National Guard troops temporarily blocked from deploying to Portland, judge rules

A judge on Saturday ordered the Trump administration to halt its mobilization of 200 Oregon National Guard troops to protect the ICE building in Portland and its officers amid nightly protests.

U.S. Department of Justice lawyers have vowed to immediately appeal the ruling and ask the 9th U.S. Circuit Court of Appeals to put a hold on the judge’s order.

In a 31-page opinion, U.S. District Judge Karin J. Immergut rejected the federal government’s assertion that Portland faces a “danger of rebellion,” and said she was not persuaded by the U.S. Justice Department’s argument that “regular forces,” are unable to execute federal law.

Lawyers for the U.S. government also failed to show that federal officers need backup from the National Guard to protect the building or themselves, Immergut found.

The state and the city of Portland provided substantial evidence that the protests at the ICE office off South Macadam “were not significantly violent or disruptive in the days – or even weeks – leading up to the President’s directive,” issued last weekend, the judge wrote.

The federal government’s assertion that the sniper shooting a week earlier at a federal immigration building in Dallas also provides grounds for the president to mobilize troops in Portland fails because it’s violence in a different state.

“Violence elsewhere cannot support troop deployments here, and concern about hypothethical future conduct does not demonstrate a present inability to execute the laws using nonmilitary federal law enforcement,” the opinion said.

The judge ruled that Trump illegally seized control of 200 state National Guard troops and directed him to return them to the command of Gov. Tina Kotek under her temporary order that expires Oct. 18.

The decision came after federal officers fired tear gas at a crowd of demonstrators who marched to the Portland immigration building in South Portland Saturday afternoon, and on the same day Illinois Gov. JB Pitzker announced that President Donald Trump planned to federalize 300 members of its state’s National Guard.

Immergut’s decision follows a federal judge’s ruling in California in early September that found Trump’s move to take control over the state’s National Guard in Los Angeles violated federal law. That ruling is pending appeal.

The sporadic violence outside the U.S. Immigration and Customs Enforcement field office in South Portland comes nowhere close to meeting the high bar required under federal law, namely part of the code known as Title 10, Section 12406, the judge said.

While the U.S. president is entitled to a great level of deference, Immergut wrote, “ ‘a great level of deference’ is not equivalent to ignoring the facts on the ground.”

Trump and his defense secretary last Sunday called Oregon National Guard members into federal service for 60 days, but no troops yet have arrived at the building.

The state and city of Portland filed suit hours later and then filed a motion seeking an immediate restraining order to block the deployment. California Gov. Gavin Newsom submitted a brief in support of Oregon’s challenge.

The federal code that Trump invoked to federalize state National Guard troops says presidents can call them up when regular forces are not enough to “execute the laws of the United States,” repel an invasion by a foreign nation or suppress a rebellion or the danger of a rebellion against the U.S. government.

Such orders, the code says, shall be issued through the “governors of the States” or in the case of the District of Columbia, through the commanding general of its National Guard.

Immergut also found that the troop mobilization violates the 10th Amendment, which reserves to the states all rights and powers not delegated to the U.S. by the Constitution, and harms the state by causing state and local police to spend more to quell increased civil unrest.

The judge pointed out that the size of the protests increased substantially, “ballooning to around 200 people,” last Sunday night, the night the defense secretary announced the federal mobilization of the state National Guard.

“Because the President is federalizing the Oregon National Guard absent constitutional authority, his actions undermine the sovereign interest of Oregon as protected by the Tenth Amendment,” the opinion said.

Federalizing the state National Guard members also diverts them from other state responsibilities, impairing Oregon’s ability to call on the Guard to respond to emergencies, the judge said.

Keeping the status quo is in the public’s interest, and doesn’t prevent local, state and federal law enforcement officers from continuing to arrest protesters who violated the law, Immergut wrote.

She referenced the country’s longstanding tradition of resistance to government overreach, quoting from founding father James Madison’s address to the Constitutional Convention in 1787: “A standing military force, with an overgrown Executive will not long be safe companions to liberty…”

“This historical tradition boils down to a simple proposition: this is a nation of Constitutional law, not martial law,” Immergut wrote. “Defendants have made a range of arguments that, if accepted, risk blurring the line between civil and military federal power—to the detriment of this nation.”

Oregon Attorney General Dan Rayfield called the judge’s ruling ” a healthy check on the president.”

“It reaffirms what we already knew: Portland is not the president’s war-torn fantasy,” he said in a statement. “Our city is not ravaged, and there is no rebellion.”

Saturday’s ruling followed a nearly two-hour hearing Friday morning.

Immergut got the case Thursday afternoon after U.S. District Judge Michael H. Simon, who was originally assigned it, recused himself once federal government lawyers raised the specter of “partiality,” considering his wife is a U.S. representative who joined with Oregon’s governor and Portland’s mayor to decry Trump’s troop deployment. Simon was nominated to the bench by former President Barack Obama in 2011; Immergut was nominated by Trump in 2019.

During arguments before a packed courtroom Friday morning, Immergut appeared skeptical of the Trump administration’s basis for placing the Guard members under federal control in Portland, asking what recent clashes have prevented immigration officers from doing their job.

While Immergut said she recognized that she must give deference to the president’s determination, she noted that it appeared the administration relied on a June 7 memo to federalize the troops in both Portland and California.

