The 9th Circuit Court of Appeals has stepped into the fight over President Trump’s attempt to send National Guard troops into Portland, Oregon. A lower court had temporarily blocked the deployment, and while the 9th Circuit lifted part of that order, it left most of the restrictions in place. For now, the federal government may federalize Oregon’s Guard units – shifting them under presidential command – but cannot deploy them into Portland until further review.
Arguments Before The 9th Circuit
Oregon and Portland officials argued that no legal or factual basis exists for such a deployment. They pointed out that protests in Portland, while tense, have not amounted to an insurrection or rebellion. They also argued the state already has adequate law enforcement capacity, making federal intervention unnecessary.
The federal government countered that Guard forces were needed to protect federal facilities and agents, especially ICE offices, and argued courts should defer to the president’s assessment of threats. During oral arguments, two Trump-appointed judges suggested courts may lack authority to second-guess presidential judgments on deployments. Judge Ryan Nelson remarked, “The president gets to direct his resources as he deems fit, and it seems a little counterintuitive to me that the city of Portland can come in and say ‘no’.”
The Legal Framework
The Trump administration has leaned on 10 U.S.C. § 12406, which is different from the Insurrection Act. This statute allows the president to federalize state National Guard units to suppress insurrection, repel invasion, or enforce federal law. Critics argue the conditions in Oregon do not remotely qualify, and that even federalized Guard troops remain bound by the Posse Comitatus Act, which limits the use of military forces in civilian law enforcement absent explicit congressional authorization.
The White House has not formally invoked the Insurrection Act, which is the statute presidents traditionally rely on to use troops domestically. The law permits deployment in cases of widespread rebellion, violence, obstructing federal law, or the denial of constitutional rights. Oregon officials argue that no such conditions exist and that skipping the Act while attempting to deploy troops is unconstitutional.
Underlying the fight is the tension between federal power and state sovereignty. Oregon contends that federalizing its Guard without consent undermines the Tenth Amendment’s reservation of powers to the states, while residents’ rights could be endangered under the Fourteenth Amendment’s Due Process and Equal Protection Clauses if military forces are used against civilians without lawful cause.
What Counts As A Rebellion?
Legally, the term “rebellion” comes up in both 10 U.S.C § 12406 and the Insurrection Act. It refers to an organized, violent resistance against federal authority – something more than sporadic protests or unrest. Historically, presidents have invoked it when civil authority collapsed or federal law could not be enforced:
- Little Rock, 1957: President Eisenhower used the Insurrection Act to send troops to enforce school desegregation after the Arkansas governor defied federal law.
- Detroit, 1967: President Johnson used the Act when riots overwhelmed state forces
- U.S. Virgin Islands, 1989: President George H.W. Bush invoked the act to stop looting after Hurricane Hugo
- Los Angeles, 1992: President George H.W. Bush sent federal forces at California's request during the Rodney King riots.
In each of these cases, federal courts, including those within the 9th Circuit, did not block deployment – largely because state authority had either broken down or invited federal help. By contrast, protests and unrest that fall short of open rebellion have not been treated as sufficient to invoke these powers.
Support For Deployment
At the same time, many residents and business owners in Portland support a Guard presence. They argue the protests are not peaceful and often involve property destruction and assaults on law enforcement and civilians. Supporters believe the Guard could provide stability in neighborhoods where violence has persisted, and that the federal government has an obligation to step in when state leadership refuses.
Federal officials also stress the need to protect federal facilities that have been frequent targets. From this perspective, Guard forces are not replacing local police but rather reinforcing them against organized groups.
The Antifa Question
The Trump administration has cited Antifa repeatedly as a justification. In 2020, the Department of Justice announced it would treat Antifa-related activity as domestic terrorism, although there is no statutory mechanism to designate it as a formal terrorist organization under U.S. law.
Supporters of deployment argue that Antifa networks have fueled violent clashes, vandalism, and intimidation, and that ignoring them allows chaos to spread. Critics respond that the “Antifa” label has often been applied too broadly, sweeping in legitimate protest activity. While the courts, including the 9th Circuit, have avoided endorsing the government’s characterization, the Antifa issue remains central to the administration’s public rationale.
In September of 2025, President Trump signed an executive order designating Antifa as a domestic terrorist organization. The order calls on federal agencies to “investigate, disrupt, and dismantle any and all illegal operations” tied to Antifa or those claiming to act in its name. Critics note there is no statutory authority under U.S. law to formally designate a domestic ideology or movement as a terrorist organization, raising First Amendment questions.
What This Means Going Forward
The 9th Circuit’s decision is technically a partial win for both sides – temporarily. The administration may federalize the Oregon Guard, but any troop presence in Portland remains blocked. That balance will be tested again soon: the 9th Circuit has scheduled additional hearings to determine whether the block on deployment should remain in place during the ongoing litigation. Whichever way the court rules, the losing side is expected to push for Supreme Court review, setting up a broader fight over how far presidential authority extends and whether courts can restrain executive claims of inherent authority to use military forces domestically.
