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Appeals court heard arguments on whether Trump can deploy National Guard troops to Portland. (watch)
Last edited Fri Oct 10, 2025, 07:57 PM - Edit history (2)
The Ninth Circuit Court of Appeals heard oral arguments in the legal fight over the deployment of National Guard troops in Oregon.
watch:
The three judges hearing the case are Judge Susan P. Graber, Judge Ryan D. Nelson and Judge Bridget S. Bade. Judge Graber was appointed by President Bill Clinton in 1997. Judges Nelson and Bade were both appointed by Trump during his first term, in 2018 and 2019, respectively.
I can't vouch for anything Deputy Assistant Attorney General Eric McArthur argued because it was impossible to listen to the high-pitched squealing of fascism, but Oregon Assistant Attorney General Stacy Chaffin eventually held her own against constant interruptions and badgering from Judge Nelson, and refocused the hard questioning from the panel back onto actual facts on the ground.
I clipped out a few exchanges which I think make up most of the arguments and responses: (judges questioning in italics, AG Chaffin responding)
(excerpt)
...what in your view is the appropriate time frame to be looking at for determining whether the statutory standard is met from a kind of larger perspective?
That really is going to depend on the circumstances and we're not asking this court to create a very specifically defined set of factors that need to be evaluated in every case. But in this case, when the president has authorized the federalization of the National Guard in Oregon, we're asking this court to look at the circumstances around when that happened.
So, do we look from June 7th forward or do we look only at September or something else? isn't June around the time period of when the National Guard was federalized?
It was four months prior and that is significant because there can be and there was a very large delta between what was going on in June and what was actually going on when the president...
So could the president have in your view nationalize the guard in June?
I think we'd be having a different conversation and it would certainly be a closer call.
But so the president loses his right to do that in your view because he waits to see how things turn out on the ground.
I think in that moment the president can make the decision to manage the situation with the normal forces... I think it was June uh June 14th is probably the worst of the circumstances that happened and that day the threat of violence from the protesters lasted two hours, and it's with the use of normal forces that they could stop the kind of incursion of the protesters, push them back, and everyone uh kind of had the safety that was necessary with using the normal forces.
That stands in stark contrast to what happened in California. In California, there was a span of two days where they had consistent and increasing uh protest activity where they were penning down officers, throwing concrete chunks. They used dumpsters as battering rams to breach the facility. And the next day, the confrontation lasted for another 7 hours. Protesters boxed in officers, threw molotov cocktails, mortar style fireworks, rocks, they blocked traffic, and burned a vehicle.
That That's a little bit of the irony here is that because the president acted in June in LA. I mean, I don't know that we have the I I don't know, but I it seems like we don't have the same level of violence going on in LA right now. Um, but the president acted when there was violence and you're saying, "Well, if you don't hit it within a narrow window, you lose your right." That just seems unnaturally constrained. I mean, what the president did was bring in 115 uh uh FPS uh officials and that has quelled the violence in to some degree it seems, but it hasn't abaded it. I mean, there's still violence going on, right?
Well, what we have is the finding from the district court that the federal law enforcement officers unaided by military forces were capable of not only quelling the violence in June, but also preventing it through September...
I'd like to ask you about some specific um facts that I don't think are disputed. So, the facility was forced to close. It was inoperable for almost a month from June 13th to July 7th. And the declarations uh from the director of the federal protective services and the um field operations director from DHS state that the facility only reopened because of a surge of 115 federal protective services officers to Portland. Right?
So those are facts that occurred but that the district judge didn't consider because she apparently viewed them as out of time um that this had occurred. Are those not facts that are relevant to just for the president to determine the threat and and whether there's a threat to um DHS being able to enforce the 400 laws it's tasked with enforcing? I mean, they they couldn't operate a facility.
I don't know that that ever happened in LA. There were attempts to breach a facility. Here, a facility was actually closed for almost a month. And the record includes um more than one at least two attempts to burn the building down and uh vandal vandalizing the building uh so that uh it's difficult for the officers to move in and out of the building and increases danger. Um and the board the building is now currently boarded up and the city has told DHS they have to remove the boards. So that means the facility presumably will be inoperable again. So why is all of that irrelevant to the president's decision to federalize the the National Guard?
