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Updated: 5:44 pm October 24. Originally published 2:04 pm October 24.
The 9th Circuit Court of Appeals has paused any deployment of National Guard troops to Portland until Tuesday evening, October 28. The order was issued as a decision was pending from a different court on whether out-of-state troops could deploy to Portland.
In its surprise order, the 9th Circuit Court effectively eliminated the need for a district court ruling, since the temporary restraining order in question is set to expire on Wednesday. Attorneys for the federal government had asked for the order to be lifted immediately, and a hearing on the matter was held Friday morning.
Friday’s news comes as Oregon leaders and residents are waiting to find out if that same Court will reconsider a decision issued earlier this week that allows activation and deployment of Oregon National Guard troops. The Court’s latest order effectively puts a temporary freeze on that ruling.
“This administrative order expresses no views on the merits of this matter and is not a reconsideration of the earlier stay order,” Friday’s legal filing states.
“This decision gives the court time to fully consider the serious constitutional questions at stake,” Oregon Attorney General Dan Rayfield said in a statement released by his office late Friday. “It also ensures there won’t be a federal deployment while that process plays out—an important step in protecting Oregonians’ rights and keeping our communities safe.”
It’s unclear when the 9th Circuit Appeals Court will decide whether to re-hear the Oregon case. Two days ago, the Court decided not to re-hear a similar case over National Guard deployment in California.
During Friday’s hearing, Yaakov Roth, an attorney for the US Department of Justice, argued that US District Judge Karin Immergut should dissolve a temporary restraining order shed granted on October 5, in light of the 9th Circuit ruling.
“I don’t see any basis to deprive the 9th Circuit’s stay order … by keeping the overlapping second [restraining order] in place,” Roth said. “I’m not sure how much more clear the court could be about the fact that we had met our burden to show we were entitled to a stay of the order.”
But something caught Immergut’s attention as she heard arguments from Oregon’s attorneys, as well as from the DOJ.
Prior to Friday morning’s hearing, Rayfield submitted a brief with the 9th Circuit Court that showed DOJ attorneys had submitted false information to the courts that inflated the strain on the federal government’s law enforcement resources caused by having to staff the Portland protests. From the beginning, the Trump administration argued that anti-ICE protests in Portland were out of control, and caused the federal government to have to redirect 115 Federal Protective Services (FPS) agents to Portland, to help protect the ICE building from protesters. They used it as justification for needing the help of National Guard troops.
Rayfield submitted evidence showing the number of FPS agents working on the ground in Portland never exceeded 31 at any given time.
“This Court must act swiftly to prevent defendants from attempting to benefit from their own material mistake and deploy military forces to peaceful civilian streets, contravening the rule of law and our nation’s history and traditions,” Rayfield wrote in the brief, which was submitted to the appellate court in hopes of triggering a second review of the case.
Immergut asked about this filing at the Ninth Circuit, in which the plaintiffs assert that we now know there were never more than 31 — not 115 — Federal Protection Service officers sent to Portland at any time. storage.courtlistener.com/recap/gov.us…
— Chris Geidner (@chrisgeidner.bsky.social) October 24, 2025 at 10:32 AM
The back-and-forth legal hearings in both district and appellate court stem from a lawsuit filed by the state of Oregon against the Trump administration, after President Trump announced on social media that he was ordering Oregon National Guard troops to Portland, to protect the ICE facility amid ongoing protests. Defense Secretary Pete Hegseth issued orders to activate the Guard the next day.
Rayfield’s office responded by requesting a temporary restraining order (TRO) to block the deployment, which was granted by Judge Immergut in early October. In an attempt to circumvent Immergut’s ruling, Trump announced he would federalize California National Guard troops and send them to Oregon. That decision was immediately blocked by Immergut as well.
Oregon’s case against the federal government landed in the 9th Circuit Court of Appeals, after the US Department of Justice appealed Judge Immergut’s initial restraining order regarding the Oregon National Guard. The appeal didn’t include any request to act on the second TRO regarding out-of-state troops, meaning the scope of the appeal was focused only on whether Oregon’s National Guard could be activated without the governor’s consent. Nevertheless, Friday’s temporary order prohibits troops from any state from being activated just yet.
Where things stand
On Monday October 20, a panel of three 9th Circuit judges announced a 2-1 ruling that sided with the Trump administration, paving the way for activation and deployment of the Oregon National Guard. Judges Ryan D. Nelson and Bridget S. Bade concluded the ongoing protests at Portland’s ICE facility have jeopardized the safety of DHS agents to a degree that now requires the help of military forces.
Rayfield, along with Oregon Governor Tina Kotek and Portland Mayor Keith Wilson, blasted the appeals court’s decision, vowing to continue fighting the Trump administration in court.
David Janovsky is a constitutional expert and senior policy analyst at the Project on Government Oversight. He says even though there’s been a lot of movement on the case in Oregon and similar litigation in California, it’s still early in the legal process.
“All the stuff that’s made it to the 9th Circuit so far has been challenges to the judges’ initial temporary orders, blocking these deployments while the actual court case plays out,” Janovsky says, noting the lawsuits have yet to be resolved.
“It’s possible California or Oregon could come back and win later in the litigation,” he added.
Oregon’s case against the Trump administration is slated to start in district court on Wednesday.
Critics of the 9th Circuit’s decision, including dissenting Judge Susan P. Graber, warned that Monday’s ruling was a dangerous exercise in federal overreach that ignored the facts about Portland’s ongoing anti-ICE protests.
Graber, who began her legal career in Oregon, not only laid out a case for why the deployment shouldn’t be granted, but said the ruling “erodes constitutional principles” including a state’s right to control its militia, and the 1st Amendment right to freely assemble and exercise free speech.
“In the statute invoked here, Congress has authorized the President to call up the National Guard only to repel a foreign invasion, quell a rebellion, or overcome an inability to execute the laws. Consequently, no legal or factual justification supported the order to federalize and deploy the Oregon National Guard,” Graber wrote. She called the opposing judges’ ruling “absurd” citing protesters’ “well-known penchant for wearing chicken suits, inflatable frog costumes, or nothing at all when expressing their disagreement with the methods employed by ICE.”
Graber urged her colleagues in the 9th Circuit to take up a review of the case with a larger panel of judges.
Almost immediately after the ruling, a senior appellate judge called for a vote on whether the case should be reconsidered “en banc” meaning by a full panel of judges. Appeals Court cases are typically decided by three judges, as was the case with Oregon’s lawsuit.
The 9th Circuit Court has not yet announced whether it will re-hear the appeal in the Oregon case.
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Courtney Vaughn
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