Summary
The Ninth Circuit grants the federal defendants’ emergency motion for a stay pending appeal of a district court temporary restraining order concerning the federalization of 200 Oregon National Guard members. The court concludes that the temporary restraining order has the practical effect of a preliminary injunction and that the President likely acted within his statutory authority under 10 U.S.C. § 12406(3). The order addresses appellate jurisdiction and the stay factors, with a concurrence by Judge Ryan D. Nelson and a dissent by Judge Susan P. Graber.
Topics
Practice areas
Questions Presented
- Whether the Ninth Circuit had jurisdiction to consider defendants' motion for a stay pending appeal from a temporary restraining order.
- Whether the TRO had the practical effect of a preliminary injunction and was therefore subject to appellate review.
- Whether the President's determination under 10 U.S.C. § 12406(3) that he was unable with regular forces to execute federal laws reflected a colorable assessment of the facts and law within a range of honest judgment.
- Whether defendants were likely to succeed on plaintiffs' ultra vires and Tenth Amendment claims.
- Whether the remaining stay factors favored granting a stay.
Holdings
- The Ninth Circuit had jurisdiction under the All Writs Act to consider the motion for a stay pending appeal, and the TRO had the practical effect of a preliminary injunction because it followed an adversary hearing, was fully contested, and extended beyond the presumptive fourteen-day period in Federal Rule of Civil Procedure 65.
- The Ninth Circuit's published conclusions in Newsom concerning justiciability, deference to the President's § 12406 determination, and the meaning of § 12406(3) circumscribed the panel's analysis.
- Defendants were likely to succeed on the merits because the President's determination that he was unable with regular forces to execute federal laws reflected a colorable assessment of the facts and law within a range of honest judgment.
- Defendants were likely to succeed on plaintiffs' Tenth Amendment claim because Congress authorized the President's federalization of the National Guard under § 12406(3).
- Irreparable harm, injury to other parties, and the public interest favored defendants because the federal government had an interest in protecting federal personnel and property and faithfully executing federal law, while plaintiffs' asserted injuries depended on their unsuccessful merits arguments.
Key quotations
“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.”” (at 1)
“In sum, we concluded that courts may review the President’s determination “to ensure that it reflects a colorable assessment of the facts and law within a ‘range of honest judgment.’”” (at 20-21)
“For these reasons, we GRANT Defendant’s motion for a stay pending appeal.” (at 36)
Factual background
Protests and disturbances occurred for months at the Lindquist Federal Building, an ICE facility in Portland, including assaults on federal officers, property damage, attempted incursions, incendiary devices, threats, and interference with facility operations. The facility was closed for more than three weeks, and federal protective and immigration personnel from other regions were deployed to maintain security. After the Governor rejected a request to deploy the Oregon National Guard in a non-federalized status, the President directed the federalization of 200 Guard members for 60 days under 10 U.S.C. § 12406.
Procedural history
Oregon, the City of Portland, and the Portland Police Bureau challenged the President's September 28, 2025 order federalizing 200 Oregon National Guard members under 10 U.S.C. § 12406. The District of Oregon issued a temporary restraining order on October 4, 2025, concluding that plaintiffs were likely to succeed on their ultra vires and Tenth Amendment claims. Defendants appealed the first TRO and sought a stay; the district court later issued a second TRO concerning deployment of federalized National Guard members, which defendants did not appeal.