20 October 2025/SF News/Jay Barmann (SFist.com)
The nightmare of Donald Trump wielding the National Guard as his personal army in cities where he claims, without evidence, that this intervention is needed, is going to continue for now, after a decision filed Monday by the Ninth Circuit Court of Appeals.
Two Trump appointees on the Ninth Circuit Court of Appeals have ruled in favor of the Trump administration, overrulling another Trump-appointed judge in federal court in Portland, in the case pertaining to the deployment of National Guard troops to protect Portland’s lone federal building.
Despite the small and inconsequential nature of the protest that has been happening over ICE activity in Portland, two of the three Ninth Circuit judges ruling on the case found that the deployment was justified because “state and local law enforcement have been unable or unwilling to assist the government’s efforts to protect federal personnel and property.”
The judges note of the protests around the country that “While many of these events have been peaceful, others have been violent and even deadly,” pointing to the shooting that occurred outside an ICE facility in Dallas last month.
The 93-page decision goes on to cite multiple incidents in Portland in which protesters have allegedly acted aggressively toward federal agents.
The judges also referred heavily to the earlier decision by the Ninth Circuit to lift a temporary restraining order issued by a lower court judge regarding the National Guard deployment in Los Angeles, a case known as Newsom v Trump. In that ruling, the appellate court found that the president operated within his authority to federalize the National Guard, but they noted that when troops are deployed for no apparent reason, future moves by the president could still be subject to the court’s review.
The two Trump-appointed judges in this case are Judges Ryan Nelson and Bridget Bade. They cite that the “threat to federal personnel and property, and the resulting inability to execute federal laws” are likely sufficient to support the deployment of federal troops as the President sees fit.
In dissent, the third judge on the panel in this case, Clinton appointee Judge Susan Graber, writes that her colleagues’ ruling “erodes core constitutional principles, including sovereign States’ control over their States’ militias and the people’s First Amendment rights to assemble and to object to the government’s policies.”
Graber points to Trump’s social media posts that refer to Portland as “war ravaged,” specifically at a time when the protesters numbered between 10 and 20 people on some days.
“The Founders recognized the inherent dangers of allowing the federal executive to wrest command of the State militia from the States,” Graber writes.
She further adds, “We 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 — sometimes breaking— the truth. By 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.”
And, Graber calls on a larger panel at the Ninth Circuit to vacate the decision of her collegaues before troops can be deployed to Portland, noting the lower court’s assessment that by adding federal troops to the situation, it was only likely to make it more dangerous and to aggravate the protesters further.
This all bodes terribly for Trump’s latest threat to send troops into San Francisco next, despite the fact that there is no ongoing protest or “insurrection” happening outside a federal facility here — though there have been occasional gatherings outside an ICE facility downtown since June.
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