The recent decision by the United States Court of Appeals for the Ninth Circuit to allow Donald Trump to deploy the Oregon National Guard to Portland opens a significant chapter in the evolving tension between federal authority and state sovereignty. On October 20, 2025, a divided panel ruled 2 to 1 that at this preliminary stage the president “likely acted within his statutory authority” to federalize the Guard under 10 U.S.C. Section 12406(3).
Legal Grounds and the Court’s Reasoning
In its majority opinion, the Ninth Circuit held that the president’s use of Section 12406(3), which allows federalization of a state’s National Guard if the president determines that regular forces are not sufficient to enforce federal laws, presented a credible interpretation of the facts that courts should not second guess at this stage. The decision referred to events earlier in the summer in Portland, where federal immigration facilities were reportedly attacked and disrupted. However, the lower court had found that by September the protests were no longer at a disruptive or violent level, casting doubt on the urgency of the federal intervention.
The dissenting judge argued that the majority ruling erodes core constitutional principles by permitting an unchecked expansion of executive power over state-controlled military resources, according to The Washington Post.
Implications for Federal and State Authority
This ruling significantly affects the traditional balance of power between state governments and the federal executive. It suggests that under certain conditions, such as claimed threats to federal law enforcement, the president can override a governor’s control over their state’s National Guard. This could set a precedent where federal interests supersede state decisions in matters of domestic security, regardless of whether the threat is active or ongoing. Oregon’s Attorney General warned that the court’s decision undermines the state’s sovereign authority to manage its own internal security operations.
Broader Political and Security Consequences
The decision arrives during a period when the Trump administration has repeatedly sought to deploy federal or federalized forces in Democratic-led cities under the banner of protecting federal properties or enforcing immigration policies. Allowing the use of National Guard units under Section 12406(3) without an ongoing insurrection or rebellion lowers the threshold for military deployment within U.S. borders. This increases the risk of domestic military force being used for political purposes and shifts the boundary between law enforcement and military intervention in civil matters.
What Happens Next
Despite the appellate ruling, the deployment is not yet moving forward. A separate temporary restraining order issued by a district judge remains in effect, prohibiting the deployment of out-of-state Guard units to Portland. The state of Oregon and the city of Portland have already requested a full en banc review by the Ninth Circuit, a move that could reverse the decision or narrow its scope. The issue may eventually reach the Supreme Court, where a final ruling could define the limits of presidential authority under federal deployment statutes.
A Final Note
By upholding the preliminary legality of deploying the Oregon National Guard under federal control, the Ninth Circuit has opened the door to a broader use of military forces in domestic affairs. The decision raises complex constitutional questions and reflects a growing willingness to expand executive power in matters of internal security. Whether this shift endures will depend on the outcomes of future court rulings and political negotiations.
