The 9th Circuit Court of Appeals will rehear an appeal regarding Oregon National Guard deployment. By agreeing to reconsider the case, the court vacated an earlier ruling that would have allowed for troops to deploy to Portland.

The decision comes after a panel of three judges sided with the Trump administration on October 20, finding his order to deploy Oregon National Guard troops to Portland was legally sound. In that 2-1 ruling, 9th Circuit Judges Ryan Nelson and Bridget Bade found the federal government had grounds to deploy troops to protect the ICE facility in Portland amid ongoing protests.

Judge Susan P. Graber, who dissented, argued the president’s claims about the threat level on the ground in Portland weren’t based on factual evidence and military deployment, which is only supposed to be used in extreme circumstances, wasn’t warranted. Graber urged an “en banc” review, calling for the case to be reheard by a full panel of 11 judges. Within hours, her colleagues were deciding whether to do just that. 

Before the 9th Circuit Court issued its decision late Tuesday, the same court issued a late-day, unexpected order on Friday, October 24 that served as a stopgap to prevent any troop deployment. The action signaled a willingness by the court to consider potential flaws in the 2-1 decision that sided with the Trump administration.

In addition to the Oregon Attorney General's Office pushing back on Trump in court, Portland city officials have come out swinging against the president's plan to use a militia to respond to protests. The Portland City Council recently passed a resolution aimed at preventing federal overreach, while the mayor and city attorney have bluntly addressed excessive use of force on protesters by federal agents stationed at the ICE facility. Portland’s anti-ICE protests have been consistent, but manageable, according to local police. 

It’s unclear when the en banc review will take place. A trial in Oregon’s lawsuit against the Trump administration–the same case that led to the temporary restraining orders that later triggered an appeal to the 9th Circuit Court–starts Wednesday morning in US District Court.

“This ruling shows the truth matters and that the courts are working to hold this administration accountable,” Oregon Attorney General Dan Rayfield said in a statement issued Tuesday evening. “The Constitution limits the president’s power, and Oregon’s communities cannot be treated as a training ground for unchecked federal authority. The court is sending a clear message: the president cannot send the military into U.S. cities unnecessarily. We will continue defending Oregon’s laws, values, and sovereignty as this case moves forward and our fight continues in the courts.”

For some, the Appeals Court’s decision to rehear the case isn’t a surprise, but it’s also incredibly telling.

Chris Geidner is a legal expert who previously practiced law and now runs the site Law Dork, offering analysis of high-profile cases. 

“Given the fact that tonight’s vote in favor of en banc review comes so closely after the announcement that they rejected en banc review in the California case, it is clear that a majority of the court felt that, even at this early stage of the litigation, it was inappropriate to allow last week’s order to stand,” Geidner told the Mercury.

He said the Appeals Court’s decision on October 20 was problematic for a number of reasons.

“The panel decision was really bad,” Geidner said, noting the appellate judges overlooked critical findings made by US District Judge Karin Immergut weeks prior, when she issued two temporary restraining orders to block troop deployment. He says Immergut was doing what judges are supposed to do, which is examine all available evidence, not just the claims being asserted by the president and his cabinet. 

“The whole argument that she was not deferring to [Trump’s] assessment, and was reaching her own facts, was ignoring the point of a trial judge,” Geidner said.

Oregon’s case against the Trump administration over the government’s forced National Guard deployment is one of four that have been filed across the United States since June. A case out of Illinois has been appealed to the Supreme Court.

Tuesday’s decision means the temporary restraining orders that are currently in place will remain in effect.