A U.S. appeals court has permitted the Trump administration to deploy Oregon National Guard members to Portland in a 2-1 decision.
“After considering the record at this preliminary stage, we conclude that it is likely that the President lawfully exercised his statutory authority under 10 U.S.C. § 12406(3), which authorizes the federalization of the National Guard when ‘the President is unable with the regular forces to execute the laws of the United States,'” the judges wrote.
“We thus conclude that Defendants are likely to succeed on the merits of their appeal, and that the other stay factors weigh in their favor. We grant Defendants’ motion for a stay pending appeal,” the decision added.
“Even if the President may exaggerate the extent of the problem on social media, this does not change that other facts provide a colorable basis to support the statutory requirements,” the panel explained.
Judge Susan Graber, a Clinton appointee, wrote in a dissenting opinion that the characterization of Portland as a “war zone” is “merely absurd.”
“But today’s decision is not merely absurd. It erodes core constitutional principles, including sovereign States’ control over their States’ militias and the people’s First Amendment rights to assemble and to object to the government’s policies and actions,” Graber wrote.
The Justice Department argued in an October 5 court filing that an order blocking the National Guard “improperly impinges on the Commander in Chief’s supervision of military operations, countermands a military directive to officers in the field, and endangers federal personnel and property.”
