Summary
The Ninth Circuit amended its October 28, 2025 order granting rehearing en banc in State of Oregon v. Trump, appended statements by Judges Bybee and Tung, and vacated the panel opinion published at 157 F.4th 1013. Judge Bybee’s statement discusses the Domestic Violence Clause, the Militia Clause, and constitutional limits on presidential deployment of National Guard forces into a state without its consent.
Topics
Practice areas
Questions Presented
- Whether the case should be reheard en banc.
- Whether the Ninth Circuit's previously published opinion should be vacated upon the grant of rehearing en banc.
Holdings
- Upon the vote of a majority of nonrecused active judges, the case is reheard en banc pursuant to Federal Rule of Appellate Procedure 40(c) and Circuit Rule 40-3.
- The prior opinion published at 157 F.4th 1013 (9th Cir. 2025) is vacated.
Key quotations
“Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 40(c) and Circuit Rule 40-3.” (at 1)
“The order published at 157 F.4th 1013 (9th Cir. 2025), is vacated.” (at 1)
“But otherwise, the President may not deploy the Militia without state consent.” (at 48)
“The import of that history is clear: whereas Congress had previously experimented with requiring a judge to certify the existence of an exigency to enable the President to call forth the militia, Congress now vests the President with exclusive discretion in determining whether that exigency exists.” (at 4)
Factual background
The underlying dispute concerns the President's federalization and proposed deployment of National Guard units to Portland over Oregon's objection under 10 U.S.C. § 12406. The states contend that the deployment implicates constitutional limits on federal military intervention in domestic affairs, while the federal defendants contend that the President possessed statutory authority to determine that regular forces were insufficient to execute federal law.
Procedural history
Oregon and Portland challenged the federal deployment of National Guard troops to Portland in the United States District Court for the District of Oregon. The Ninth Circuit previously issued an opinion published at 157 F.4th 1013 (9th Cir. 2025). A majority of nonrecused active judges voted to rehear the case en banc, and this amended order appended statements by Judges Bybee and Tung and vacated the prior opinion.