette University professor Norman Williams, a constitutional law expert, said the 9th Circuit rarely grants such fuller reviews, but Oregon has made a compelling case that the decision by Bade and Nelson was inconsistent with other court precedent. Granting a review would set off what would likely be several weeks of hearings and decision-making that would delay Oregon’s trial against the federal government that is scheduled to begin in U.S. District Court in Portland on Wednesday.
If the majority of the 29 agree to grant the review, they’ll immediately void Nelson and Bade’s decision and 11 judges of the court would be assigned to the review case. Ten would be selected at random and one would be the chief judge on the 9th Circuit: Mary Helen Murguia, previously a U.S. District Court Judge in Arizona appointed by former President Bill Clinton. Former President Barack Obama appointed Murguia to the 9th Circuit.
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.