The memo — titled “Department of Defense Security for the Protection of Department of Homeland Security Functions” – contends that “numerous incidents of violence and disorder” in response to immigration enforcement, along with “significant damage” to immigration facilities and “credible threats” constituted a “form of rebellion against the authority” of the U.S. government.

“I don’t see anything in the record that talks about recent events,” Immergut said. “It doesn’t refer to anything proximate to the actual callout.”

U.S. Justice Department attorney Eric Hamilton pointed to Trump’s Sept. 27 post on Truth Social saying conditions in Oregon “continued to deteriorate into mayhem.” In that post, Trump wrote that he was directing his defense secretary to provide all necessary troops to “protect War ravaged Portland, and any of our ICE Facilities under siege from attack by Antifa and other domestic terrorists.”

Hamilton argued that the social media post indicated Trump had been in discussion with his subordinates and his posts “reflect his decision-making” with Defense Secretary Pete Hegseth, and that there’s been a “persistent and serious threat of violence” outside the ICE building.

“Really?’’ Immergut asked. “A social media post is going to count as a presidential determination that you can send the National Guard to cities? That’s really what I should be relying on?”

Hamilton also argued that a “threat of rebellion” exists in Portland, directing the judge to the 1891 definition in Black’s Law Dictionary, describing rebellion as a “deliberate organized resistance” to the laws or operations of the government.

He said the “monthslong targeting of a Portland ICE building with violence, intimidation and threats” by “vicious and cruel radicals” who have “laid siege” to the building and its officers qualifies as a threat of rebellion under the law.

Lawyers for the state and city of Portland countered that the June 7 memo appeared to have been drafted at the height of unrest in Los Angeles to justify the deployment of the California National Guard there and that it cannot be relied on for justification to deploy troops in Portland when the situation on the street here has been minimal in recent months.

State attorney Scott Kennedy called Trump’s assessment “vague, incendiary hyperbole.”

Picking up on the judge’s line of questioning, Kennedy argued that the timing of the troop deployment in Portland was “wholly arbitrary.” He said there must be “more than just minimal interference” with federal activity in the “relevant time frame” to justify a mobilization.

The greatest problems outside Portland’s ICE office occurred more than 90 days ago, with only sporadic incidents recently that federal officers and local police have quickly contained, he argued.

He called the Guard mobilization “one of the most dramatic infringements on state sovereignty in Oregon’s history” and said it’s “based largely on a fictional narrative.”

“The facts matter,” added Caroline Turco, a senior deputy city attorney. “The president’s perception is not the reality on the ground. What happens in Texas is not relevant to what’s happening here.”

“Increased federal involvement is going to take us back to 2020,” she said. “We don’t want the inflamed crowd that resulted from federal involvement at that time.”

Senior Assistant Attorney General Brian Marshall told the judge that the state and city would suffer “irreparable harm” if she didn’t step in to block Trump’s troop deployment. The National Guard members will not be under the governor’s command, and won’t be available for calls to emergencies or natural disasters. Their presence in Portland will also drive up overtime costs for Portland police, who undoubtedly will have to work extra hours to handle any increased demonstrations in response, he said.

It’s unclear whether Trump and Hegseth will continue their move to place Oregon National Guard troops at the city’s ICE building.

The 9th Circuit has yet to rule on the federal government’s appeal of an injunction issued in early September by U.S. District Judge Charles R. Breyer of San Francisco, who found the president’s federalizing of California National Guard troops in June violated law. There, the initial 4,000 troop deployment has dropped to several hundred.

Gov. Tina Kotek and Oregon Attorney General Dan Rayfield issued separate statements Friday evening, urging patience as Immergut deliberated.

“I will continue to hold the line on Oregon values every time they are under threat and use my voice to stand up for the prosperity and freedom of every Oregonian,” Kotek said. “There’s no one I would rather fight with, and for, than the people of this great state. Thank you.

Rayfield said that Oregonians should “remember who we are.”

“We don’t need to get swept up in fear or political drama—we know how to look out for one another,” he said. “Portland has always been a place that’s a little different, a little quirky, and that spirit of resilience and creativity is what will carry us through.”

Rayfield also went on social media Friday night, offering this message: “No matter what the ruling is, it is important as a community that we come together and are peaceful as we are waiting for this process to resolve in our courts.”

At the federal court hearing Friday morning, the 15th floor courtroom of the Mark O. Hatfield U.S. Courthouse in downtown Portland filled quickly as did an overflow courtroom with a video feed. A public phone call-in line also was active.

Mayor Keith Wilson and Portland City Attorney Robert Taylor were among those who were in the main courtroom and Oregon’s interim U.S. Attorney Scott E. Bradford sat directly behind the U.S. Department of Justice lawyers arguing the case.

Outside a handful of people demonstrated, holding signs that read, “Guard: Go Home!” as one man blasted Buffalo Springfield’s song, “For What It’s Worth,” about protests during the Vietnam War, on a speaker set up across the street.

Immergut previously served as a Multnomah County Circuit Judge from 2009 to 2019, and before that six years as Oregon’s U.S. Attorney. In a prior job as a Multnomah County deputy district attorney, she took a leave of absence to work in the Office of Independent Counsel Kenneth Starr. Her key grand jury interviews of Monica Lewinsky helped unravel the details of Lewinsky’s sexual encounters with President Bill Clinton and ultimately helped determine that he had lied under oath.