Oregon v. Trump: A Hearing Diary

I'll be trying to live-blog the 1pm ET hearing in Oregon v Trump for @lawfaremedia.org , filling in for @annabower.bsky.social (who is listening but driving). Oregon & Portland are seeking a TRO to block deployment of 200 national guard troops Secy Hegseth ordered sent on 9/28. ... /1

Though there are several issues, the focus will be on whether the deployment is authorized under 10 USC 12406. Govt is citing the 2d & 3d clauses: "threat of rebellion" & inability "to execute the laws of the US" with "regular forces." ... /2

The petitioners' motion for temporary restraining order is laid out here: /3 storage.courtlistener.com

The govt's response is here: /4 storage.courtlistener.com

The judge will be Karin Immergut. The case was reassigned to her yesterday after Judge Michael Simon recused himself. His wife his Rep. Suzanne Bonamici, who has publicly opposed the deployment. ... /5

For those who want to listen in, here's the number. (Don't record or broadcast.) Telephone Number: 1-571-353-2301 (toll-free 1-833-990-9400); Guest Meeting ID: 812-980-324#. /6

All rise. Judge Immergut is on bench. Judge is taking appearances Plaintiffs: Asst AG Scott Kennedy seems to be lead Didn't get lead for gov, but may be Dep Asst AG Eric Hamilton or Christopher Edelman /7

Judge Immergut explaining rules to reporters present. J: on 9/28/25 Secy of War Hegseth issued memo calling 200 NG to fed service to protect ICE & other federal personnel & protect fed property. ... Pls OR and City of Portland seek temp restraining order ... govt filed opposition yesterday. /8

J: I plan to allow eah side 30 min. then will allow plaintiffs 10 min more since they bear burden of proof. Kennedy for OR: i'd like to begin ... he'll be splitting role with 2 other attys. Hamilton will be lead for govt. /9

Judge now reading 10 USC 12406 aloud. J: so that is the operative statute. parties have largely focused on prong 3. some discussion of prong 2, but dont think we're in danger of any rebellion i do find that 9th circuit has affirmed that i do have ability to review. courts must however give /10

J: ... great deference to President's determination. but i can review whether he has made a “colorable assessment of the facts and law within a range of honest judgment” Let me ask each side certain questions. for plaintiffs: 9th circuit said "great deference" ... /11

J: Hegseth says he's unable to enforce immigration laws without callijng out NG. i need to give great deference Kennedy: here that memo has a few issues ... one is ... does not purport to be about events unfolding in Portland. it was about events in LA. specified no particular events. /12

J: does there a legal standard for what is specific enough? what level of specificity is required. K: Secy invoked the 6/7 memo ... level of specificity is not clear ... regardless what might be req'd can't be satisified here. they've not highlighted an event that preceded that memo. /13

K: ... must be relevant to Portland. J: let me ask defense same question. i think plaintiff is right that 6/7 memo is the [operative one]. that's the determination memo at issue here. is that enough? doesn't refer to anything proximate to actual callout Hamilton: the most important ... /14

H: ... is the one [Trump] made last weekend. ... Truth Social post ... 9/27 ... later on Wed he made another post ... he talks more about decision of weekend explaining that conditions in OR had continued to deteriorate. J: a social media post is going to count as P'l determination /15

J: ... that i you can send NG to a location? is that really -- H: Yes these posts reflect Secy Hegseth's thinking ... in federalizing 200 guardsmen . J: How can i consider a post-hoc rationalization for an order already issued? H: there isn't anything in 12406 that requires particular form /16

H: so president's posts last week elaborated on his thinking but even that would not be req'd. ... J: some behavior in mid-June to July. but just a couple isolated incidents [since]. order is issued end of september. is it appropriate to rely-- as the June 7 memo does -- the official order -- /17

J: ... can president rely on old news so to speak at end of september if nothing new is happening? H: the record does show a persistent threat as well as actual violence dating back to [june]. for instance ECF [missed it] documents incident Sunday. ... /18

H: [listing several other alleged incidents] ... 50 or 60 agitators ... or incident from Thursday: agitators with flashlights trying to blind drivers. ... It's different (less) from California, but it's also only 200 National Guardsmen. But especially against the backdrop of the ... /19

