The Judgment on Oregon - and the Silence of the Constitution

A few moments ago, the 9th U.S. Court of Appeals in San Francisco ruled in the case Trump v. State of Oregon, Case No. 25-17108, that Donald Trump may formally assume command of the Oregon National Guard - although he cannot deploy them for now. A legal Pyrrhic victory, but one that redefines the balance of power between the federal government and the state. The case began three weeks ago when U.S. District Judge Karin Immergut, a Portland-born jurist with a Republican background and former federal prosecutor, issued two temporary restraining orders against the White House. She initially prohibited the president from ordering 200 soldiers of the Oregon National Guard to Portland to "restore public order." When Trump circumvented the order by instead summoning troops from California, she issued a second injunction: not a single National Guardsman, from any state, may be deployed in Oregon without the state's consent.

It was a clear blow against an increasingly authoritarian White House - and the beginning of a legal tug-of-war that has now entered its next act in San Francisco. A three-judge panel of the 9th Circuit lifted Immergut's first injunction. The majority: Judge Ryan D. Nelson and Judge Bridget S. Bade, both appointed by Donald Trump. The minority: Judge Susan P. Graber, appointed by Bill Clinton, an experienced jurist with decades of civil law expertise and known for her precise, measured language.

Nelson, a former energy-sector lawyer from Idaho, and Bade, a former federal prosecutor in Arizona, argued that the president likely has the right to "federalize" the troops. In their 24-page majority opinion, they wrote that the commander in chief could invoke the "Insurrection Act" and the executive authority to "enforce the laws" if he determined that these could not be enforced without military assistance. "Even if the president may exaggerate the scope of the situation on social media," they wrote, "the facts appear to support his decision in principle."

It sounds like legal sobriety - but it is political dynamite. Because the facts on which the judges rely are thin: In Portland, there have recently been small nightly protests outside the ICE building, limited to a single block. No burning police cars, no looting, no major riots. Judge Immergut had emphasized in her original ruling that the White House's portrayal of Portland as "war-torn" was "simply not supported by facts." Graber, the Clinton judge, picked up on that in her dissenting opinion - and wrote the sharpest legal sentence of the month:

"In the two weeks preceding the president's September 27 social media post, there was not a single incident in which protesters interfered with the enforcement of the laws," she wrote. "It is hard to see how a tiny protest without any disruption could possibly satisfy the standard that the president is unable to execute the laws."

That is more than a dissent. It is a wake-up call. Graber warns that if the ruling stands, it would "grant the president unilateral power" to "send soldiers into the streets of the states - with little more than a claim as justification."

In fact, the line being drawn here carries enormous weight. The appellate court has not only ruled on Oregon but on the relationship between the federal government and the states in times of political escalation. It is testing how far a president may go when he claims internal unrest - and what happens when the judiciary believes him. Behind the legal rhetoric lies a political pattern: Trump is seeking confrontation with Democratic-led states. After Oregon, the White House now wants to station National Guard troops in Chicago. A parallel case is already underway in California - there, a judge ruled that the deployment of thousands of National Guardsmen in Los Angeles violated the Posse Comitatus Act, a law from 1878 that generally prohibits the use of the military for civilian policing.

The Justice Department, meanwhile, argues that courts should not presume to question the president's decision about troop deployments. But that is precisely the heart of the dispute: Where does executive authority end, and where does arbitrariness begin?

Oregon Attorney General Dan Rayfield, a Democrat, plans to appeal the ruling. He announced that he would request a larger panel ("en banc") of the 9th Circuit. His comment sounded like a warning to the entire country: "If this ruling stands, it gives the president unilateral power to send soldiers into our streets - without real justification. We are on a dangerous path in America." The case Trump v. Oregon is not yet decided - but it has already made history. For the first time in decades, a U.S. appellate court is examining whether a president may effectively use the military against states whose governments oppose him politically.

Whether the Supreme Court of the United States will take up this precedent remains to be seen. But one thing is certain: If it does, the conflict will not only be legal but historic - a battle over the question of whom the American army ultimately obeys: the Constitution or the will of one man.