Appeals Court Says Troops May Remain Under Federal Control but Not Deploy to Portland, for Now

Seeking to preserve the “status quo” while it ponders the deeper legal questions before it, a federal appeals court ruled on Wednesday that federalized National Guard members may remain under President Donald Trump’s control for now, but they still may not be deployed into Portland.

The order, by a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, offers temporary clarity on whether the Pentagon could retain control of the federalized troops even after a district judge temporarily blocked the mission to Portland for which they had been mobilized.

Guard members from Oregon and California were brought into federal service against the wishes of the states’ governors, who normally are their commanders in chief. After court orders blocking the mobilization this weekend, those troops, who as of Tuesday were being quartered at bases in the greater Portland area, remained in limbo while the appeals court considered the situation.

It was in that murky legal space that Oregon Gov. Tina Kotek told a the leader of the U.S. Northern Command on Tuesday to demobilize the guard members that had been federalized for the mission to Portland. Citing the lower court restraining orders, which found Trump lacked the legal basis to take command of the troops for the mission, she said the Trump administration should send the troops home.

The Pentagon and the U.S. Northern Command, which control the federalized troops, did not respond to questions from WW on Tuesday about their plans for the guard members, or the legal authority under which they were being kept in federal service.

But the appellate court ruling gives the Trump administration legal cover to keep those troops under its command for now, if not actually deploy them on the mission.

“The effect of granting an administration stay preserves the status quo in which National Guard members have been federalized but not deployed,” wrote the appeals court in its order.

An administrative stay, the court explained, is intended to minimize harm while an appellate court deliberates, and lasts no longer than necessary to make an intelligent decision on the motion before it.

Oral arguments are set for Thursday morning.

In a statement, Kotek said the order, crucially, means the Trump administration may still not send a military force into Portland.

“The facts on the ground have not changed,” Kotek said. “There is no need for military intervention in Oregon. There is no insurrection in Portland. No threat to national security. Oregon is our home, not a military target.”

In an email, White House spokesperson Abigail Jackson called the court order a significant win for the Trump Administration.

It “reaffirms our position that the President exercised his lawful authority to protect federal officers and assets following unmitigated violence against them,” she wrote. “We look forward to full victory on the issue in the near future.”

Underlying the dispute is Trump’s intention to deploy guard members to secure the U.S. Immigration and Customs Enforcement facility on Portland’s South Waterfront, which has been peppered with protests since June. U.S. Secretary of Homeland Security Kristi Noem, who visited the facility Tuesday, continued today to escalate her rhetoric around a crackdown on antifascist activists in the city, describing them as terrorists.

But an exchange published by Portland Mayor Keith Wilson today suggests he and Homeland Security officials have discussed sidestepping the standoff at the ICE facility—by the city taking over the lease of the building, and the immigration agency moving its operations elsewhere.

In a letter to DHS general counsel James Percival, Wilson wrote that Noem’s special advisor, Corey Lewandowski, had raised that possibility.

“Finally, as Senior Advisor Lewandowski broached, the City of Portland is open to negotiations to purchase this facility or take over the remaining lease,” Wilson wrote. “Given the operational challenges and expense this facility likely demands, we believe this may be a mutually beneficial solution in the best interests of all parties and stakeholders.”