The federal judge overseeing a speedy trial in Oregon’s and the city of Portland’s lawsuit against the federal government will now need to make a speedy decision.
U.S. District Court Judge Karin Immergut, a Trump appointee, said she will decide by Sunday whether the federal government violated Title 10 of the U.S. Code and the 10th amendment by federalizing and attempting to deploy Oregon and California national guard troops to Portland over the objections of each state’s governor.
Each of these issues deals with the balance of state and federal power — particularly related to authority over policing within states — and the extent of presidential power over the U.S. military.
The decision would also likely determine whether or not the 400 currently federalized Oregon and California Guard troops sitting in waiting since early October at two military camps in Oregon can be sent home. The state of California is also a party to the lawsuit.
On Friday, federal lawyers would not agree to giving Immergut more time to deliberate before the expiration of one of her temporary restraining orders barring National Guard troops from any state from being deployed to Portland. That restraining order was renewed on Oct. 15, and expires on Sunday at 11:59 p.m. Typically, temporary restraining orders can only be extended once. In response, Immergut said she would reach a decision in the case by Sunday night.
Immergut said that the case was unlike any she had overseen, given the speed and sheer volume of evidence submitted. It’s been just more than a month since President Donald Trump announced on social media that he would deploy troops to “war ravaged” Portland. Since then, he has federalized and attempted to deploy hundreds of National Guard from Oregon, California and Texas, and has been temporarily blocked by Immergut and the 9th Circuit Court of appeals.
It’s likely Immergut’s final decision in the case will be immediately appealed to the 9th Circuit Court of Appeals. A related case involving Trump’s attempted deployment of Texas National Guard troops to Illinois is sitting on the U.S. Supreme Court’s expedited schedule, or “shadow docket,” and a decision won’t be reached until at least Nov. 17, according to the court’s most recent request for briefs.
Final day of trial
The trial’s third and final day was reserved for interviews with a senior National Guard official and regional Immigration and Customs Enforcement Director Camilla Wamsley, as well as closing arguments from both sides.
Maj. Gen. Timothy Rieger, acting vice chief of the administrative office of the National Guard, testified that state Guard troops are federalized and deployed often for all manner of domestic missions, but especially for natural disasters or to aid with border protection. During his 30 years of service, Rieger said he had never seen National Guard from one state federalized and deployed to another state due to civil unrest, nor had he seen Guard deployed to events of civil unrest by any leader other than the state’s governor. As far as he knew, Trump’s attempted Guard deployments to Portland, Los Angeles and the Chicago area had not been reviewed by lawyers before they were ordered in recent months.
Rieger, who was responsible for communicating to Oregon’s National Guard leadership that Gov. Tina Kotek could choose to deploy the Guard with federal dollars or that the federal government would within 12 hours take over Guard from the state, said he had no direct knowledge of the events on the ground at the Portland ICE facility that was the site of protests since June.
Any information he had came from Trump’s Sept. 27 social media post, from conversations with officials at the Department of Defense and from the media, he said.
He said it was his understanding that more Guard would be needed in part because the Department of Homeland Security was preparing to send more ICE agents to Portland to carry out deportation activities and who would need protection.
Wamsley, who has been in her role as regional ICE director for about seven months, confirmed that she received orders to double the number of arrests per day from an average of 15 to 30 but did not have enough staff to do so.
Whether the federal government has the security it needs to protect the ICE building and officers, and to carry out immigration enforcement, has been a key question in Oregon’s lawsuit against Trump and has been at the center of the bulk of questioning from both sides.
Closing arguments
Lawyers for the state of Oregon said they had established that there is no rebellion in Portland that warrants Guard deployment, that the federal government could deploy thousands of other law enforcement officers from other agencies to the Portland ICE facility rather than National Guard troops if needed, and that the president made the decision to deploy troops to Portland in bad faith and without an honest assessment of the facts.
Lawyers for the federal government relied on a central argument they’ve made in similar cases in California and Illinois — that the perceived need to federalize and deploy National Guard troops to any American city is solely at the discretion of the president and not something to be scrutinized by the court.
“Everyone agrees there’s been violence. There was a riot. That agitators have placed items in the driveway of the ICE building. All questions are ones of degree,” U.S. Department of Justice lawyer Eric Hamilton said. “All of these are for the democratically elected president to solve.”
Hamilton further argued that because of Oregon’s sanctuary laws, the Portland Police Bureau has not and will not provide the level of protection that ICE officers and other federal officers at the ICE facility need in order to conduct their business.
“Portland is singling out the ICE building for disfavored treatment because they are carrying out national laws that Oregon disagrees with,” Hamilton said.
Senior assistant Oregon attorney general Scott Kennedy argued that “Oregon has a sovereign right not to have its officers commandeered in the execution of federal laws,” under the 10th Amendment of the Constitution and that the federal government, cannot “hold it against the state that local and state law enforcement don’t help enforce immigration laws.”
Furthermore, Kennedy argued that protests at the Portland ICE facility were small before Trump declared he’d send troops, and that Trump has now caused the emergency he seeks to address with the National Guard.
“This is, I think, one of the most significant infringements on state sovereignty in Oregon and I think California’s history,” Kennedy said in closing.
Oregon Capital Chronicle
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