On Monday, a majority of a 3-judge panel of the U.S. Court of Appeals for the 9th Circuit ruled that the Trump administration can send members of the National Guard to Portland.
The immediate impact of the ruling, however, is unclear. The Ninth Circuit’s decision only applies to one of the two temporary restraining orders U.S. District Court Judge Karin Immergut issued earlier this month, blocking deployments both from Oregon and from any other state.
Writing for the majority, Judges Ryan Nelson and Bridget Bade said that both of Judge Immergut’s restraining orders “rise or fall together” because they’re based on the same legal reasoning. In a dissent, Judge Susan Graber disagreed and said the Trump administration did not challenge the second restraining order, which therefore remains in effect.
Oregon Gov. Tina Kotek, Attorney General Dan Rayfield and Portland Mayor Keith Wilson responded to the ruling in a joint statement and called for a hearing before the full Ninth Circuit. “Oregon remains united in the fight against this unwanted, unneeded military intervention in Oregon,” Gov. Kotek wrote.
Last week, a federal appeals court upheld an Illinois district court’s ruling that blocked the deployment of the National Guard to Chicago. The Trump administration filed an emergency appeal to the U.S. Supreme Court to allow the National Guard deployment in Chicago.
Joining us for a legal analysis of the Ninth Circuit’s ruling is Jessica Levinson, clinical professor of law at Loyola Law School in Los Angeles.
Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. Twelve days ago, a three-judge panel of the Ninth Circuit Court of Appeals held a hearing of great interest to Portlanders and Oregonians more broadly. The specific question in front of the judges was whether or not they should get rid of a temporary restraining order that prevented the deployment of federalized members of the Oregon National Guard in Portland. Yesterday, a two-judge majority ruled ending that temporary restraining order that would seemingly pave the way for the deployment of those troops. But it’s not that simple because there was a second temporary restraining order and because the state of Oregon has asked for the full Ninth Circuit to consider the case.
Jessica Levinson joins us to talk about all of this. She’s a professor of law at Loyola Law School in Los Angeles. Welcome to Think Out Loud.
Jessica Levinson: Great to be here.
Miller: I want to start with a very practical question that I thought I would have an answer to when the Ninth Circuit Court of Appeals releases its ruling. But I feel like I honestly don’t. Does yesterday’s ruling change anything on the ground in Portland today?
Levinson: I’m a lawyer, so I’m gonna give you an it-depends answer here. Yes, I too thought that we were going to get a thumbs up or a thumbs down. And it depends on whether or not, I believe, you agree with the majority in this 2-to-1 decision, or if you agree with the dissent. What the dissent is saying here is that because there were, as you described, two temporary restraining orders, the second that the district court judge had implemented – again, telling the president, do not deploy any federalized members of the National Guard into Oregon – that that second supersedes. Yesterday, when they pushed pause on the first temporary restraining order, that that, in effect, had no effect.
We’re well into the weeds on the first question here, but what I would say is we need to look to see what happens next in the district court judge’s courtroom. So the Trump administration has gone to the district court judge, Judge Immergut, and essentially asked her to dissolve that second temporary restraining order insofar as it’s nothing but duplicative of the first temporary restraining order. I believe that she will probably do that. And then this particular decision from the Ninth Circuit will take effect.
Miller: So the language here is important. The two-judge majority wrote this in their decision yesterday: “The district court,” meaning Judge Immergut, “stated that it granted the second TRO based on the same legal reasoning it provided in its order issuing the first TRO.”“Defendants,” meaning the federal government, “are thus correct that the first TRO and the second TRO rise or fall together on the merits of the issues raised in this motion for a stay pending appeal.”
As I understand that, in super non-legalese, the majority says, we agree that the reasoning is the same for these two orders. And so since we say that the first one, the only one that we were asked to truly consider, it shouldn’t stand. Neither should the second. But is that language binding? I mean, is that an order to Judge Immergut for her to get rid of the second, or is it that we suggest you do so?
Levinson: Well, I think what they’re saying is exactly what you said. I highlighted that particular passage as well, and what they’re saying here is that Judge Immergut, you’ve got no room. We’re telling you to dissolve the first one. The second one, meaning the second temporary restraining order, is based on the same reasoning. You said that yourself. The parties said that themselves in your courtroom. So essentially, if you feel like you need to do more, go ahead and dissolve that second temporary restraining order.
It is possible that you could have Judge Immergut say, “No, I don’t want to.” And then that particular case could go back up to the Ninth Circuit. I don’t think we will see that. And if we could, maybe recapping why there are two temporary restraining orders might help people. First, Judge Immergut said [she didn’t] think the facts on the ground gave the President of the United States the authority under the applicable statute, this piece of legislation, to federalize the National Guard in Oregon. What the Trump administration did in the next day was say, well, OK, we have federalized members of the National Guard in California and Texas. So we’ll just send them into Oregon.
There was then a very quick emergency hearing on a Sunday night and Judge Immergut then issued her second temporary restraining order saying, I told you no yesterday and I’m saying no again today, in broader terms. Now it doesn’t deploy any federalized members of the National Guard from any state into Oregon. So the question really is about whether or not the second TRO needs to be dissolved before you can push pause on the first.