Well, I'd like to uh push back a little bit on the reframing here. What we have is in early June, um the facility was closed for two weeks during specific dates June 13th through July 7th.
That is not two weeks. It's about three and a half and I think it's properly characterized as nearly a month. But the facility was indeed closed...
I would again just direct this court back to the text of the statute which there is an expectation that the circumstances are going to be evaluated as they happen. And that makes sense because these are emergencies. These are unusual circumstances that would immediately require the president's attention and response.
If these are circumstances that are so significant that they could challenge kind of the fabric of our nation, the threat of invasion, they need an immediate an immediate response. And there's there isn't an an attempt to penalize the president for waiting. There is a requirement that the circumstances as they happen be so significant that we need to federalize the National Guard.
...actually for for number three, I don't think that's true. For three, it says the the president with regular uh uh forces can't execute the laws. I mean, I I I'm sort of trying to figure out how a district court of any nature is supposed to get in and question whether the president's assessment of of executing the laws is right or wrong.
Well, this court has already concluded that there is judicial review.
I understand that, but it's also great difference and I mean here and it has to be colorable. And so when the president comes in and says, "Look, we've got 115 uh FPS forces that aren't normally in Portland and we've had to move them. This is straining uh our ability to execute the laws." I don't understand how you can question the behind the scenes to say, "Oh, no, that can't be right." I mean, we don't have a view into what laws are trying to be executed or uh or how they're being impinged. But why isn't that colorable?
Because it's not it's not true. Unfortunately, it's not true that 115 FPS forces have been there since reopened in July... we do have in the record that a lot of the surge forces were returned before the president's announcement. So, I understand that these declarations kind of they they they discuss the worst of the circumstances, which I understand, but they're also written by supervisors who don't work in Portland.
But that's not what the statute says. The statute says the president can't execute the laws. That's an internal decisionmaking. And whether there's a ton of protests or low protests, they can still have an impact on his ability to execute the laws.
But this court has said that minimal interference isn't enough to raise to the the level of an inability to execute laws. And that's what we have here. We have, yes in June there were more intense protests, but we have the district court identifying that the the normal forces were able to manage those protests which is within the job responsibilities FPS generally. This is what we do they do...
We have declarations that say we're short staffed. We're having administrative difficulties because we don't have enough people. That is not a reason to bring the military into the streets of Portland or any other city in the United States. There needs to be something more than a deficit of employees to raise to the level of such a significant incursion into the sovereignty of a state...
The deployment is is limited just to the protection of federal personnel and federal property. So, I saw quite a bit of that language in the in the um motions um suggesting that National Guard members would be deployed to patrol the streets of Portland, which is I don't think the government has ever said that that is the intent. The idea is to protect the building um so they can remain open federal federal personnel.
But um what we do have though is an a history of a a very expansive and almost strained reading from the government of the district court orders. And it would- because this authorization is to protect any federal government location, any federal personnel, federal personnel go throughout the city to execute whatever their mission is (arrests). And there's no, as of the drafting, there's no specific limitation that they're going to only be in.
But why why would we enjoin it up front? I mean, I I want to be clear. I I'm very sensitive to the slippery slope argument that's being made here and the slippery slope argument that's being made in LA and around the country. I mean, is this is something that I mean, clearly the founders were concerned about.
There's been a lot of debate about how this should be used. So, I'm not trying to diminish that. It may well be that the forces are used in an improper way, but we don't have any evidence of that right now. All we have is a document that says we have a federal facility uh under attack or that violence has been, you know, um forced it to close down um and we want to protect it. That doesn't strike me as a glaring overuse on its face. Now, if what happens is what you're suggesting, uh that they do engage in law enforcement activities, then obviously we have another problem. But that's not even what the district court found. I mean, you couldn't find it. There's no there's no deployment at this point.
Well, certainly. I mean, we're not talking about like the the violations of the posse comitatus act at this point. It is a bit speculative but what we have is from Newsom. We know that this court has a role in evaluating the president's determinations. There is a direction that is this court's role.
