9th Circuit Hands Trump Administration a Big Win in the Oregon National Guard Case
by Susie Moore, Redstate.com, October 20, 2025
The Trump administration got a significant shot in the arm on Monday compliments of the 9th Circuit Court of Appeals. Yes — the 9th Circuit. This latest boost involves the administration's federalization and deployment of the National Guard in Oregon. The appellate court has now granted the administration's motion for a stay pending appeal.
How Did We Get Here?
Here's a brief background/chronology on the case:
- September 28, 2025 — Secretary of War Pete Hegseth issued a memorandum authorizing the federalization and deployment of 200 Oregon National Guard service members.
- That same day, plaintiffs (the City of Portland and State of Oregon) filed a lawsuit in Oregon District Court seeking to enjoin the administration from implementing that memorandum.
- October 4, 2025 — Judge Karin Immergut issued a temporary restraining order (TRO #1) prohibiting the administration from implementing the memorandum.
- That same day, the administration appealed TRO #1 to the 9th Circuit.
- October 5, 2025 — The administration attempted a bit of an end-run around TRO #1, deploying 300 Californian National Guardsmen to Oregon.
- That same day, the Oregon plaintiffs sought leave to amend their complaint and sought TRO #2, which Immergut swiftly entered, prohibiting the deployment of any federalized members of the National Guard (i.e., from any state) in Oregon.
- October 8, 2025 — The 9th Circuit issued an administrative stay on TRO #1.
- October 9, 2025 — The 9th Circuit held oral argument on the administration's motion for a stay pending appeal.
SEE ALSO: More Than One Way to Crack an Egg: Trump Deploys California National Guard...to Oregon
New: 9th Circuit Presses Pause on TRO Issued by Oregon Judge re: National Guard
The 9th Circuit Ruling
That brings us to today (Monday) and a 2-1 decision issued by the 9th Circuit granting the administration's motion for a stay pending appeal. The majority opinion was "per curiam," with Judges Bridget Bade and Ryan Nelson (both Trump appointees) signing onto it — and Nelson authoring a separate concurrence. (More on that momentarily.) The dissent was authored by Judge Susan Graber (a Clinton appointee).
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The full opinion/order is 93 pages, so I won't be able to do it justice in this space, but I'll note the overall gist of it and include a few highlights.
In a nutshell, the court found "that it is likely that the President lawfully exercised his statutory authority under 10 U.S.C. § 12406(3), which authorizes the federalization of the National Guard when 'the President is unable with the regular forces to execute the laws of the United States.'” (The court declined to delve into 10 U.S.C. § 12406(2), "which authorizes federalization of the National Guard to address a rebellion or danger of a rebellion against the authority of theGovernment of the United States.'”)
In doing so, the court pointed out several instances where the district court erred:
First, the district court erred by determining that the President’s “colorable assessment of the facts” is limited by undefined temporal restrictions and by the district court’s own evaluation of the level of violence necessary to impact the execution of federal laws.
The district court then discounted the violent and disruptive events that occurred in June, July, and August, including the resulting closure of the ICE facility for over three weeks in June and July, id. at *1, 4, and focused on only a few events in September, id. at *10. Thus, the district court discounted most of the evidence of events in Portland from June through September.
[From Footnote 10] The district court also clearly erred in characterizing the events in September leading up to and preceding the federalization order. See Elosu v. Middlefork Ranch Inc., 26 F.4th 1017, 1023 (9th Cir. 2022). There were numerous instances of violent and disruptive behavior at the ICE facility in September.
Rather than reviewing the President’s determination with great deference, the district court substituted its own determination of the relevant facts and circumstances. That approach is error under Newsom.
In his concurrence, Judge Nelson made the larger point that:
First, under current Supreme Court precedent, presidential determinations under § 12406 are not reviewable by federal courts. Second, Plaintiffs have serious standing issues because they only seek injunctive relief that this court lacks the power to issue and Plaintiffs lack an injury in fact. Third, while the Per Curiam order takes a more fact bound approach to the issues presented, the President’s determination under § 12406(3) and § 12406(2) are bolstered by the history and tradition of the early Militia Acts. Fourth, the likely lawfulness of the President’s determination under § 12406 is bolstered by the executive’s proportionate response to the events in Portland.
That bolded portion is key — and something I believe will be borne out when all is said and done on the merits of these cases.
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What's Next?
One other thing to point out: The administration did not appeal TRO #2. They advised the 9th Circuit during oral argument that, "They did not appeal the second TRO, which relies on the same legal reasoning as the first TRO, because they concluded that the district court would be required to dissolve the second TRO if Defendants succeed on their motion for a stay pending appeal."
The court, in the majority opinion, observed:
In other words, according to the 9th Circuit, the first TRO is stayed and the second one must necessarily be so, as well. Thus, the administration may deploy the National Guard in Oregon as necessary while this all gets sorted out on the merits.The district court stated that it granted the second TRO based on the same legal reasoning it provided in its order issuing the first TRO. Defendants are thus correct that the first TRO and the second TRO rise or fall together on the merits of the issues raised in this motion for a stay pending appeal.
