The courtroom battle over whether the Trump administration can force the deployment of California National Guard troops to Oregon will test the limits of presidential power as well as the legal guardrails meant to protect civilians from unwarranted use of the military in domestic situations, experts say.

A panel of three federal appeals judges, two of them appointed by President Donald Trump during his first term, will hear arguments Thursday in the administration’s appeal of a court order temporarily barring the deployment issued by a federal judge in Oregon earlier this week.

The hearing by the 9th Circuit Court of Appeals panel will take place even as federalized Guard troops from Texas have been deployed to Illinois over the objections of that state’s governor and the mayor of Chicago. A hearing in a lawsuit seeking to stop that deployment is also set for Thursday morning in federal court in Chicago.

At stake in both cases is the question of the extent to which the president can use the National Guard over the objections of local officials, and in ways that are more like domestic law enforcement than the suppression of rebellion envisioned by federal law, said Erwin Chemerinsky, dean of UC Berkeley Law.

In an earlier ruling, a different panel of 9th Circuit judges said Trump was within his rights to federalize the California Guard amid anti-immigration protests in Los Angeles in June that had drawn large crowds and included incidents of violence. But the judges also said that the president did not have sole discretion in such decisions, and the courts retained the right to review them.

In arguing that he should be allowed to send California troops to Oregon despite a judge’s ruling barring him from doing so, Trump is attempting to push the boundaries set by the 9th Circuit in the Los Angeles case by increasing the president’s discretion over when it is appropriate to send in troops, Chemerinsky said.

“The 9th Circuit ruled earlier on the ability of the president to call out a state’s guard, and whether that was permissible as to the situation in Los Angeles,” Chemerinsky said. “But this is different. It really is the ability of the president to use the military for domestic law enforcement.”

In Illinois, where Texas Guard personnel began arriving Tuesday, the goal is similar, Chemerinsky said, to expand Trump’s ability to use the guard for domestic purposes.

“The president has been explicit that he wants the military in Portland and Chicago for law enforcement purposes,” Chemerinsky said.

Legal battles intensify amid immigration sweeps

In June, Trump deployed nearly 3,000 California National Guard members and Marines to the nation’s second-largest city after protests broke out over a string of immigration raids targeting workers in the city’s garment district, day laborers at a Home Depot store and others.

California Gov. Gavin Newsom quickly filed a federal lawsuit seeking to stop the deployment, and a judge in San Francisco agreed, ordering the president to turn control of the Guard back to the state. That initial ruling by U.S. District Judge Charles Breyer was overturned by a 9th Circuit panel. A second ruling in the case declaring the deployment illegal was put on hold by the 9th Circuit last month, as it considers Trump’s appeal. That case is scheduled for oral arguments on Oct. 22.

When U.S. District Judge Karin Immergut, a Trump appointee to the Portland federal bench, ruled last week that much smaller protests there did not warrant deployment of Oregon’s National Guard, the Trump administration said it would instead deploy California’s Guard, over which it still had control.

But a day later, on Sunday, Immergut issued a second order barring the White House from sending Guard troops from other states to Portland. The administration immediately appealed, and an appeals hearing, to be conducted remotely, is set for Thursday morning.

In its motion arguing that Trump should be allowed to send California Guard troops to Oregon, the Justice Department lawyers called Immergut’s order “extraordinary,” and urged the circuit judges to overturn it, citing its similar decisions regarding the deployment in Los Angeles.

While conceding that violent incidents in Portland “had somewhat abated in the past month,” the administration insisted that conditions warranted the presence of military troops.

“Over the past several months, agitators have assaulted federal officers with rocks, bricks, pepper spray, and incendiary devices and threatened federal personnel at their work,” Assistant U.S. Attorney General Brett A. Shumate, who also argued the Los Angeles case, said in his brief for the administration. “They have followed federal officers to their homes, doxed them online, and threatened to kill them on social media. They have also seriously damaged a federal building.”

But a key difference between the two cases is that the Los Angeles lawsuit centered on the legal question of when the president could exercise discretion to call up the Guard, while in the Oregon case Immergut said that the government was wrong factually — that the protests in Portland were controllable by local law enforcement, said John Yoo, a conservative legal scholar at UC Berkeley Law.

It is highly unusual, Yoo said, for an appellate court to overturn a lower court ruling based on the judge’s conclusions about the facts underlying a case.

“The appeals courts usually leave it in the hands of trial judges to make fact-finding decisions,” Yoo said.

By law, Trump is allowed to call up the Guard if there is a rebellion, or if there is lawlessness or unrest that cannot be quelled by local law enforcement.

“Judge Immergut says that’s a factual question,” Yoo said. “Its a question of what do I see with my own eyes.”

The two different factual interpretations — and the appeals court’s willingness to break with a district court judge over a factual matter — are the key issues upon which Thursday’s hearing will hinge, Yoo said.

“The case will really turn on how much what we call deference,” he said. “How much deference does the appeals court owe to the trial judge as to what the facts on the ground really are?”

The three judges who will consider Trump’s appeal on Thursday are not the same jurists who issued the prior orders about the L.A. case. The motion will be heard by Ryan Nelson, who was appointed by Trump in 2018; Susan Graber, who was appointed by former President Bill Clinton in 1998 and is based in Portland; and Bridget S. Bade, who was appointed by Trump in 2019.

On Wednesday afternoon, they issued a ruling granting Trump an administrative stay of Immergut’s first ruling on the federalization of the Oregon Guard, pending appeal, but they are not scheduled to address the question of California’s Guard until Thursday. The order does not change the status quo, the judges said.

The Los Angeles case is being heard by judges Jennifer Sung, an appointee of former President Joe Biden, Mark Bennett and Eric Miller, both Trump appointees.

Illinois case connected to California, Newsom says

The Illinois case is also connected to issues in California, Newsom said in a friend-of-court brief filed Tuesday. Ramped-up immigration sweeps in Chicago, including a nighttime raid on an apartment building that involved families with children, were swiftly followed by protests and a decision by Trump to send troops to the city.

But amid opposition by Illinois Gov. J.B. Pritzker, the administration decided to send the Texas National Guard instead.

That move, Newsom said in his brief, was the next step in a militarization of American cities that began with Los Angeles.

“Defendants’ campaign to militarize America’s cities began in California, where in early June, President Trump seized control of the State’s National Guard troops and deployed them to conduct civilian law enforcement activities throughout Southern California,” the brief said.

The deployment “irreparably harmed” the state’s sovereignty and would do the same in Illinois if allowed to proceed, the brief said.

“This court’s intervention is necessary to prevent irreparable harm to Illinois and Chicago and to protect them from defendants’ dangerous, unprecedented, and unlawful experiment in militarized law enforcement,” Newsom said in the brief.

Shumate, who is also representing the Trump administration in the Illinois case, had not yet filed his brief by Tuesday afternoon. However, a proposed amicus brief filed by the conservative America First Legal Foundation urges the court not to second-guess the president’s discretion in determining when federal laws are not being enforced at the local level.

It cites an 1827 Supreme Court ruling also considered by the 9th Circuit in the Los Angeles case, which firmly places the power to decide when to federalize the National Guard in the hands of the president.

The power to “call forth the militia ‘to execute the laws of the union, suppress insurrections, and repel invasions’ have arisen is exclusively vested in the President, and his decision is conclusive upon all other persons,” the decision in the case of Martin v. Mott read.

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