This is the case though that represents the outer limits of the president's authorities. We have in the month leading up, not even the week, if we look at the entire month of September, the district court found there was one instance in the kind of the weeks leading up where protesters shine flashlights in the eyes of drivers.
There was I mean, if if that's true, then I think we've got a problem because I don't think that's what the record says. I mean, if the district court really said that's all that happened in September, then the district court's clearly erroneous. I didn't think the district court said that. I thought the district court actually detailed more than just one incident in September where uh flashlights were shined in the eyes.
Well, your honor, that that's the record though, even if we go back to...
Well, let we'll have to go into it, but I I I don't understand the record to be that for September. I understand it to have gone down, but not that there was one incident and that was it.
That's not us saying - there were certainly protests throughout the month of September but they were as I earlier mentioned and the district found small less than 30 people largely sedate generally peaceful - that's what was happening in September - I could take -
So there was an incident on Labor Day on September 1st where there were increased protests 125 people uh were involved in the activity. But what we have is the statement from FPS that they were not concerned with the group. That's at 46-1. They did that. This is the day when the guillotine was displayed, but that's arguably protected political speech. There were 40 people who remained after the larger group left and they did arrest a few.
After that, you have September 2nd, completely uneventful. September 3rd, there was a drone flying. There was some altercations. Everything was managed.
That's the consistency throughout the month of September. And there were occasions when there might be, you know, a larger number of protesters, but they were generally calm and sedate. And any of the sporadic and kind of more minimal criminal activity was appropriately handled by law enforcement resources.
And that's what's supposed to happen because the situations that we're talking about even the situations where it unfortunately could include an assault on a federal officer, that's a crime. That's a crime that was handled. They were arrested. And I understand that the US attorney's office had 22 uh they're prosecuting 22 defendants.
That's how this process is supposed to work. It's not that there is a protest. There is that and then you just send in the military. This is protected speech and for the most part it is calm and sedate...and it is so the drone, so the drone on I guess this is the uh Wednesday the suspect got violent and spit on agents. He was arrested and booked.
That's general criminal activity that's handled appropriately by law enforcement.
On the fourth you have 20 protesters and and then there's only 15 at 8:30. On the 5th, FPS said it was a small group with low energy, no calls for service. On the 6th, there was 50 to 60 active protesters, lots of noise. They were energized, no arrests. September 7th, seven people, low energy. September 8th, 30 people. There were an altercation between protester and a counterprotester, not against the facility.
This continues and and I'm happy to go through the record.
No, this is helpful. We'll we'll have to go through. I mean, I don't think there's any question that it's gone down in September, but part of the problem there is it's it's gone down largely because of a this influx of uh of other forces, which is outside of the regular use of those uh of those FPS officials.
So, does the record show us how many of the extra people remain in Portland, the FPS, and how many have been sent back - how many of the FPS officers from outside of Portland who came in remain in Portland now and how many have been sent back to somewhere else?
I haven't been able to find the exact numbers and much of the declarations don't have dates associated with them. So it is also very possible that those officers were sent in June and they have all returned. We have a note within the last week before the president's uh announcement that there was a surge of officers that came out and then there was no response of protest activity and so they went back to their respective offices.
And then even after I think that they they may have plussed up their numbers in anticipation of the president's announcement but then even then there was some increased protest activity but it went back it went back down.
Certainly they I mean they a lot of them have have gone and what we also know from one of the declarations is that FPS respond to even nonviolent protests. This is their this is their job. They they respond to potential threats and they would use those numbers of officers to go to any kind of that exercise of of speech just in case something becomes violent. So, this is squarely within their area of responsibility.
And I know we continue to talk about FBS, but we haven't even talked about any of the other federal officers that are at the president's disposal. We have a ton of law enforcement agencies under the president's control. Uh there's referencing in their declarations to circumstances again that are outside of what happened in Oregon or even if there was potentially a bomb threat. Well, we don't have anything that connects the bomb threat to these protesters. And if you do, you have significant law enforcement resources, ATF, FBI, that can respond to those potential threats. That's their job. That's what they do.
