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Lawyers for President Donald Trump and the state of Oregon clashed Thursday before the 9th Circuit Court of Appeals over Trump’s push to deploy National Guard troops to Portland, a high-stakes showdown marked by sharp accusations that the president’s actions were unlawful and unnecessary.
A three-judge panel, composed of two Trump appointees and one Clinton appointee, seemed deeply skeptical of the case made by Oregon Assistant Attorney General Stacy Chaffin, including her assertion that Trump’s descriptions of the violence in Portland were hyperbolic and “untethered from reality.”
Judges sharply questioned Chaffin about the specifics of the protests in Portland. Many of them focused on specifics, including dates of protests and number of arrests, in asking why — in the state’s view — these conditions failed to meet the standard needed to justify Trump’s deployment of the National Guard.
“I’m not sure even President Lincoln would have been able to authorize the use of force right now” if his actions were to be scrutinized under the “much more stringent reviewability standard” implied by Oregon here, Judge Ryan Nelson, a Trump appointee, interjected loudly, one of several times he cut off Chaffin as she attempted to answer the court’s questions.
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Chaffin argued that the protests in Portland are a far cry from a definition of a “rebellion,” one of two conditions Trump needs to satisfy to meet the legal pretext for National Guard deployment.
The 9th Circuit Court agreed to take up the Trump administration’s request to hear the case just days after a federal judge in Oregon issued a temporary restraining order halting the president from immediately sending Oregon National Guard troops to the city of Portland, describing the action as one that risks “blurring the line between civil and military federal power — to the detriment of this nation.”
Rebellions “are unusual and extreme emergencies,” Chaffin said, noting that the bulk of agents’ complaints on record are focused instead on them being short-staffed. Administrative difficulties “are not a reason to bring the military into the streets of Portland or any other U.S. city,” Chaffin added.
Still, the court’s two Trump appointees took a much more critical view of the state’s case during oral arguments, which lasted roughly 90 minutes.
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Justice Department attorney Eric D. McArthur, meanwhile, spent the bulk of time reiterating the two tenets of the Trump administration’s core arguments in deploying National Guard troops. The first is that there is a threat of “rebellion” underway, and the second is that the federal government cannot carry out the law without the help of the National Guard.
McArthur argued that Portland meets the criteria of an “active threat,” regardless of the weeks that passed between Trump’s June memo authorizing the federalization of National Guard troops and his September attempt to deploy the Oregon National Guard to Portland.
Asked by the Clinton-appointed Judge Susan Graber whether Trump could hypothetically rely on any violent event that “post-dates” the administration’s National Guard mobilization to justify its deployment, McArthur said yes.
“I think we can rely on later evidence to show there was a colorable factual basis for the president’s determination,” he told judges for the 9th Circuit.
“It demonstrates the very kind of risk that can materialize at any time with this sort of violent crowd.”
The court did not specify when it planned to issue a ruling. In the meantime, dozens of National Guard troops — roughly 200, as lawyers testified Thursday — remain just outside the city’s limits, pending possible deployment.
The case is just one of several challenging Trump’s authority to federalize the National Guard over the objections of state and local leaders.
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