The debate over the federal government’s authority to deploy National Guard troops to quell protests in American cities has reached a fever pitch, with the Ninth Circuit Court of Appeals at the center of the legal and political storm. In a pair of closely watched cases, the appellate court has allowed President Donald Trump’s administration to proceed with the federalization and deployment of National Guard troops to Portland, Oregon, and Los Angeles, California, despite fierce objections from state officials, local authorities, and a bloc of dissenting judges.
The legal saga began in late September 2025, after months of protests—some peaceful, others violent—outside the Lindquist Federal Building, an Immigration and Customs Enforcement (ICE) facility in Portland. According to the Center for Immigration Studies, Department of Homeland Security (DHS) Secretary Kristi Noem requested “immediate and sustained assistance” from the Department of War to protect federal assets in Oregon. President Trump quickly responded, issuing a statement on September 27 and, the following day, authorizing Secretary of War Pete Hegseth to request the deployment of 200 Oregon National Guard troops “into Federal service effective immediately for a period of 60 days.” The legal authority cited: 10 U.S.C. § 12406, which allows the president to call National Guard members into Federal service to repel invasions, suppress rebellions, or execute federal laws when regular forces are unable.
Oregon officials, including Governor Tina Kotek and the Portland Police Bureau, challenged the deployment in federal court. They argued that the president’s order was “ultra vires”—that is, beyond the scope of his legal powers—and violated the Tenth Amendment, the Administrative Procedure Act, and the Posse Comitatus Act. On October 4, U.S. District Judge Karin Immergut sided with the plaintiffs, issuing a temporary restraining order (TRO) that blocked the deployment. Judge Immergut found that, as of September 27, “it had been months since there was any sustained level of violent or disruptive protest activity in Portland,” and that federal law enforcement, not the military, had been sufficient to manage sporadic unrest. She even cited the president’s own statements describing Portland as “war ravaged” and ICE’s facility as “under siege from attack by Antifa,” concluding, “nothing in the record suggests that anything of this sort was occurring ‘every night’ outside the Portland ICE building or in the City of Portland in the days or weeks leading up to his September 27 directive.”
The Department of Justice immediately appealed, and on October 20, a three-judge panel of the Ninth Circuit issued a per curiam order staying Judge Immergut’s TRO. The panel majority—Judges Ryan Nelson and Bridget Bade—concluded that Trump “likely lawfully exercised his statutory authority” under section 12406(3), given that the evidence he “relied on reflects a ‘colorable assessment of the facts and law within a range of honest judgment.’” Notably, the panel’s order chronicled a series of violent incidents at the Lindquist Federal Building between June 13 and July 7: protesters damaged the building, forced its closure for over three weeks, attempted to burn it down, chained doors, broke glass, threw rocks and fireworks at officers, assaulted and doxed federal employees, and even coerced homeless individuals to create distractions at the facility gates. The Federal Protective Service (FPS) deployed 115 officers—about a quarter of its nationwide force—on 12-hour shifts at a cost of over $2 million to protect the building.
In a striking episode, as reported by the Center for Immigration Studies, officers observed “several older homeless people being coerced into approaching the ICE facility gate,” with one elderly man telling agents he was being forced to act “to instigate agent response.” Despite these challenges, the City of Portland issued a Notice of Zoning Violation on September 18, requiring the removal of window coverings meant to protect the building from further damage.
Judge Nelson, in a separate concurrence, argued that invocations of section 12406 are not subject to judicial review, citing historical precedents dating back to the early Republic. He noted that the statute had been used for “far more anodyne purposes”—such as President Nixon’s deployment of the National Guard during a postal worker strike—and that the unrest in Portland likely qualified as a “rebellion” under the statute, drawing analogies to historical events like the Whiskey Rebellion and Fries’s Rebellion.
Meanwhile, a parallel legal battle was unfolding in California. On October 23, the Ninth Circuit denied rehearing of a stay of a San Francisco district judge’s TRO that had blocked the deployment of federalized California National Guard troops to Los Angeles. The decision, as reported by the Daily Journal, allowed the Trump administration to continue with its deployment orders despite heated objections from state officials and several liberal judges.
Senior Ninth Circuit Judge Marsha Berzon, joined by six other judges, issued a pointed dissent: “For the first time in the nearly 250-year history of this country, the President claims extraordinary, unilateral powers to order state National Guard troops onto the streets of select cities in response to short-term, hyper-localized, domestic protests of federal policies.” She argued that this “claimed authority clashes directly with the traditional strong resistance of Americans to military intrusion into civil affairs,” referencing the historical memory of British troops enforcing oppressive measures before the American Revolution. Judge Ronald M. Gould echoed these concerns, warning, “The democratic ideals our nation has consistently promoted for the last quarter millennium will be gravely undercut by allowing military force and weapons of war to be deployed against American citizens on U.S. soil on the flimsy grounds asserted here for this use of Executive power.”
Despite these dissents, nine other Democratic appointees on the Ninth Circuit did not join Berzon or Gould. The ruling left the merits of the case unresolved, meaning the constitutional questions surrounding the president’s authority remain open—and the legal fight is far from over.
The California attorney general’s office attempted to intervene in the Portland deployment case, but the Ninth Circuit panel denied the motion, accepting it only as an amicus brief. As of now, a decision on whether the Ninth Circuit will rehear the Portland case en banc could come at any time. There is also a related case concerning the deployment of National Guard troops to Chicago, which observers suggest may reach the U.S. Supreme Court soon. With a 6-3 conservative majority, the Supreme Court has consistently ruled in favor of the Trump administration on similar issues.
As the legal wrangling continues, the Ninth Circuit’s orders have cleared the way for the Trump administration to deploy National Guard troops to American cities in response to protests against federal policies. The controversy has reignited deep national debates over federalism, executive power, and the use of military force in domestic affairs—issues as old as the Republic itself, yet as urgent and divisive as ever in 2025.
With passions running high on all sides, the country now waits to see whether the courts, the political process, or events in the streets will ultimately shape the limits of presidential power in times of domestic unrest.