That the the the problem that I have with this argument that I I'm just trying to struggle with is, you know, the president gets to direct his resources as as he deems fit. And it just seems a little counterintuitive to me that the city of Portland can come in and say, "No, you need to do it differently."
Now, I understand there's a statute here and we're, you know, we're going to have to review that, but this goes to the level of difference that I think the president is entitled to in these circumstances. And it's not all driven, would you agree? It's not all driven by what we see on the streets. It's also driven to some degree by what's going on behind the scenes. And you don't have a full view into that.
I acknowledge that there is certainly information behind the scenes, but we don't have that in this record. And we don't have the defendants coming forward and putting forth anything that shows that the sporadic and minimal instances of violence, criminal activity that was appropriately handled by law enforcement at Portland is part of a greater hole.
I think the district court found that that the defendants did not present any evidence that the sporadic violence was part of an organized attempt to overthrow the government. And that's I think what they're asking this court to potentially look at when you're talking about, for example, the shooting in Dallas, that that that somehow increases the need. Well, that that goes to your rebellion or that goes to their rebellion designation, but that doesn't necessarily go I mean, you don't have to have that under
Well, I'm I'm sorry. I don't understand the well I I I mean enforcement of the laws you seem to say well there's no attempt to overthrow the government and I mean that's a fight within the context of whether there's a rebellion under subsection two but I don't know why that is relevant to subsection three which doesn't have anything to do with rebellion and is just the enforcement of laws.
Well, I agree that the the Dallas shooting shouldn't be the basis to send troops into Oregon. And if we're relying on that that third prong, then it certainly it it doesn't make that more or less probable.
...it's at this point at the end of their questioning of this witness that this judge tried to get an answer on something that had nothing to do with their ultimate ruling, and the witness refused to take the bait, restating her position and ask of the court.
...can I add just uh and maybe my colleagues have final questions too, but and I don't I don't want to focus on it, but I'm just perplexed and I think Judge Batty may have referenced this. Uh, so they they they b they reopen the the building. They board the windows for protection. And what does the city of Portland do? They issue a zoning violation. Are you defending issuing a zoning violation, telling them to take off the boards that were put up to respond to protesters? Do you think that that was maybe ill advised?
Luckily, in this case, it's not something that the court needs to decide to determine whether or not the president's determination was within a colorable basis or within the range of honest judgment. Um, but what we we do know is that the the circumstances at the time the president authorized the troops when whatever date that might be, they didn't raise to the level that was necessary under the statute. And we would ask this day that they be denied.
...what in your view is the appropriate time frame to be looking at for determining whether the statutory standard is met from a kind of larger perspective?
That really is going to depend on the circumstances and we're not asking this court to create a very specifically defined set of factors that need to be evaluated in every case. But in this case, when the president has authorized the federalization of the National Guard in Oregon, we're asking this court to look at the circumstances around when that happened.
So, do we look from June 7th forward or do we look only at September or something else? isn't June around the time period of when the National Guard was federalized?
It was four months prior and that is significant because there can be and there was a very large delta between what was going on in June and what was actually going on when the president...
So could the president have in your view nationalize the guard in June?
I think we'd be having a different conversation and it would certainly be a closer call.
But so the president loses his right to do that in your view because he waits to see how things turn out on the ground.
I think in that moment the president can make the decision to manage the situation with the normal forces... I think it was June uh June 14th is probably the worst of the circumstances that happened and that day the threat of violence from the protesters lasted two hours, and it's with the use of normal forces that they could stop the kind of incursion of the protesters, push them back, and everyone uh kind of had the safety that was necessary with using the normal forces.
That stands in stark contrast to what happened in California. In California, there was a span of two days where they had consistent and increasing uh protest activity where they were penning down officers, throwing concrete chunks. They used dumpsters as battering rams to breach the facility. And the next day, the confrontation lasted for another 7 hours. Protesters boxed in officers, threw molotov cocktails, mortar style fireworks, rocks, they blocked traffic, and burned a vehicle.
