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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 Tuesday.
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.”
The White House did not immediately respond to a request for comment.
