The federal government will not be able to deploy any Oregon National Guard troops to Portland, at least until Tuesday.
That’s because the 9th U.S. Circuit Court of Appeals late Friday put a temporary hold until then on a three-judge panel’s ruling that had opened the door for the federal deployment of Oregon troops to the city.
The 9th Circuit granted the hold, or administrative stay, on the panel’s ruling that had blocked U.S. District Judge Karin J. Immergut’s temporary restraining order barring the federal control of Oregon National Guard troops in Portland.
The panel’s ruling is on hold until 5 p.m. Tuesday to allow the full 9th Circuit to determine if it will hold a vote to review the 2-1 split ruling.
“This administrative order expresses no views on the merits of this matter and is not a reconsideration of the earlier stay order,” wrote Senior Circuit Judge Sidney R. Thomas in a brief administrative order.
Thomas serves as the court’s coordinator for so-called en banc reviews, which are reviews of rulings by a larger contingent, or 11 judges, of the 29-active member court. He previously served as chief judge of the 9th Circuit from 2014 to 2021.
Oregon Attorney General Dan Rayfield praised the pause.
“This decision gives the court time to fully consider the serious constitutional questions at stake,” he said in a statement.
“It also ensures there won’t be a federal deployment while that process plays out — an important step in protecting Oregonians’ rights and keeping our communities safe,” Rayfield said.
Tung Yin, a Lewis and Clark Law School professor, said the administrative hold essentially keeps Immergut’s Oct. 4 temporary restraining order in place, at least until Tuesday, to allow the judges of the 9th Circuit to vote whether to reconsider the three-judge panel’s decision.
On Monday, the majority of the three-judge panel found that the president is due significant deference and that his decision to mobilize only 200 Oregon National Guard members for 60 days to Portland was a “measured response.”
The two Trump-nominated judges on the panel, Bridget S. Bade and Ryan D. Nelson, found that the federal government is likely to succeed in its argument that the federal government is unable with “regular forces” to execute the laws of the U.S. as a result of protests outside the U.S. Immigration and Customs Enforcement building in Portland, one of the criteria required for the president to obtain control of Oregon National Guard troops.
The majority also criticized Immergut for restricting her assessment of the conditions outside Portland’s ICE facility to a limited time leading up to Trump’s Sept. 27 authorization of Guard members, saying the plain text of federal law contained “no such limitations.”
The dissenting judge, Susan P. Graber, urged her colleagues to review and reverse the majority’s decision. She not only urged an immediate review of the majority’s decision by her colleagues on the 9th Circuit, but also urged those “watching this case unfold” to “retain faith in our judicial system for just a little longer.”
The 9th Circuit’s administrative hold followed a hearing earlier Friday as Immergut considered a motion by the federal government to throw out her second broader restraining order that she issued on Oct. 5 barring the federal deployment of any National Guard troops from any state to Oregon.
Immergut said she planned to rule on the motion regarding her broader temporary restraining order no later than Monday, yet the 9th Circuit’s latest move may delay Immergut’s self-imposed deadline.
The appellate court’s administrative hold through 5 p.m. Tuesday runs right up to Immergut’s scheduled three-day trial set to start Wednesday morning on the underlying merits of the state of Oregon and City of Portland’s lawsuit challenging the federalization of any state National Guard troops in Oregon.
The back-and-forth legal maneuvering over the validity of Immergut’s temporary restraining orders may ultimately become moot as Immergut prepares to preside over a trial to issue a judgment on the merits of the case, said Jeff Feldman, co-director of the Ninth Circuit Appellate Advocacy Clinic at the University of Washington School of Law.
Yin said he wondered if the 9th Circuit’s decision to keep Immergut’s temporary restraining order in place until late Tuesday, the eve of trial, is a “signal that a majority” of the appellate court wants the case to run its course at the district court level with a final judgment allowing for a regular appeal.
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