That That's a little bit of the irony here is that because the president acted in June in LA. I mean, I don't know that we have the I I don't know, but I it seems like we don't have the same level of violence going on in LA right now. Um, but the president acted when there was violence and you're saying, "Well, if you don't hit it within a narrow window, you lose your right." That just seems unnaturally constrained. I mean, what the president did was bring in 115 uh uh FPS uh officials and that has quelled the violence in to some degree it seems, but it hasn't abaded it. I mean, there's still violence going on, right?
Well, what we have is the finding from the district court that the federal law enforcement officers unaided by military forces were capable of not only quelling the violence in June, but also preventing it through September...
I'd like to ask you about some specific um facts that I don't think are disputed. So, the facility was forced to close. It was inoperable for almost a month from June 13th to July 7th. And the declarations uh from the director of the federal protective services and the um field operations director from DHS state that the facility only reopened because of a surge of 115 federal protective services officers to Portland. Right?
So those are facts that occurred but that the district judge didn't consider because she apparently viewed them as out of time um that this had occurred. Are those not facts that are relevant to just for the president to determine the threat and and whether there's a threat to um DHS being able to enforce the 400 laws it's tasked with enforcing? I mean, they they couldn't operate a facility.
I don't know that that ever happened in LA. There were attempts to breach a facility. Here, a facility was actually closed for almost a month. And the record includes um more than one at least two attempts to burn the building down and uh vandal vandalizing the building uh so that uh it's difficult for the officers to move in and out of the building and increases danger. Um and the board the building is now currently boarded up and the city has told DHS they have to remove the boards. So that means the facility presumably will be inoperable again. So why is all of that irrelevant to the president's decision to federalize the the National Guard?
Well, I'd like to uh push back a little bit on the reframing here. What we have is in early June, um the facility was closed for two weeks during specific dates June 13th through July 7th.
That is not two weeks. It's about three and a half and I think it's properly characterized as nearly a month. But the facility was indeed closed...
I would again just direct this court back to the text of the statute which there is an expectation that the circumstances are going to be evaluated as they happen. And that makes sense because these are emergencies. These are unusual circumstances that would immediately require the president's attention and response.
If these are circumstances that are so significant that they could challenge kind of the fabric of our nation, the threat of invasion, they need an immediate an immediate response. And there's there isn't an an attempt to penalize the president for waiting. There is a requirement that the circumstances as they happen be so significant that we need to federalize the National Guard.
...actually for for number three, I don't think that's true. For three, it says the the president with regular uh uh forces can't execute the laws. I mean, I I I'm sort of trying to figure out how a district court of any nature is supposed to get in and question whether the president's assessment of of executing the laws is right or wrong.
Well, this court has already concluded that there is judicial review.
I understand that, but it's also great difference and I mean here and it has to be colorable. And so when the president comes in and says, "Look, we've got 115 uh FPS forces that aren't normally in Portland and we've had to move them. This is straining uh our ability to execute the laws." I don't understand how you can question the behind the scenes to say, "Oh, no, that can't be right." I mean, we don't have a view into what laws are trying to be executed or uh or how they're being impinged. But why isn't that colorable?
Because it's not it's not true. Unfortunately, it's not true that 115 FPS forces have been there since reopened in July... we do have in the record that a lot of the surge forces were returned before the president's announcement. So, I understand that these declarations kind of they they they discuss the worst of the circumstances, which I understand, but they're also written by supervisors who don't work in Portland.
But that's not what the statute says. The statute says the president can't execute the laws. That's an internal decisionmaking. And whether there's a ton of protests or low protests, they can still have an impact on his ability to execute the laws.
But this court has said that minimal interference isn't enough to raise to the the level of an inability to execute laws. And that's what we have here. We have, yes in June there were more intense protests, but we have the district court identifying that the the normal forces were able to manage those protests which is within the job responsibilities FPS generally. This is what we do they do...
We have declarations that say we're short staffed. We're having administrative difficulties because we don't have enough people. That is not a reason to bring the military into the streets of Portland or any other city in the United States. There needs to be something more than a deficit of employees to raise to the level of such a significant incursion into the sovereignty of a state...
