Emergency Hearing on Sending California and Texas National Guard to Oregon
Published by The Lawfare Institute
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On Sunday, Oct. 5, Judge Karin Immergut issued a second order blocking the Trump administration from sending federalized national guard troops to Portland, Oregon.
The ruling followed an unusual weekend hearing held late on Sunday evening. Just one day prior, on Saturday, Oct. 4, the judge had ruled that Trump lacked a lawful basis for federalizing the Oregon national guard under 10 U.S.C. § 12406. The next day, in an apparent effort to circumvent the judge’s ruling, the Trump administration sought to deploy federalized troops from California and Texas to the state of Oregon. That same day, Judge Immergut said the administration’s conduct was in “direct contravention” of her earlier decision prohibiting federalization of the Oregon guardsmen.
Lawfare Senior Editor Anna Bower covered the hearing as it happened. Read Bower’s report by clicking on the button below or by viewing her thread on Bluesky here.
Liveblog
HAPPENING NOW: Emergency hearing before Judge Karin Immergut on Trump's effort to circumvent her temporary restraining order re: Oregon national guard deployment. I plan to listen in for @lawfaremedia.org. Follow along (court remote access technology permitting...) ⬇️🧵
A quick TL;DR for those who haven’t been following along over the past few hours. Yesterday, a Trump-appointed judge blocked the president’s call-up of Oregon’s National Guard. Trump tried to circumvent that ruling by sending already-federalized California national guard troops to Portland.
Oregon then filed a motion for a second restraining order, and the state of California joined Oregon's suit. Additionally, the government filed a notice of appeal to the 9th Circuit with respect to the first injunction issued by Immergut.
Judge Immergut then set a hearing for 7 pm PT/10 pm ET regarding the second motion for a restraining order. There's a call-in line for the hearing, but a pre-recorded message is currently repeating "Waiting for your host to join" over and over again. TBD if we'll get remote access to the hearing.
Meanwhile, Hegseth issued a memorandum purporting to federalize members of the Texas national guard for deployment to Portland and Chicago. The memorandum was just filed as an exhibit on the docket not too long ago. That could explain the delay re: hearing but unclear at the moment....🤷♀️
Huh 🤔 PACER scheduling order now references 10 a.m. for hearing, but the date is still October. 5 and there's an earlier reference to 7 pm PC/10 pm ET tonight? I'm confused. On left: Modified scheduling order On right: Original
I just got "You are entering the meeting now." But can't hear anything yet. Stay tuned...
Annnnnd.....I think we have audio. Sounds like people are still joining. Someone says we'll get started in a minute.
Ok, here we go. The case is called and Judge Immergut explains the background. She says there were technical difficulties, which caused the delay.
Counsel makes their appearances. Scott Kennedy for State of Oregon. Caroline Turco for City of Portland. Jane Riley for California. For DOJ, I believe it's Eric Hamilton and Jean Lin.
Judge Immergut first give DOJ opportunity to respond to second motion for TRO. He says his understanding is that members of the federalized California National Guard are being deployed to Oregon.
Immergut almost immediately interjects: How is that not violation of my order...you are officer of court, how is that not circumventing? My order was based on conditions in Portland...
Hamilton says that Trump's earlier order federalizing national guard was not limited to the state of California. Immergut: You are missing the point...my order was based on conditions in Portland. That there was no legal basis to bring national guard into Oregon...
Hamilton: 12406 has not been utilized much before in history so not much history. Immergut: Why do you think not utilized? Hamilton: I can't speak that..I can say president thought appropriate to federalize California guard back in June...
Immergut: There has to be a colorable claim that OREGON conditions require it. But you don't. So what's the legal basis? Hamilton: New guardsmen were not federalized...200 CA guard were relocated to Oregon.
Immergut: You're an officer of the court. Do you believe this is appropriate way to deal with my order? Hamilton: I'm not a policy maker Immergut: You're a lawyer In response, Hamilton basically argues no geographic limit to federalization of CA guard...
Hamilton also argues that California can't show standing and irreparable harm. He adds that if the court issues TRO they will seek stay pending appeal.
Immergut asks Kennedy to respond on behalf of Oregon. He highlights information about the pending transfer of Texas national guard members to Portland and Chicago. Received info minutes before this hearing. Hegseth memo raising additional concerns, like "playing rhetorical whack-a-mole."
Kennedy: We filed TRO based on California deployment here, then after that we received notice of the Hegseth memo re: Texas deployment. So now in position to need to broaden the relief to include deployment of national guard of an state and District of Columbia....
Immergut has questions about California component. Mentions that original TRO re: Oregon national guard appealed to 9th Circuit. What's the consequence if I grant this TRO, she asks. Kennedy says he'll want Jane Riley to address for California.
Riley: We don't think this would create jurisdictional conflict....Court has jurisdiction to enter new injunction
Immergut: What's the irreparable harm for CA? Riley: First is injury to our sovereign rights and police powers. California soldiers are being unwilling participants in a unlawful federal mission....
Riley: True that soldiers would still be federalized even if still in CA the state. But at least they'd be geographically located in the state...if they're out of state, logistical issue getting them back and under state control if there's an emergency.
Kennedy is back to address harm for Oregon. He says that Oregon has sovereign interest in what the needs of the state are. People of Oregon have that interest, including whether their own forces can handle law enforcement issues...
Kennedy adds that state and local law enforcement in the state of Oregon and in the City of Portland will need to expend additional resources in response to any increased protest activity. Immergut asks if they have anything further. Plaintiffs say no.
Immergut: I'm handling this on expedited basis, but defendants haven't provided new info. SHE RULES FROM THE BENCH: I grant the plaintiffs motion for a second TRO based on reasons stated in previous order...
Immergut: The question is the scope. I see the defendants' conduct as being in direct contravention of the court's order issued yesterday....I am troubled by the defendant's conduct, but have some concern about the breadth of the alternative relief requested during tonight's hearing
[This is a reference to Oregon's request for broad TRO barring deployment of *any* federalized nationalized guard...not just California national guard, which the second TRO was filed in response to) 
Immergut: What I'll do is not modify my original TRO but issue a new TRO that prohibits the relocation or deployment of any federalized national guard to the state of Oregon....
Immergut states for the record that she is basing new TRO on all of the reasons that were in my prior opinion granting first motion and the same reasons and apply...The deployment of the federalized military is ultra vires and contrary to law, she says.
Jane Riley for CA asks about the duration of the new TRO. Immergut replies that it would expire in 14 days [notwithstanding further order of the court].... For DOJ, Hamilton asks court to rule on motion for stay. Immergut: I'm denying motion for stay and administrative stay.
And with that, we are done. Thanks to all who followed along! If you appreciate @lawfaremedia.org's live courts coverage and legal analysis, I hope you'll consider supporting our non-profit newsroom: givebutter.com
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