- “Oregon’s sovereign power to manage its own law enforcement activity and National Guard resources is being trampled.”
SAN FRANCISCO, CA — The full U.S. Court of Appeals for the Ninth Circuit voted Tuesday to vacate a 2-1 order that had sided with the Trump administration’s effort to federalize and deploy the Oregon National Guard in Portland. The decision leaves in place a lower court’s restraining order blocking the deployment while the case is ongoing.
Chief Judge Mary H. Murguia announced that a majority of the court’s active judges voted for rehearing the matter en banc. The brief order vacated the panel ruling issued last week and scheduled further consideration before an expanded 11-judge panel.
The en banc order means the Justice Department’s request to lift U.S. District Judge Karin Immergut’s temporary restraining order is on hold, and federalized National Guard troops remain barred from deployment in Portland pending further review.
The decision represents the latest legal setback for President Donald Trump’s effort to expand his use of the National Guard in domestic law enforcement operations. It also keeps intact an order that Oregon, California, and the City of Portland sought to prevent what they describe as an unconstitutional intrusion into state sovereignty.
The underlying case, State of Oregon et al. v. Trump et al., challenges the Trump administration’s attempt to invoke Title 10 authority to place members of the Oregon National Guard under federal control and deploy them to Portland.
In a 45-page amended complaint filed in early October, the plaintiffs argue that Trump’s order violated both the Tenth Amendment and the Posse Comitatus Act, which limits the use of the military in domestic law enforcement.
The complaint describes the President’s September 27 social media announcement authorizing the use of “full force” in Portland as a political act aimed at punishing states that have resisted his immigration policies.
According to the filing, Trump described Portland as a “war-ravaged city under siege from domestic terrorists,” language that Oregon officials say has no basis in fact.
The document notes that local protests outside Portland’s Immigration and Customs Enforcement facility had dwindled to fewer than 30 participants in recent weeks and had not led to arrests since mid-June.
“Oregon’s sovereign power to manage its own law enforcement activity and National Guard resources is being trampled,” the complaint states. “Far from promoting public safety, the defendants’ provocative and arbitrary actions threaten to undermine public safety by inciting a public outcry.”
The Oregon Department of Justice, joined by the California Department of Justice and the Portland City Attorney’s Office, is set to begin trial arguments Wednesday in the U.S. District Court for the District of Oregon.
The attorneys will argue that the President’s actions are “ultra vires,” or beyond the scope of his legal authority, and that the forced deployment of state National Guard troops violates constitutional limits on federal power.
California Attorney General Rob Bonta issued a statement ahead of the trial condemning Trump’s actions.
“President Trump is misapplying the law and misusing the power of the executive,” Bonta said. “If he has his way, he would remake America into a military state, with an army that answers to no one but him. California’s National Guard members have been subject to the political whims of this President for too long. It’s time for them to come home. We look forward to making our case in court — the facts and the law are on our side, and we are confident that the court will agree.”
The Ninth Circuit’s en banc review follows months of escalating litigation over the federalization of state National Guards for domestic use.
Earlier this year, California and other states sued the administration after Trump ordered the California National Guard into federal service for what he called “law and order” operations in Los Angeles.
U.S. District Judge Charles R. Breyer ruled in September that the deployment of federalized Guard troops and Marines in Los Angeles violated the Posse Comitatus Act, describing the operation as “a serious breach of federal law.” That order, too, is on appeal before the Ninth Circuit.
The Oregon complaint draws heavily from that case, arguing that Trump’s use of the National Guard for civilian policing represents a “pattern of political retribution” against states led by Democratic governors and mayors who have refused to cooperate with federal immigration enforcement.
It also cites Trump’s long history of public statements threatening to deploy military personnel domestically. The filing references his comments from April 2024, when he told reporters that he would have “no problem using the military” to promote “law and order in our country,” and that the Posse Comitatus Act would not apply because “these aren’t civilians.”
The lawsuit also details the events leading to the Oregon deployment. On September 27, 2025, following a series of Fox News segments that showed recycled footage from 2020 protests, Trump announced online that he was directing the Secretary of War to send “all necessary troops” to protect ICE facilities in Portland.
Within 24 hours, Defense Secretary Pete Hegseth issued a memorandum federalizing 200 members of the Oregon National Guard for a 60-day deployment. The memo cited “numerous incidents of violence and disorder” in response to the enforcement of federal law, which the administration characterized as a “form of rebellion.”
Oregon Governor Tina Kotek immediately rejected the order, stating that “Oregon does not need help from the military” and that local law enforcement was fully capable of maintaining public safety. The same day, she joined Attorney General Dan Rayfield and Portland city officials in filing suit in federal court.
The plaintiffs argue that the President failed to meet any of the conditions required to invoke Title 10 authority under 10 U.S.C. § 12406, which permits federalization of the National Guard only in the event of an invasion, rebellion, or if regular federal forces are unable to enforce the law. They also contend that using federalized troops for policing violates the Posse Comitatus Act’s prohibition on military involvement in civilian law enforcement.
The complaint further asserts that the deployment threatens to provoke unrest and undermine local safety rather than improve it. It warns that “Defendants’ heavy-handed deployment of troops threatens to escalate tensions and stokes new unrest,” requiring additional local law enforcement resources to manage the fallout.
The document cites prior deployments in Los Angeles and Washington, D.C., which it says led to “escalated tensions, economic disruption, and harm to public safety.”
In addition to legal and public safety concerns, Oregon and Portland officials argue that the federal action endangers the state’s emergency preparedness. The complaint notes that the Oregon National Guard is a critical resource for wildfire response and other emergencies, and that federalizing even a portion of its personnel during an active fire season could leave the state vulnerable.
“Given the Guard’s limited resources and the inherent uncertainty about what needs might arise, needlessly calling hundreds of the Guard’s members into federal service for a months-long period places the state in jeopardy,” the complaint states.
The Ninth Circuit’s order on Tuesday reflects growing judicial skepticism of Trump’s domestic use of military power. By vacating the earlier panel decision and agreeing to rehear the matter en banc, the court signaled its recognition of the case’s constitutional significance and its potential implications for federal-state relations.
For now, Judge Immergut’s temporary restraining order remains in effect, preventing any deployment of Oregon or California National Guard troops under federal authority in Portland. The en banc hearing will determine whether the Trump administration can proceed with its appeal and whether the President’s asserted powers to federalize the Guard withstand constitutional scrutiny.
The trial in Oregon begins Wednesday morning in Portland.
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