US appeals court says Trump can take command of Oregon troops though
deployment blocked for now
[October 21, 2025]
By CLAIRE RUSH and GENE JOHNSON
PORTLAND, Ore. (AP) — An appeals court on Monday put on hold a
lower-court ruling that kept President Donald Trump from taking command
of 200 Oregon National Guard troops. However, Trump is still barred from
actually deploying those troops, at least for now.
U.S. District Judge Karin Immergut, a Trump appointee, issued two
temporary restraining orders early this month — one that prohibited
Trump from calling up the troops so he could send them to Portland, and
another that prohibited him from sending any National Guard members to
Oregon at all, after the president tried to evade the first order by
deploying California troops instead.
The Justice Department appealed the first order, and in a 2-1 ruling
Monday, a panel from the 9th U.S. Circuit Court of Appeals sided with
the administration. The majority said the president was likely to
succeed on his claim that he had the authority to federalize the troops
based on a determination he was unable to enforce the laws without them.
However, Immergut’s second order remains in effect, so no troops may
immediately be deployed.
The administration has said that because the legal reasoning
underpinning both temporary restraining orders was the same, the second
one was also invalid, and the majority opinion also said the two TROs
“rise or fall together.”
Soon after the ruling Monday, the Justice Department asked Immergut to
immediately dissolve her second order, which would allow Trump to deploy
troops to Portland. The Justice Department argued that it is not the
role of the courts to second-guess the president’s determination about
when to deploy troops.
“The Ninth Circuit’s decision staying the first TRO is a significant
change in law that plainly warrants dissolution of this Court’s second
TRO,” the administration's lawyers wrote.
Oregon Attorney General Dan Rayfield, a Democrat, said he would ask for
a broader panel of the appeals to reconsider the decision.
“Today’s ruling, if allowed to stand, would give the president
unilateral power to put Oregon soldiers on our streets with almost no
justification," Rayfield said. “We are on a dangerous path in America.”
The Justice Department did not return an email seeking comment.Trump's
efforts to deploy National Guard troops in Democratic-led cities have
been mired in legal challenges. A judge in California ruled that his
deployment of thousands of National Guard troops in Los Angeles violated
the Posse Comitatus Act, a longstanding law that generally prohibits the
use of the military for civilian policing, and the administration on
Friday asked the U.S. Supreme Court to allow the deployment of National
Guard troops in the Chicago area.
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People wearing costumes protest outside a U.S. Immigration and
Customs Enforcement facility, at right, on Saturday, Oct. 11, 2025,
in Portland, Ore. (AP Photo/Jenny Kane)
Mostly small nightly protests, limited to a single block, have been
occurring since June outside the U.S. Immigration and Customs
Enforcement building in Portland. Larger crowds, including
counterprotesters and live-streamers, have shown up at times, and
federal agents have used tear gas to disperse the demonstrators.
The administration has said the troops are needed to protect federal
property from protesters, and that having to send extra Department
of Homeland Security agents to help guard the property meant they
were not enforcing immigration laws elsewhere.
Immergut previously rejected the administration's arguments, saying
the president’s claims about Portland being war-torn are “simply
untethered to the facts.” But the appeals court majority — Ryan
Nelson and Bridget Bade, both Trump appointees — said the
president's decision was owed more deference.
Bade wrote that the facts appeared to support Trump's decision “even
if the President may exaggerate the extent of the problem on social
media.”
Judge Susan Graber, an appointee of former President Bill Clinton
appointee, dissented. She urged her colleagues on the 9th Circuit to
“to vacate the majority’s order before the illegal deployment of
troops under false pretenses can occur.”
“In the two weeks leading up to the President’s September 27 social
media post, there had not been a single incident of protesters’
disrupting the execution of the laws,” Graber wrote. “It is hard to
understand how a tiny protest causing no disruptions could possibly
satisfy the standard that the President is unable to execute the
laws.”
___
Johnson reported from Seattle.
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