November 16, 2025
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NWN COMMUNITY BLOG US Appeals Court Allows Troops To Be Sent to Portland

US Appeals Court Allows Troops To Be Sent to Portland

A three-judge panel of the Ninth Circuit has granted a stay allowing the federal government to proceed with federalization of the Oregon National Guard troops in the Portland, Oregon area — despite a prior temporary restraining order (TRO) issued by the district court blocking that move. The panel’s decision arose from the government’s appeal of the district court’s finding that the deployment may be unlawful.

On September 28, 2025, the U.S. Department of Defense, under Secretary Pete Hegseth, issued a memorandum to federalize 200 Oregon National Guard members under the President’s authority via 10 U.S.C. § 12406(3). Following that, the State of Oregon and the City of Portland challenged the memorandum, obtaining a TRO on October 4. The district court found that the President’s justification lacked factual support — protests were “largely sedate” and local law enforcement was capable of addressing them.

On October 8, the Ninth Circuit issued an administrative stay of the TRO — meaning the federalization could proceed (but not deployment) while appeal proceedings continued.On October 20, the full panel issued a merits stay by 2-1 vote, reasoning that the government had shown a “strong showing” of likely success under the deferential standard for presidential determinations under § 12406(3). The majority held that the district court had substituted its own factual assessment rather than deferring to the President’s determination that regular forces were insufficient. The dissenting judge warned that the ruling jeopardizes state sovereignty and First Amendment rights. Importantly, a second TRO — issued October 5 to block any deployment of federalized troops — remains in force, so actual on-the-ground deployment has not yet commenced.

The case raises core constitutional questions: the scope of the President’s authority to federalize the National Guard under § 12406(3) (“when the President is unable, with the regular forces, to execute the laws of the United States”), the role of federal judicial review, and the balance between federal power and state sovereignty under the Tenth Amendment.

Key Points

  • The Ninth Circuit’s stay allows federalization of Oregon’s National Guard members while deployment remains blocked.
  • The legal basis lies in 10 U.S.C. § 12406(3), giving the President power to federalize guard units when regular forces are unavailable to enforce federal law. Court of Appeals for the Ninth Circuit
  • The majority applied a deferential standard, holding that courts must accept the President’s “colorable assessment” unless plainly absurd. Court of Appeals for the Ninth Circuit+1
  • The dissent warns the ruling enables unchecked federal militia deployment in peacetime, undermining states’ rights. The Guardian
  • Although federalization is permitted, the second TRO prevents actual deployment, leaving an unresolved legal limbo.
  • Local officials argue the protest conditions in Portland did not justify federal intervention, citing reports of largely peaceful assemblies. opb

Projections & What It Means for the Future

  • Presidential authority precedent: If upheld, the ruling broadens executive power to deploy guard units domestically under § 12406(3) for enforcement of federal law, potentially blurring lines between military and civilian authority.
  • Federal-state balance shift: States may perceive a slippery slope toward federal override of local law-enforcement prerogatives, sparking renewed debate over the Tenth Amendment and militia clause.
  • Civil-liberties risk: Civil-rights groups may intensify litigation, challenging the deployment of troops in non-emergency domestic settings and arguing chilling effects on protest and assembly.
  • Litigation escalation: The full Ninth Circuit may rehear the case en banc, and the Supreme Court of the United States could ultimately weigh in, potentially reshaping § 12406 doctrine.
  • Operational & political effects: Even without immediate deployment, the government’s ability to federalize could act as a power lever in protests or immigration-driven operations, raising concerns about politicization of military force.
  • State responses: Some states may tighten legal safeguards or challenge federal mobilization more aggressively; local governments may prepare for federal-state conflicts over domestic military deployment.

In sum, the ruling marks a significant moment in U.S. constitutional law — one that may recalibrate how domestic military authority intersects with civilian government, civil protest, and state sovereignty.

References