H: ... shooting in Dallas last week [it's sufficient.] there's been actual and threatened violence in many cities. prez has determined it's most dangerous at moment in LA and Portland. Incident in Dallas underscores necessity to take it very seriously. J: i need to find law enforcement unable /20

J:... to do the job. H: i think it's a little different. ... the declarations flesh out the inability of regular forces to enforce the law. at least 3 DHS agencies have asked local law enforcement to help-- J: but so far local law enforcement [LE] has been able to resolve problems. ... /21

J: is it your suggestion that anytime some LE agency needs additional reinforcement that's enough to demonstrate NG needs to be called out? H: certainly here where you have over 100 federal officers repositioned ... officers working 12 hr shifts ... ICE officers called in to provide support ... /22

H: ECF 46-28 is document from Sunday with officer talking about what he witnessed. Federal protective service requested assistance. ... [didn't get enough assistance] J: Is there any kind of legal standard? what's enough? H: Newsom said quite a bit about that. Great level of deference req'd. /23

H: "Minimal interference" is not enough, but we're well beyond that. ... J: record doesn't reflect ongoing circumstances between mid-July and September. H: there has been some ... J: enough to call out national guard? H: it is enough. ... at least a *danger* of a rebellion. ... /24

J: has "rebellion" prong of 12406 ever been used and, if so, when? H: we did invoke it in California J: that was classified as a riot. you haven't had that, right? H: dozens of agitators J: we're talking about a single building. any case historically where rebellion prong has been invoked? /25

H: not aware of one. J: turn to you Mr. Kennedy. struggling with standard K: standard YH ... "inability to exercise the laws" ... 9th circuit has said "more than minimal interference." and it needs to be in relevant time frame. clearly absent in this case. sporadic incidents not sufficient. /26

now switch to Caroline Turco (City of Portland). she says govt is not describing what's really happening on the ground. She's citing declarations from Portland Police Bureau (PPB) officers describing very mild incidents. 9/25: officers on ground "no issues" 9/24: PPB: no calls for service... /27

Judge: what about govt's argument that i can consider an 10/1 incident, after the callout, in determining whether president's determination makes a colorable claim Turco: must be what's leading up to announcement. ... Judge: let me switch to Posse Comitatus argument ... /28

J: defs say there's no private right of action to a Posse Comitatus Act (PCA) claim because it's a criminal statute. Kennedy says the court can address PCA through the Administrative Procedure Act. Also, not just relying on PCA but also 10 USC 275 (below) ... /29

Kennedy says that plaintiffs "ultra vires" claim (beyond statutory authority) under Admin Proc Act can include reference to PCA and 10 USC 275. Defs interpretation of PCA would leave fox guarding the hen house. Exec Branch responsible for policing own actions. /30

Judge: Mr. Hamilton, i did have question on PCA. who other than member of exec branch could possibly use military in violation of the law? woudn't it have to be member of exec branch? H: that sounds right. J: they'd be prosecuting themselves? H: remedy is crim prosecution. yes. /31

H: statute of limitations may extend beyond transitions in govt. but congress created PCA and how it would be enforced. J: 2 more questions. in newsom v Trump parties agreed that 10th Am claims rise and fall with 12406 claim Kennedy: claim there was narrower than in this case. /32

K: infringement on state sovereignty here does not rise and fall with statutory argument. J: on question of irreparable harm, what are strongest grounds at TRO stage. K: i'll have Mr. Marshal speak to that Marshall: governor's interest in cont'd availability of 200 NG under her command /33

M: that's a violation of state's sovereign interests. In Newsom, 9th Circuit thought use of 12406 was justified. But if it hadn't, that is violation of sovereign interests, so irreparable. then there's practical use of 200 NG members. 3% of OR NG. But those are ones trained to respond to /34

M: emergencies ... like [natural disasters?] also, financial harm. loss of tax revenues. should situation become inflamed. M: coordination costs. additional complexity. lot of police officers working overtime. J: let's go right into your arguments. /35

Kennedy: at outset ... this case involves one of most dramatic infringements in state sovereignty in history. based largely on fictional narrative. there have been protests of course. sporadic. most in june. LE responded efficiently & effectively. why federalize on 9/28? answer unclear. /36

