The Daily Populous Sunday October 26th, 2025 morning edition
Authored by lawandcrime.com and submitted by seeebiscuit

The Trump administration notched itself an illusory victory in federal court this week in one of the ongoing legal battles over the federal use of state National Guard troops to police American cities.

On Monday, a three-judge panel on the U.S. Court of Appeals for the 9th Circuit, in a 2-1 ruling, stayed a temporary restraining order (TRO) issued by U.S. District Judge Karin Immergut, who was appointed by President Donald Trump during his first term in office.

By Friday, the full 9th Circuit administratively stayed the panel's own stay – "[w]ithout objection from the panel," an order notes.

That quick turnabout appears to be the result of some unfair play.

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On Thursday, attorneys for Oregon alerted the appellate court to an issue with some of the figures provided by the U.S. Department of Justice in service of the government's winning stay request.

"Plaintiffs write to alert the Court of a material factual error by defendants on which the panel relied to grant a stay pending appeal," the citation of supplemental authorities reads. "Given that reliance, and the gravity of the interests at stake, plaintiffs ask that the panel immediately withdraw its order or, in the alternative, that the en banc court immediately vacate it."

Oregon's Thursday filing explains the panel's earlier decision-making when granting the Trump administration the stay, at length:

The panel majority held that defendants were likely to prevail under 10 U.S.C. § 12406(3) because the record showed a colorable inability to execute federal law. Central to that determination was the majority's acceptance of defendants' averments that protests had forced the redeployment of 115 Federal Protection Service officers, "nearly 25% of FPS officers nationwide," to Portland. The dissent noted that defendants' declaration on the actual extent of the deployment was "carefully worded" to the point of "vague." But defendants' counsel emphasized at oral argument the "magnitude" and "unsustainab[ility]" of having 115 FPS offices redeployed; then, when asked directly whether all 115 officers remained in Portland, counsel stated only that "some" had gone home but "many" remained.

Those numbers, as it turns out, were greatly exaggerated.

In discovery produced Wednesday night, the government "admitted that 115 FPS officers have never been redeployed to Portland." Rather, the Beaver State says, "[o]nly a fraction of that number was ever in Portland at any given time before the President's directive."

Citing four separate time frames, the discovery showed deployments of 27 troops, 31 troops, 29 troops, and 20 troops in Portland at any given time between the middle of June and end of October.

"Critically, armed with the Court's stay order, defendants have now moved to dissolve the second TRO in this case, and the district court has scheduled a hearing on that motion for October 24, 2025, at 10:00 a.m.," the Thursday filing concludes. "This Court must act swiftly to prevent defendants from attempting to benefit from their own material mistake to deploy military forces to peaceful civilian streets, contravening the rule of law and our nation's history and traditions. The panel majority's stay order should be withdrawn or vacated immediately."

And act swiftly the 9th Circuit did.

Now, the stay of Immergut's first TRO is paused until Oct. 28, "to allow the completion of the pending en banc proceedings," the court noted.

In real terms, the upshot may not mean much on the ground – as there is still a second TRO in effect that bars the use of both Oregon and California National Guard troops from being used in Portland.

The underlying litigation was filed on Sept. 28, premised on alleged violations of statutory law concerning troop deployments, the Administrative Procedure Act (APA), and the Constitution. Originally, only Oregon sued to stop the deployment of troops to Portland.

On Oct. 4, Immergut granted a temporary restraining order that expired on Oct. 18. The court's order barred "the federalization and deployment of Oregon National Guard service members."

The Trump administration immediately appealed to the U.S. Court of Appeals for the 9th Circuit, seeking a stay and, later that same night, apparently tried an end-run around Immergut's restraining order by communicating its intent to use 200 members of the California National Guard in Portland in lieu of the Beaver State's own troops.

On Oct. 5, in response to the threat of Golden State troops being activated, California joined the litigation and filed an amended complaint as well as a second motion for a temporary restraining order — which Immergut granted that very same day.

The second restraining order, more broadly, enjoined the government "from deploying federalized members of the National Guard in Oregon." And, similarly, it expired on its own terms on Oct. 19.

On Oct. 15, after a hearing, the district court found "good cause to extend" both of its own temporary restraining orders — pending the results of the then-ongoing appeal with the 9th Circuit.

On Oct. 20, the three-judge panel voted to stay the first restraining order in a relatively clear victory for the Trump administration. The 2-1 majority decision was penned by Trump-appointed U.S. Circuit Judge Bridget S. Bade, with a concurrence by Trump-appointed U.S. Circuit Judge Ryan D. Nelson. In dissent was Bill Clinton-appointed U.S. Circuit Judge Susan P. Graber.

But, while the second restraining order was not appealed by the federal government or formally considered by the trio of judges, the 9th Circuit previously suggested that order should be paused as well.

"The district court stated that it granted the second TRO based on the same legal reasoning it provided in its order issuing the first TRO," the panel's opinion reads. "Defendants are thus correct that the first TRO and the second TRO rise or fall together on the merits of the issues raised in this motion for a stay pending appeal."

Now, however, the legal conclusions in the panel's own ruling may become undone as the basic facts of the case are quite different from what the Trump administration originally claimed.

Trick-Set-1165 on October 25th, 2025 at 20:57 UTC »

TL;DR:

The administration said they redeployed 115 Federal Protective Service officers to Portland, and the ninth circuit based their ruling on that figure.

A few days after the ruling, Oregon officials discovered the numbers were actually between 20 and 30.

Shelleyscase on October 25th, 2025 at 20:24 UTC »

This sounds like a pretty big deal. The original panel didn't object to having their order paused. That suggests the two Trump-appointed judges on it were pissed off. Judges really do hate being lied to and made to look like credulous fatheads.

Machiavvelli3060 on October 25th, 2025 at 20:18 UTC »

Lying to a judge?