The Scope of the 9th Circuit’s Deference in Oregon v. Trump

When the Ninth Circuit overturned Oregon District Court Judge Karin Immergut’s decision in Oregon v Trump, you might have rejoiced, but did you read the court’s decision? As I wrote before, this hinges on a specific fact of whether a surge of civilian federal law enforcement quelled the undisputable violence at the Portland ICE facility before the President deployed the National Guard.

Judges Bridget Bade and Ryan Nelson, two out of the three-judge panel, decided to apply deference to the executive branch’s assessment of this fact. They wrote:

After considering the record at this preliminary stage, we conclude that it is likely that the President lawfully exercised his statutory authority under 10 U.S.C. § 12406(3), which authorizes the federalization of the National Guard when “the President is unable with the regular forces to execute the laws of the United States.” The evidence the President relied on reflects a “colorable assessment of the facts and law within a ‘range of honest judgment.'”

This is an important case to watch closely. The level of deference to executive power here will eventually apply to radical left presidents too.

Eric Shierman lives in Salem and is the author of We were winning when I was there.