K: deference is due. but they've clearly crossed the line. was their colorable good faith basis? want to put more meat on that standard. SCOTUS: use terms like whether or not decision was arbitrary? directly related to an emergency? idea is, needs to be within range of honest judgment. /37

K: no matter what source of justification we look at, that standard can not be met in this case 1st: secy' memo from 9/28 which incorporates Trump's memo from 6/7. Trump Memo was in response to events in LA. logically can't be based on events in Portland. timing wholly arbitrary. /38

K: 6/7 was apex of protests in LA. here portland police documented dwindling, relatively sedate protests ... few sporadic incidents since July. ECF 46-29: the few nights leading up to 9/27 Truth Social post ... see "no calls" "few people, no activity" "approx 20 people no calls" "energy low" /39

K: this is paradigmatic example of an assessment not based on good faith assessment of facts. the egregious shooting in TX was a different part of the country and can't be related to portland. [otherwise] authority is unlimited. big country. will always be violent incident somewhere. /40

K: yes, prez gets leeway. but where was emergency on 9/27? where was it on 9/28? justification offered by defense: prez's informal commentary to public. not sure it's sufficient to rely on prez's informal commentary ... see vague incendiary hyberbole by prez. in particular 9/27 truth social post /41

K: he describes as war-ravaged ... etc. K: don't think P can justify action taken on 9/28 on event a few days later. even then ... prez says this looks like WWII. ...state burning down. ... very difficult to see any of these as good faith judgment in range of honest judgment /42

K: let's look at 3d prong. inability to execute the laws. defense has not ID'd any credible instance of inability to execute the laws. they've ID'd some hindrances for limited period of time. that minimal interference standard is significant here. /43

K: as for "rebellion" dont think any events dating back to june could satisfy that standard. so standard it would swallow a whole lot of conduct. most protests oppose authority to some extent. first criterion is "invasion" doesn't make sense to go to a def of "rebellion" so broad it swallows /44

everything else. [Now another atty is speaking for plaintiffs, not sure which. Maybe Turco. sorry] Turco (if it's her) is drawing attention to specific declarations that increased federal presence will provoke greater protests. not speculative but conservative prediction. /45

Turco(?) is reading from other declarations and documents. "Nothing to report." "quiet night." Now atty Brian Marshall (OR AG's office) is addressing irreparable harm. /46

Marshall: Fed govt's brief suggests that fact that 200 service members make this not sufficient for irrep harm. Too trivial a number. But the number goes to weight, not fact of irreparable injury. In California case, CA showed that deployment of NG it increased tensions, violence. /47

Marshall: we have more specific evidence on this point in the Portland case. This relates to experience in 2020 (the George Floyd protests). increased presence of federal forces inflamed the process. there's also expert opinions that come to same conclusion. counterproductive. /48

M: i've described to some degree the economic harm--tax revenue and overtime costs. more persuasive is judge breyer's decision in CA [relating to PCA violations] that he credited that there was economic dampening as consequence of NG deployment. /49

Now Hamilton for DOJ: court should deny motion for TRO. ... there have been fires. blocks and bricks have been thrown at LE. DHS had to close ICE facility for 3 weeks in the summer because of violence. /50

Hamilton: recent events in September that are violent. guillotine set up. attempted blinding of ICE drivers with high-powered lights. threats of incendiary devices. ... ICE members being followed home ... didn't hear plaintiffs dispute evidence of recent violent events. /51

H: a factual dispute like htis is resolved in prez's favor. there has been so much more than the minimal interference that the 9th Cir said would be sufficient. Federal protective service has redirected > 100 officers from outside area ... on top of that local LE refusal to provide help ... /52

H: ... when requested. ... prez made judgment over weekend that statute's preconditions were met. no specific process in 12406 for prez to make that decision. 12406 does contain one procedural requirement--how orders are transmitted to governor. CA made a challenge to that. 9th Cir found /53

H: ... failure to comply with that would not justify a preliminary injunction. The prez's saturday post invoked DHS's request. 9/26 document from DHS to Dept of War that explains the need for forces here in Portland to respond to threat that federal protective services say have pushed it /54

H: ... beyond the ing point. H: prong 2 of 12406: threat of rebellion ... "danger of rebellion" ... monthlong targeting of Portland ICE building meets that 10th Amendment claim they make is wholly derivative of 12406 claim. Plaintiffs don't challenge 12406's constitutionality. /55