Miller: OK, but it’s your assumption that Judge Immergut will follow the appeals court’s direction and …
Levinson: Strong direction.
Miller: … strong direction and strike her second TRO as well. So let’s get to the meat of this. We jumped into a very important set of details here about what it would take for this order to actually lead to the deployment of troops. So we haven’t really yet heard about the reasoning for that. The two Appeals Court judges ruled in their majority decision that “it is likely that the president lawfully exercised his statutory authority, which authorizes the federalization of the National Guard when” – and this is the quote is from statute – “the president is unable, with the regular forces, to execute the laws of the United States.” What was their reasoning that that actually was the case, that the president was unable to execute the laws of the United States?
Levinson: Yes, it’s all about one word: deference. And if we could back up for a moment, this case as you correctly identified, rises and falls on this one statute. We all refer to it as by its Code Section 12-406. It says the president has the authority to federalize the National Guard in three different circumstances. And the Ninth Circuit, you’ve pointed out the third one, where there was a lot of discussion – there was actually discussion of two of those three.
The first is whether or not there’s been an invasion by a foreign country. That is not on the table. The second is whether there’s the rebellion or the danger of a rebellion. That is on the table and the Trump administration has invoked it. The third, as you pointed out, is whether the president is able to execute federal law through the “regular forces.”
So what this really all comes down to is basically a few questions. One, do judges get to look at a president’s decision at all. The Trump administration has said this is a political question. Don’t review my conclusions. The second is, if you can review, which judges have been concluding that they can, then what level of deference do you give the president? And the answer for the Ninth Circuit yesterday, at least two of the three members, was that we give you a ton of deference. They’re looking at the statute and they’re looking at it as a really broad grant of authority to the president. And what they thought Judge Immergut did not do was give the president enough deference. They felt that Judge Immergut, I think there was a quote, that she inappropriately substituted her own judgment for the judgment of the president. And that’s really what the disagreement between the majority of the Ninth Circuit and the District Court judge was about: how much deference do you give?
Miller: Do you see this as a question about legal questions or about factual questions? I mean, because Karin Immergut, relying on very quiet protests in the month leading up to Pete Hegseth’s announcement, said that the president was able to execute the laws of the United States. And obviously, as we were talking, the two-judge majority on this Appeals Court, relying on the administration’s statements, came to the opposite conclusion. I’m trying to figure out if this is about a difference of opinion about facts or a difference of opinion about law, because they seem very different?
Levinson: That’s a great question. And I would say it’s all tangled up. In the sense that this is what judges do a lot of times. They look at a statute and figure out whether or not, based on facts in different situations, that statute is satisfied. And they’re trying to figure out what rebellion means and who gets to decide. Who gets to decide is a huge part of these cases. So you’re absolutely right that there’s a factual determination here. And we’re looking at who gets to make the call. The Trump administration is saying the facts on the ground are sufficient.
Now, it doesn’t have to be that there is a huge protest or a huge riot. It can be looking at a big swath of time and maybe a big swath of geographic space that we think that we need help executing federal law. And what Judge Immergut said is essentially, I’m looking at the same statute and I get to look to see whether or not you have a colorable argument that those parts of the statute are satisfied. So you’re exactly right that we’re looking at fact finding. And we’re looking at who gets to make the initial decision – that’s the president – and then how much do we second guess the president.
Miller: The dissenting judge on the Ninth Circuit and now the state of Oregon have both asked for an en banc review. What does that mean?
Levinson: I’m not going to weigh in on pronunciation here because every French teacher I’ve ever had would ask that I not. But when we’re thinking about this, we mean we want more judges to weigh in. So “en banc” means that for the Ninth Circuit, we would get about 11 judges who would rehear this. And part of the idea is that the Ninth Circuit generally leans more to the left – not always, as we’ve seen. But this particular panel, there were two members who were appointed by President Trump and one member appointed by President Clinton. She was in the dissent here, Judge Graber.
And part of the idea, I think, behind wanting more judges to hear it, is that there might be more judges with different judicial philosophies as well. So the hope, by those asking for a rehearing, is that they would come to a different conclusion and find that the temporary restraining order should remain in place.
Miller: If the two-panel ruling does stand, does this effectively lower the bar for the deployment of troops, the military, to American cities?
Levinson: So this is another great question. I do want to emphasize we’re talking about the federalization of the National Guard, but not suspending something called posse comitatus, which would allow the National Guard to directly enforce civilian law. That still is a separate question and a separate law.
But in terms of [whether] this lowers the bar, I’ll answer it this way. We’re talking about a statute that is rarely used and therefore rarely challenged. Therefore, we have few cases on this particular statute, and what satisfies it and what doesn’t. So every time we get a decision, even if it’s an interim decision, like you are going to stay a temporary or a pending appeal, every time we get a decision, we’re getting persuasive guidance for judges to look next time to see, well, what did this panel on the Ninth Circuit say? What did that panel find was permissible? So it is setting precedent in that sense.
Miller: Jessica Levinson, thanks very much.
Levinson: Thank you.
Miller: Jessica Levinson is a professor of law at Loyola Law School in Los Angeles.
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