A court hearing on the legality of President Donald Trump’s deployment of National Guard troops to Oregon became contentious on Thursday, as a panel of federal appellate judges heard arguments on whether a lower court order barring the use of the guard against protesters in Portland should be struck down.

The remote hearing before three judges of the 9th Circuit Court of Appeals took place as Guard troops remained stationed in the Portland area, ready to go in if the government’s lawyers prevail, as well as in the greater Chicago area, where a separate federal hearing was taking place on the legality of Trump’s deployment of the Texas National Guard to Illinois. Trump has also sent some National Guard troops from California to Illinois and Oregon.

The cases test the power of the president to decide when the conditions exist to legally take over National Guard troops over the objections of state governors and deploy them on American streets, even when there is broad disagreement about the level of unrest or violent activity on the ground.

A Portland federal judge’s temporary restraining order barring the use of National Guard troops in that city was “unprecedented” and should be struck down, Deputy Assistant U.S. Attorney Eric McArthur argued. He pointed to a recent ruling by a different panel of the 9th Circuit that affirmed Trump’s right to send the Guard to help quell protests in Los Angeles, a move also being opposed in court by Gov. Gavin Newsom.

Over the weekend, U.S. District Judge Karin Immergut in Portland said the White House had not met the legal requirements to send Oregon Guard personnel into the city. When Trump then said he would send California National Guard troops instead, she issued a second order, barring the use of activated Guard troops from any state.

The law governing the call-up of Guard troops allows them to be deployed during an invasion, a rebellion, or when “the president is unable with the regular forces to execute the laws of the United States” under Title X. Court precedent has generally given the president wide discretion in deciding when those conditions are met.

“For months, the ICE facility in Portland and the federal law enforcement officers who work there have faced a steady stream of violence, threats of violence and harassment from violent agitators bent on impeding federal immigration enforcement,” McArthur said.

But Oregon Assistant Attorney General Stacy Chaffin argued that the federal government was exaggerating conditions on the ground in Portland — saying that by late September when Trump called up the Guard, protests at the Portland facility were small and mostly peaceful, drawing around 30 people. Local police were able to handle any incidents of violence or other crimes, she said.

Was the deployment justified?

The three judges, two appointed by Trump and one by President Bill Clinton, interrupted both lawyers to ask pointed questions.

“That’s clearly erroneous,” U.S. Circuit Judge Ryan Nelson interjected as Chaffin described the protests as small.

“There have clearly been protests that were above 30,” said Nelson, who was appointed by Trump in 2018. Moreover, he said, the courts have generally given the president broad discretion about when to call up the Guard.

Circuit Judge Susan Graber, who was appointed by Clinton in 1998 and is based in Portland, questioned McArthur about the administration’s definition of “rebellion” as it related to the law allowing the Guard to be called up. She also asked questions to elicit the administration’s reasons for saying troops were needed in Portland at a time when both sides agreed that protest activity had diminished.

Chaffin argued the documents cited by the administration to justify the call-up were inadequate. One, the initial memorandum calling up the Guard, was dated June 7, more than three months before Trump decided to sent troops to Portland. Another, a Truth Social post, described conditions in the Oregon city inaccurately, she said.

“Within that document the president references Portland as ‘war-ravaged,’ which we all know is not accurate,” Chaffin said. “It also calls Portland under siege, also an inaccurate statement.”

Because the statements are inaccurate, she said, they can’t form the basis for a decision to call up the guard, she said.

Both Nelson and Judge Bridget Bade, who was appointed by Trump in 2019, appeared skeptical of the argument that conditions in June did not necessarily warrant a deployment in October.

“So the president loses his right to do that in your view because he waits to see how things turn out on the ground?” Nelson asked, later adding, “That seems unnaturally constrained.”

Chaffin said that even in June, while protests in Los Angeles had drawn thousands of people and were violent, those in Portland were smaller and any lawbreaking was managed by local police.

Bade disagreed, saying that the ICE facility in Portland was forced to close for almost a month from June 13 to July 7.

The facility only re-opened because of a surge of Federal Protective Services officers, apparently bolstering the administration’s argument that it needed the Guard troops in part because there were only a limited number of such officers available to respond to incidents across the country, Bade said.

“Are those not facts that are relevant for the president to determine the threat?” she asked. “And the record includes ... at least two attempts to burn the building down.”

Disagreement on the facts

Much of the discussion centered on the facts of the case as determined by Immergut, the district judge, who heard the original case and issued the two temporary restraining orders against deploying the Guard.

Generally, appellate courts do not overrule decisions based on facts as determined by a lower court, said John Yoo, a conservative legal scholar who teaches at UC Berkeley Law. But if the panel believes that Immergut was clearly erroneous in concluding that the Portland protests were small and could be handled by local police, it might rule against her in such a case, he said.

McArthur, arguing for the White House, did not dispute the basic facts on the ground — but he said that the judges could still decide that Immergut was wrong in the way she applied the law to those facts, rather than being incorrect about the facts themselves.

It was not immediately clear when the judges would rule, or on the immediate impact of their ruling on the case itself.

The two temporary restraining orders issued by Immergut expire within two weeks of being issued, and the court might not have its decision before they do.

In addition, their ruling will directly affect only Immergut’s first order, although McArthur said the judge would likely cancel her second order as well should the 9th Circuit rule in Trump’s favor. If she didn’t, he said, the government would appeal that one as well.

In Illinois, arguments before District Judge April Perry had concluded; lawyers for both sides were ordered to return to court late in the afternoon.

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