Oregon Army National Guard Soldiers with Company G, 1st Battalion, 189th Aviation Regiment, March 4, 2018 in Salem, Oregon.
Sgt. 1st Class April Davis / Oregon Military Department Public Affairs
Oregon National Guard troops can remain under federal control – but can’t yet be deployed in Portland – under an order issued by a panel of federal appeals court judges.
In a ruling issued Wednesday afternoon, the three-judge panel stayed an order barring President Trump from bringing 200 Oregon National Guard troops under federal control and sending them into Portland.
But that order will not in itself allow Trump to send troops to Portland.
A second order bars any federalized Guard members – whether from Oregon or another state – from being deployed in Oregon. That order remains in place.
“The effect of granting an administrative stay preserves the status quo in which National Guard members have been federalized but not deployed,” the panel wrote.
The stay is a temporary measure while the court prepares to more fully take up the question of whether federalized Oregon National Guard members can be sent into Portland. Oral arguments in that matter are scheduled for Thursday at 9 a.m.
“Today’s order from the Ninth Circuit doesn’t change anything on the ground,” Attorney General Dan Rayfield, a Democrat, said in a statement Wednesday. “While it keeps the Oregon National Guard under federal status, most importantly, [it] prevents the President from deploying the guard in Portland. That means no unnecessary federal escalation – and that’s a win for Oregonians who want calm, not conflict in our communities.”
The panel issuing the ruling is made up of two judges appointed by Trump, and one appointed by former President Bill Clinton.
The Clinton appointee, Judge Susan Graber, has a lengthy history in Oregon. She spent time in private practice in Portland in the 1970s and 1980s before serving as presiding judge on the Oregon Court of Appeals and later as an associate justice on the Oregon Supreme Court.
Judge Ryan D. Nelson was nominated by Trump in 2018. He previously served as general counsel for a consumer goods company in Idaho Falls.
Judge Bridget Bade was nominated by Trump in 2019. She previously served as a U.S. Magistrate Judge for the district of Arizona.
While the order won’t lead to sweeping change, it ensures Gov. Tina Kotek is unable to send Oregon National Guard members home, which she attempted to do on Monday. Since last week, 200 guard members have been stationed at the Oregon National Guard’s Camp Rilea, near Astoria.
Tuesday’s order adds to a complicated patchwork of judicial rulings that have come down since Trump announced he would deploy Oregon National Guard members on Sept. 27.
Attorneys with the state of Oregon and city of Portland sued immediately to block that deployment, and on Oct. 4 won an order from U.S. District Judge Karin Immergut barring Trump from deploying the Oregon National Guard.
That is the order that the appeal court put on hold Tuesday, though judges noted their ruling was largely meant to retain the status quo and “does not constitute in any way a decision as to the merits” of that case.
Immergut issued a follow-up order on Oct. 5 that was broader. After the Trump administration signaled it would send troops from California and Texas to Oregon, Immergut’s second order temporarily barred the deployment of any federalized National Guard members to Portland.
At the center of the battle are protests against immigration enforcement that have played out near a U.S. Immigration and Customs Enforcement facility in Portland for months.
The Trump administration has painted those protests as a violent and destructive rebellion that allows him to send in the National Guard.
The state of Oregon and city of Portland say — and Immergut agreed — that those characterizations bear little resemblance to demonstrations that have been mostly small and can be handled by Portland police.
OPB reporter Lauren Dake contributed to this story.
This post will be updated.
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