SAN FRANCISCO – The U.S. Court of Appeals for the Ninth Circuit has moved to reconsider one of its most consequential rulings of the year, signaling potential full-court review in State of Oregon and City of Portland v. Donald J. Trump et al., a case testing the limits of presidential power to federalize a state’s National Guard over its governor’s objection.
On Monday, October 20, Circuit Judge Sidney R. Thomas, acting as En Banc Coordinator, issued an order stating that “a judge of this Court has sua sponte requested a vote on whether this case should be reheard en banc.”
The order directs all parties to file simultaneous supplemental briefs by midnight Pacific Time on Wednesday, October 22, 2025, addressing whether the case should be reheard before the full court. Each brief must not exceed 14,000 words.
The procedural move followed a divided three-judge panel’s decision earlier in the day lifting a lower court’s temporary restraining order that had blocked the Trump administration from deploying 200 federalized members of the Oregon National Guard to Portland.
The 2-1 ruling immediately drew criticism from state officials, civil rights advocates, and dissenting Judge Susan P. Graber, who accused the majority of undermining the Constitution’s protections for state sovereignty and the right to protest.
In its 93-page opinion, the majority—Judges Bridget S. Bade and Ryan D. Nelson—granted the administration’s request for a stay pending appeal, finding that President Trump likely acted within his statutory authority under 10 U.S.C. § 12406(3).
That statute allows federalization of state National Guard units when “the President is unable with the regular forces to execute the laws of the United States.”
The court wrote that it was “likely that the President lawfully exercised his statutory authority” and that “the evidence the President relied on reflects a colorable assessment of the facts and law within a ‘range of honest judgment.’”
The ruling reversed U.S. District Judge Karin Immergut’s October 4 order, which had blocked the deployment. Judge Immergut found that the President’s determination of an emergency in Portland was “simply untethered to the facts” and that there was no “rebellion or a danger of rebellion” in the city.
Judge Graber dissented, sharply criticizing the majority’s reasoning.
She wrote, “Given Portland protesters’ well-known penchant for wearing chicken suits, inflatable frog costumes, or nothing at all when expressing their disagreement with the methods employed by ICE, observers may be tempted to view the majority’s ruling, which accepts the government’s characterization of Portland as a war zone, as merely absurd. But today’s decision is not merely absurd. It erodes core constitutional principles, including sovereign States’ control over their States’ militias and the people’s First Amendment rights to assemble and to object to the government’s policies and actions.”
The case originated after President Trump’s September 27 order directing the federalization of 200 members of the Oregon National Guard for 60 days to protect federal personnel and property at the Lindquist Building, an Immigration and Customs Enforcement (ICE) facility in Portland. The order followed months of protests near the facility that federal officials described as violent and threatening to government property and personnel.
The State of Oregon and City of Portland filed suit, arguing that the President’s actions were unconstitutional and violated the Tenth Amendment, the Posse Comitatus Act, and separation-of-powers principles. They alleged the deployment was an “ultra vires” action beyond the scope of lawful presidential authority.
The Ninth Circuit majority rejected those claims, holding that courts must give significant deference to the President’s determination that conditions exist for federalizing the National Guard. Citing Newsom v. Trump, a similar case involving California, the majority concluded that courts may review the President’s determination only to ensure that it “reflects a colorable assessment of the facts and law within a range of honest judgment.”
The American Civil Liberties Union of Oregon denounced the ruling in a statement.
“We are very disappointed that the majority on this Ninth Circuit panel were unable to see through President Trump’s political theater, divisive rhetoric, and extreme abuse of power and misuse of our military,” said Sandy Chung, executive director of the ACLU of Oregon. “The fact remains that Portland is peaceful. Portland protesters have shown a remarkable level of humor, creativity, and community care in the face of this administration’s persistent and violent abuses of power. Inflatable frog and unicorn costumes, bike rides, and musical events are hardly a threat or reason to take the extremely dangerous and anti-democratic action of sending American troops into our communities.”
Hina Shamsi, director of the ACLU’s National Security Project, said the organization hopes the full court intervenes.
“As the founders emphasized, domestic deployment of troops should be reserved for rare, extreme emergencies as a last resort, but that is far from what the Trump administration is doing in Portland, Chicago, Los Angeles, and DC,” she said in the same release. “The presence of troops in otherwise beautiful, vibrant American cities erodes a sense of safety and undermines the core freedoms to assemble and voice dissent. We hope that the full Ninth Circuit swiftly weighs in to correct this mistake and safeguard core constitutional values.”
The en banc process represents the Ninth Circuit’s mechanism for internal review when a panel decision may conflict with precedent or raise questions of exceptional importance. If a majority of active judges vote to rehear the case en banc, an 11-judge panel will reconsider it, and the three-judge panel’s opinion may be vacated.
Judge Thomas’s order does not guarantee rehearing, but the sua sponte call for a vote—made on the court’s own initiative—suggests concern within the court about the implications of the decision. Such a move is rare and typically reserved for cases with significant constitutional or institutional impact.
The Ninth Circuit’s stay remains in effect, allowing the administration to proceed with its federalization order pending further review. A second district court order that separately prohibited federalized National Guard troops from California and Texas from deploying to Oregon remains unaddressed on appeal.
Legal experts say the Ninth Circuit’s final decision could shape the boundaries of presidential authority over the National Guard for years to come. The question of how much deference courts owe the President when invoking emergency powers to deploy troops inside the United States—especially against the will of a state governor—has rarely been tested in modern times.
Briefs in response to Judge Thomas’s order are due October 22. The court’s vote on whether to rehear the case en banc is expected soon after. If granted, arguments could be scheduled before the end of the year, setting the stage for a landmark constitutional battle that may ultimately reach the Supreme Court.
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