The deployment is is limited just to the protection of federal personnel and federal property. So, I saw quite a bit of that language in the in the um motions um suggesting that National Guard members would be deployed to patrol the streets of Portland, which is I don't think the government has ever said that that is the intent. The idea is to protect the building um so they can remain open federal federal personnel.
But um what we do have though is an a history of a a very expansive and almost strained reading from the government of the district court orders. And it would- because this authorization is to protect any federal government location, any federal personnel, federal personnel go throughout the city to execute whatever their mission is (arrests). And there's no, as of the drafting, there's no specific limitation that they're going to only be in.
But why why would we enjoin it up front? I mean, I I want to be clear. I I'm very sensitive to the slippery slope argument that's being made here and the slippery slope argument that's being made in LA and around the country. I mean, is this is something that I mean, clearly the founders were concerned about.
There's been a lot of debate about how this should be used. So, I'm not trying to diminish that. It may well be that the forces are used in an improper way, but we don't have any evidence of that right now. All we have is a document that says we have a federal facility uh under attack or that violence has been, you know, um forced it to close down um and we want to protect it. That doesn't strike me as a glaring overuse on its face. Now, if what happens is what you're suggesting, uh that they do engage in law enforcement activities, then obviously we have another problem. But that's not even what the district court found. I mean, you couldn't find it. There's no there's no deployment at this point.
Well, certainly. I mean, we're not talking about like the the violations of the posse comitatus act at this point. It is a bit speculative but what we have is from Newsom. We know that this court has a role in evaluating the president's determinations. There is a direction that is this court's role.
This is the case though that represents the outer limits of the president's authorities. We have in the month leading up, not even the week, if we look at the entire month of September, the district court found there was one instance in the kind of the weeks leading up where protesters shine flashlights in the eyes of drivers.
There was I mean, if if that's true, then I think we've got a problem because I don't think that's what the record says. I mean, if the district court really said that's all that happened in September, then the district court's clearly erroneous. I didn't think the district court said that. I thought the district court actually detailed more than just one incident in September where uh flashlights were shined in the eyes.
Well, your honor, that that's the record though, even if we go back to...
Well, let we'll have to go into it, but I I I don't understand the record to be that for September. I understand it to have gone down, but not that there was one incident and that was it.
That's not us saying - there were certainly protests throughout the month of September but they were as I earlier mentioned and the district found small less than 30 people largely sedate generally peaceful - that's what was happening in September - I could take -
So there was an incident on Labor Day on September 1st where there were increased protests 125 people uh were involved in the activity. But what we have is the statement from FPS that they were not concerned with the group. That's at 46-1. They did that. This is the day when the guillotine was displayed, but that's arguably protected political speech. There were 40 people who remained after the larger group left and they did arrest a few.
After that, you have September 2nd, completely uneventful. September 3rd, there was a drone flying. There was some altercations. Everything was managed.
That's the consistency throughout the month of September. And there were occasions when there might be, you know, a larger number of protesters, but they were generally calm and sedate. And any of the sporadic and kind of more minimal criminal activity was appropriately handled by law enforcement resources.
And that's what's supposed to happen because the situations that we're talking about even the situations where it unfortunately could include an assault on a federal officer, that's a crime. That's a crime that was handled. They were arrested. And I understand that the US attorney's office had 22 uh they're prosecuting 22 defendants.
That's how this process is supposed to work. It's not that there is a protest. There is that and then you just send in the military. This is protected speech and for the most part it is calm and sedate...and it is so the drone, so the drone on I guess this is the uh Wednesday the suspect got violent and spit on agents. He was arrested and booked.
That's general criminal activity that's handled appropriately by law enforcement.
On the fourth you have 20 protesters and and then there's only 15 at 8:30. On the 5th, FPS said it was a small group with low energy, no calls for service. On the 6th, there was 50 to 60 active protesters, lots of noise. They were energized, no arrests. September 7th, seven people, low energy. September 8th, 30 people. There were an altercation between protester and a counterprotester, not against the facility.
This continues and and I'm happy to go through the record.
No, this is helpful. We'll we'll have to go through. I mean, I don't think there's any question that it's gone down in September, but part of the problem there is it's it's gone down largely because of a this influx of uh of other forces, which is outside of the regular use of those uh of those FPS officials.
