On Thursday morning, three judges from the U.S. Court of Appeals for the Ninth Circuit — two of them appointees of President Trump — will hear arguments on whether the president has unfettered authority to deploy troops even to U.S. cities or whether Mr. Trump has become “untethered to the facts.”
At issue is the lawfulness of Mr. Trump’s effort to deploy National Guard troops to Portland, Ore., which the White House on Tuesday called “a wasteland of firebombs, beatings, and brazen attacks,” but which another Trump-appointed judge, Karin Immergut, said was nothing of the sort.
Judge Immergut of the Federal District Court for the District of Oregon temporarily blocked Mr. Trump from deploying troops to Portland, ruling this weekend that he had most likely exceeded his authority under federal law. That law allows the president to call up the National Guard if “there is a rebellion or danger of a rebellion.”
In a blistering opinion, Judge Immergut wrote that Mr. Trump’s assessment of the situation on the ground “was simply untethered to the facts.”
In their appeal, the government’s lawyers leaned on a Supreme Court case from 1827 to argue that the courts lack the power to review Mr. Trump’s decisions about when to deploy the National Guard. Questioning “the commander-in-chief’s military judgments,” they wrote, citing the 1827 decision, “is something district courts lack the authority and competence to do.”
The appeal will play out against escalating rhetoric from Mr. Trump, who has said that American cities are “war zones” and called for Democratic officials to be jailed. As it moves upward through the appeals process, the case may also prove to be a test for the Supreme Court, which in its interim rulings has largely given way to Mr. Trump’s efforts to expand the power of the presidency in other areas, including withholding of congressionally appropriated spending and the power to fire the heads of independent agencies.
The question of whether the president can proclaim that a rebellion is underway and send troops into U.S. cities — “dangerous cities” to be used as “training grounds for our military,” in his words — challenges long-held norms and laws that severely limit the use of military for domestic missions.
Also looming in the background of the case is Mr. Trump’s frequent discussion of invoking the Insurrection Act, which would be the first use of the law since the 1992 riots that broke out in Los Angeles after police officers who had severely beaten Rodney King were acquitted. That move would expand both his legal authorities and the role that troops could serve on the ground. It would also almost certainly lead to another round of legal challenges.
In an earlier case concerning National Guard deployments this year in Los Angeles, a panel from the same appeals court found that the courts could review Mr. Trump’s assessments of the facts on the ground, though they would have to show considerable deference.
The government’s filings detail what it called violence directed at Immigration and Customs Enforcement officers, including launching of fireworks, throwing of rocks and firing of paintballs during clashes at an ICE facility in June. Those characterizations stand in contrast to internal documents from the Department of Homeland Security that called the protests in Portland in September “low energy.”
The Justice Department also argues that violent incidents in other parts of the country, including an attack by a sniper on an ICE facility in Dallas, should have a bearing on the case.
The three judges hearing the case are Judge Susan P. Graber, a former justice on the Oregon Supreme Court who was nominated to the bench by President Bill Clinton, as well as Judge Ryan D. Nelson and Judge Bridget S. Bade, both nominees of Mr. Trump.
Judge Nelson comes from an establishment Republican background. He worked at the Justice Department and the Office of Management and Budget under President George W. Bush.
Judge Bade, a former prosecutor and magistrate judge, was a clerk for Judge Edith Jones of the highly conservative U.S. Court of Appeals for the Fifth Circuit and appeared on one of Mr. Trump’s first-term shortlists of potential Supreme Court nominees. In a 2020 dissent written near the end of Mr. Trump’s first term, she said that ICE should be able to continue using databases to identify potential detainees, despite concerns raised by her colleagues that they sometimes wrongly flagged U.S. citizens. Finding otherwise, she wrote, “opens the door to sweeping challenges to basic tools of immigration enforcement.”