Hamilton now discussing Posse Comitatus Act. Judge Breyer found a violation, administratively stayed by circuit, but plaintiffs here sought TRO even before NG was deployed. Plaintiffs not able to submit anything like record Judge Breyer had in the California case. ... /56

H: also, there's no civil cause of action under the PCA [which is a criminal statute]. it provides for imposition of fine, imprisonment, or both. PCA also allows for exceptions [under Constitution or Acts of Congress]. [Hamilton is now claiming 12406 is one of those permissible exceptions.] /57

Hamilton: Plus, providing backup for LE does not violate PCA. Even Judge Breyer said that. He was concerned with activity that concerned out in the field (not protecting ICE bldg). Also, must be wilful conduct to violate PCA. plaintiffs do not provide any evidence of wilful PCA violation. /58

H: that explains plaintiffs' failure on likelihood of success prong of their case. just part of their very high burden. also can't establish irreparable harm. no emergency. NG hasn't even taken its position outside ICE bldg yet. it's training. very small force. /59

H: just 5% of what was federalized in LA no [state] sovereign injury. ... providing federal protection. it's a federal crime to commit crimes against federal personnel & property. Judge: [what about governor's] sovereign interest in making determination what needs of state are? /60

H: we disagree. these are federal operations that are being provided for. NG are members of state NG and members of national NG reserve. J: not suggesting law couldn't allow it. but govt is saying to governor, we dont care what you think? H: it's federal govt's job to protect fed prop & /61

H: ... personnel J: if governor had no interest, why is there a requirement to go thru the gov't in the first place? H: i read that as a [matter of coordination]. plaintiffs can't succeed on this diversion of resources theory. 200 people out of 6000 members /62

J: will NG get paid during shutdown? H: my understand Title 10 deployments are paid. J: is that an irreparable harm or irrelevant to the argument? H: i don't think [it's relevant]. plaintiffs haven't argued that. there is a very serious threat of violence in portland that requires a response /63

H: Finally i'd just note that if court does enter any relief should be tailored to city of portland and only enjoin activities specifically found to be illegal. Breyer did that in PCA order. Plaintiffs have not submitted any proposed order. But court lacks jurisdiction to enter vs. prez /64

H: also ask that court stay any order it enters for 10 days to permit appeal ... Judge: rebuttal? Kennedy: regarding irreparable harm. NG are in training status. TRO provides prospective relief. A stay would not preserve status quo. much different situation in LA. /65

K: On factual point, i've been warned by governor's advisors that your honor's point is accurate, the NG members will not be paid for the moment. [THIS MIGHT HAVE BEEN BRIAN MARSHALL; NOT KENNEDY. SORRY. NOT SURE.] J: not in the record. /66

Now atty Turco (Portland) is drawing attention to particular declarations and documents showing facts on the ground. She says there's a perception versus reality problem in president's statements & findings. Kennedy: Govt atty says there have been "incidents." Referring mainly to June. ... /67

K: Govt seeks 60 day deployment mainly based on events that occurred 90 days ago. one example is altercation between *counterprotesters* in September. No assault on fed officers. Also incidents of doxing of ICE--but not at federal ICE facility. outside scope of mission. /68

K: my colleague on other side also mentioned that some of our contentions amount to procedural defects. not true. everything i've articulated goes to substantive standard: has there been good faith colorable assessment of the facts. Prez's statements can't meet that standard. /69

K: no discussion of time frame. "there have been incidents." not sufficient. Lastly, whether events constitute a "rebellion"? govt's argument would allow invocation in any state at any time under that theory. action defs taking are drastic ones. threaten to change balance of /70

K: ... federal and state power we ask respectfully that court grant TRO. J: if i were to grant, should it be limited to city of portland? is there a specific boundary? K: we are seeking a stay under APA & injunction against Secy Hegseth's Memo. /71

K: Ask for order restraining enforcement of that memo. J: i do have additional reading to do. do expect to reach decision later today, it could be tomorrow. issue of great importance to many people. i understand. i'll make a decision very quickly. thank you very much. /71

HEARING OVER Thanks for paying attention! If you find these threads valuable, please consider contributing to @lawfaremedia.org below. /72-end https://givebutter.com/journalism/