So, does the record show us how many of the extra people remain in Portland, the FPS, and how many have been sent back - how many of the FPS officers from outside of Portland who came in remain in Portland now and how many have been sent back to somewhere else?
I haven't been able to find the exact numbers and much of the declarations don't have dates associated with them. So it is also very possible that those officers were sent in June and they have all returned. We have a note within the last week before the president's uh announcement that there was a surge of officers that came out and then there was no response of protest activity and so they went back to their respective offices.
And then even after I think that they they may have plussed up their numbers in anticipation of the president's announcement but then even then there was some increased protest activity but it went back it went back down.
Certainly they I mean they a lot of them have have gone and what we also know from one of the declarations is that FPS respond to even nonviolent protests. This is their this is their job. They they respond to potential threats and they would use those numbers of officers to go to any kind of that exercise of of speech just in case something becomes violent. So, this is squarely within their area of responsibility.
And I know we continue to talk about FBS, but we haven't even talked about any of the other federal officers that are at the president's disposal. We have a ton of law enforcement agencies under the president's control. Uh there's referencing in their declarations to circumstances again that are outside of what happened in Oregon or even if there was potentially a bomb threat. Well, we don't have anything that connects the bomb threat to these protesters. And if you do, you have significant law enforcement resources, ATF, FBI, that can respond to those potential threats. That's their job. That's what they do.
That the the the problem that I have with this argument that I I'm just trying to struggle with is, you know, the president gets to direct his resources as as he deems fit. And it just seems a little counterintuitive to me that the city of Portland can come in and say, "No, you need to do it differently."
Now, I understand there's a statute here and we're, you know, we're going to have to review that, but this goes to the level of difference that I think the president is entitled to in these circumstances. And it's not all driven, would you agree? It's not all driven by what we see on the streets. It's also driven to some degree by what's going on behind the scenes. And you don't have a full view into that.
I acknowledge that there is certainly information behind the scenes, but we don't have that in this record. And we don't have the defendants coming forward and putting forth anything that shows that the sporadic and minimal instances of violence, criminal activity that was appropriately handled by law enforcement at Portland is part of a greater hole.
I think the district court found that that the defendants did not present any evidence that the sporadic violence was part of an organized attempt to overthrow the government. And that's I think what they're asking this court to potentially look at when you're talking about, for example, the shooting in Dallas, that that that somehow increases the need. Well, that that goes to your rebellion or that goes to their rebellion designation, but that doesn't necessarily go I mean, you don't have to have that under
Well, I'm I'm sorry. I don't understand the well I I I mean enforcement of the laws you seem to say well there's no attempt to overthrow the government and I mean that's a fight within the context of whether there's a rebellion under subsection two but I don't know why that is relevant to subsection three which doesn't have anything to do with rebellion and is just the enforcement of laws.
Well, I agree that the the Dallas shooting shouldn't be the basis to send troops into Oregon. And if we're relying on that that third prong, then it certainly it it doesn't make that more or less probable.
...it's at this point at the end of their questioning of this witness that this judge tried to get an answer on something that had nothing to do with their ultimate ruling, and the witness refused to take the bait, restating her position and ask of the court.
...can I add just uh and maybe my colleagues have final questions too, but and I don't I don't want to focus on it, but I'm just perplexed and I think Judge Batty may have referenced this. Uh, so they they they b they reopen the the building. They board the windows for protection. And what does the city of Portland do? They issue a zoning violation. Are you defending issuing a zoning violation, telling them to take off the boards that were put up to respond to protesters? Do you think that that was maybe ill advised?
Luckily, in this case, it's not something that the court needs to decide to determine whether or not the president's determination was within a colorable basis or within the range of honest judgment. Um, but what we we do know is that the the circumstances at the time the president authorized the troops when whatever date that might be, they didn't raise to the level that was necessary under the statute. And we would ask this day that they be denied.
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...is how I read it. 
appear to be inclined to give more “deference” to the president. I completely freaked out when I read this earlier today in The Oregonian. :
