“\u201cIn Portland, protests have endured for months, and the [Portland police have] been either unwilling or unable to respond to the disturbances,\u201d the appeals judges wrote.
Nelson and Bade said Immergut relied too heavily on Trump\u2019s social media commentary \u2014 calling Portland \u201cwar ravaged\u201d \u2014 to conclude that his deployment was \u201cuntethered\u201d from reality, noting that the unrest had required a surge of law enforcement from the Federal Protective Service to contain.<\/p>\n\n\n\n
The 9th Circuit panel majority repeatedly cited a similar decision issued by three colleagues permitting Trump\u2019s deployment of Guard troops to Los Angeles earlier this year. In the ruling, the judges said Trump is owed great deference in determining whether civil unrest reaches a point in which the military may be called in for support.<\/p>\n\n\n\n
The majority said Immergut used a faulty definition of rebellion in her decision, but the appeals judges did not address whether Trump had a valid claim that such unrest was underway when he sent in the Guard. (They did say they were not endorsing Trump\u2019s description of Portland as a \u201cwar zone.\u201d)<\/p>\n\n\n\n
The appeals panel\u2019s dissenting judge, Clinton appointee Susan Graber, called the majority\u2019s decision \u201dabsurd,\u201d pleaded with her 9th Circuit colleagues to quickly reverse it and urged the public to \u201cretain faith in our judicial system for just a little longer.\u201d<\/p>\n\n\n\n
\u201cWe 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\u2014sometimes breaking\u2014the truth,\u201d Graber wrote. \u201cBy 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.\u201d<\/p>\n\n\n\n
Graber emphasized that even though there had been unruly protests in Portland in June, they had largely subsided and by September routinely featured 30 or fewer demonstrators and virtually no violence or requests for local police assistance.”<\/p>\n\n\n\n