Federal agents confront protesters outside the U.S. Immigration and Customs Enforcement building on September 28, 2025, in Portland, Oregon.
Matthew Louis Laurent | Getty Images
A federal appeals court said Monday that President Donald Trump may send the National Guard to the streets of Portland, Oregon.
The 2-1 ruling by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit left in place a temporary restraining order issued by a U.S. District Court judge on Oct. 4 mandating President Trump’s order to incorporate 200 members of the Oregon National Guard to protect an Immigration and Customs Enforcement facility in Portland.
“After reviewing this preliminary record, we conclude that the President likely lawfully exercised his statutory authority under the Act, which authorizes the federalization of the National Guard when the President is unable to enforce the laws of the United States with a regular military force,” the panel majority said in Monday’s order.
The order detailed multiple instances in which protesters disrupted operations at ICE facilities.
Majority justices Ryan Nelson and Bridget Baid were appointed by President Trump to serve on the Ninth Circuit.
In a written dissent, the dissenter, Justice Susan Graeber, an appointee of former President Bill Clinton, urged the other judges on the Ninth Circuit to “act quickly to overturn the majority’s order because of the potential for unlawful deployment of troops under false pretenses.”
Graeber wrote that despite President Trump’s Sept. 27 social media post calling Portland “war-torn,” there is no evidence in court records that ICE was unable to protect Portland facilities or enforce immigration laws.
“But in the statute invoked here, Congress authorized the president to call up the National Guard only to repel foreign invasion, suppress insurrection, or overcome circumstances where the law cannot be enforced,” Garber wrote.
“As a result, there was no legal or factual justification to support the order to federalize and deploy the Oregon National Guard.”
“We have come to expect political theater in the political sector, plays designed to rally supporters or infuriate and intimidate political opponents,” Graeber concluded.
“We may also expect some amount of truth-bending, and sometimes even breaking. By the intent of our founders, the judicial branch is independent,” she wrote. “We base our decisions on facts, not on assumptions and speculation. We certainly do not base our decisions on fabrications or propaganda.”
