Trumpified 9CA panel stays injunction against Trump’s use of troops in Portland
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Both judges in the majority of the panel are Trump nominees. Bridget Bade wrote a “normal” right-authoritarian opinion, while Ryan Nelson’s concurrence advocated for the presidential power to use troops domestically that is effectively unbound by either the legislative of judicial branches:
Judge Nelson, a Trump appointee, amps up his campaign for a Supreme Court seat with a concurrence asserting that the president can, in effect, deploy the National Guard for any reason, regardless of statutory restrictions, because his decision is unreviewable. An astoundingly dangerous argument.
[image or embed]— Mark Joseph Stern (@mjsdc.bsky.social) Oct 20, 2025 at 12:30 PM
A presumably well-compensated editor at the New York Times said this weekend he could not fathom where the “No Kings” protest theme would come from. True story!
Judge Graber, a Clinton nominee on senior status, sums of the “law still applies” position in dissent:
In the weeks preceding the President’s September 27 social media post proclaiming that Portland was “War ravaged” and authorizing Secretary Hegseth to deploy federalized Oregon National Guard members, demonstrations in Portland were non-disruptive and small. Notwithstanding the turbulent events that had occurred several months earlier, the record contains no evidence whatsoever that, on September 27, Immigration and Customs Enforcement (“ICE”) was unable either to protect its Portland facility or to execute the immigration laws it is charged with enforcing. But, in the statute invoked here, Congress has authorized the President to call up the National Guard only to repel a foreign invasion, quell a rebellion, or overcome an inability to execute the laws. Consequently, no legal or factual justification supported the order to federalize and deploy the Oregon National Guard. Given Portland protesters’ well-known penchant for wearing chicken suits, inflatable frog costumes, or nothing at all when expressing their disagreement with the methods employed by ICE, observers may be tempted to view the majority’s ruling, which accepts the government’s characterization of Portland as a war zone, as merely absurd. But today’s decision is not merely absurd. It erodes core constitutional principles, including sovereign States’ control over their States’ militias and the people’s First Amendment rights to assemble and to object to the government’s policies and actions. I strenuously dissent.
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We have come to expect a dose of political theater in the political branches, drama designed to rally the base or to rile or intimidate political opponents. We also may expect there a measure of bending—sometimes breaking—the truth. By design of the Founders, the judicial branch stands apart. We rule on facts, not on supposition or conjecture, and certainly not on fabrication or propaganda. I urge my colleagues on this court to act swiftly to vacate the majority’s order before the illegal deployment of troops under false pretenses can occur. Above all, I ask those who are watching this case unfold to retain faith in our judicial system for just a little longer.