Oregon troop deployment blocked by Trump-appointed judge
"The President’s determination was simply untethered to the facts," Judge Immergut found.
“A standing military force, with an overgrown Executive will not long be safe companions to liberty. The means of defence [against] foreign danger, have been always the instruments of tyranny at home.”
— James Madison, quoted in today’s ruling
A federal judge appointed by Donald Trump temporarily blocked his plans to send hundreds of military troops to Portland, Ore., finding that Trump’s rationale for the deployment was “simply untethered to the facts” on the ground.
U.S. District Judge Karin Immergut found such an order necessary to preserve the nation’s “longstanding and foundational tradition of resistance to government overreach, especially in the form of military intrusion into civil affairs.”
“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.”
Possible action item:
On Sunday, veterans will rally on the steps of Portland City Hall for an event titled “Duty to Disobey” at 2 p.m. Pacific Time. More information can be found here.
Trump appointed Immergut to the District of Oregon during his first term.
In 2024, Chief Justice John Roberts gave Immergut a concurrent appointment to the Foreign Intelligence Surveillance Court in 2024.
Judge Immergut’s temporary restraining order blocks Trump’s order authorizing the deployment of the Oregon National Guard into Portland for the next 14 days.
Her scathing 31-page opinion and order demolishes the factual and legal underpinnings of Trump’s plan in a way that could resonate in other jurisdictions.
What the judge found
In both Los Angeles and Portland, Trump justified federalizing the National Guard by invoking the statute 10 U.S.C. § 12406, authorizing the president to deploy troops under three circumstances:
(1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;
(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or
(3) the President is unable with the regular forces to execute the laws of the United States.
Judge Immergut found that none of these conditions applied.
In California, Senior U.S. District Judge Charles Breyer reached the same conclusion before issuing a temporary restraining order which was later overturned by the Ninth Circuit Court of Appeals. There, a three-judge panel found that Trump had a “colorable basis” to deploy the military to execute the laws of the United States under a deferential standard.
But Immergut found that even that deferential standard did not fit the facts on the ground in Portland.
“The President’s determination was simply untethered to the facts,” Immergut wrote, adding that the directive was “not ‘conceived in good faith.’”
In the months preceding Trump’s directive on Sept. 27, the judge noted, the protests had been “small and uneventful.”
Though the Ninth Circuit requires judges to grant heightened deference over the use of the military, she added that “‘a great level of deference’ is not equivalent to ignoring the facts on the ground.”
What happens next
Although Trump issued his directive federalizing the Oregon National Guard last month, those troops have not yet been deployed to Portland. Trump is blocked from sending them to the city over the next 14 days until Oct. 18.
Before the restraining order expires, Judge Immergut will decide whether to extend her ruling temporarily or through an injunction.
Meanwhile, the ruling could have broader repercussions in the Ninth Circuit Court of Appeals, which may reconsider the earlier ruling allowing Trump to send troops to California.
After a trial, Judge Breyer found that the Trump administration violated the Posse Comitatus Act by using the military for civilian law enforcement. Breyer blocked that use of the military, but he stopped short of ordering the troops out of California because of the Ninth Circuit’s decision earlier this year. The Ninth Circuit is currently weighing whether to reconsider that ruling through what is known as an en banc review.
California Attorney General Rob Bonta (D) recently argued that Trump’s actions in Portland show why the Ninth Circuit should reverse course.
In a letter dated Sept. 29, Bonta noted that he “warned” the appeals court that their earlier decision “would invite the President and Secretary Hegseth to deploy the National Guard in other communities across this Circuit, in violation of 10 U.S.C. § 12406, the Posse Comitatus Act, and longstanding democratic traditions.”
“That prediction has materialized,” the letter states, referring to Trump’s order in Portland.
California likely will point to the Oregon decision as proof that Trump will cling to any weak or fabricated rationale to send troops across the country.
“It is time to end this unprecedented experiment in militarized law enforcement and conscription of state National Guard troops outside the narrow conditions allowed by Congress,” the letter continues. “As long as this Court’s published stay order, including its ‘highly deferential standard of review,’ remains in place, [the Trump administration] will be emboldened to press forward with plans to deploy troops for law-enforcement purposes across our Nation.”
Read the Oregon ruling in full here.
It feels So Good to go to bed on a Saturday night knowing that there is a signed, sealed, and delivered Republican judge who will cut through the BS of Flower Power Portland as a "war zone" and "deference" to the untethered Trump.
And now I have the words for yet another No Kings Day sign:
"Untethered from the facts"
I am so grateful for Judge Immergut and the many other lower court judges who have defended our Constitution. And grateful to you as well, for your excellent write-ups of these events as they unfold.