Oregon — The fight over whether a president can send National Guard troops into a state without permission is far from over. This week, the Ninth Circuit Court of Appeals threw out its earlier ruling in State of Oregon v. Trump and agreed to rehear the case with all active judges participating. The move signals that the court sees major constitutional questions that need a fresh look.
The case began after President Donald Trump deployed National Guard units to several cities, including Portland, during a 2025 crime crackdown. Oregon and the City of Portland argued that the President overstepped his authority, especially since the state did not request military help.
By taking the case en banc, the Ninth Circuit wiped away the previous decision and opened the door to possibly rewriting how much power a president has to send troops into states.
The court also released two sharply different statements from judges, offering a preview of the debate ahead.
Judge Jay Bybee, writing in support of rehearing the case, argued that the Constitution’s Domestic Violence Clause requires the federal government to wait for a state to ask for help before sending in the National Guard. He pointed to early American history, such as the Whiskey Rebellion and desegregation conflicts, showing that presidents traditionally waited for governors to request troops. According to Bybee, allowing unilateral deployments threatens state sovereignty and risks federal overreach. He also said courts should be allowed to review whether a President’s stated reasons for deploying troops are legitimate or just a pretext.
But Judge Lucy Tung pushed back, saying the Constitution gives Congress, and through Congress, the President, the power to decide when the National Guard is needed to enforce federal laws. Her statement argues that the President does not need a state’s permission, and that courts should not second-guess a president’s determination that federal law cannot be carried out without military help.
The clash highlights what is at stake: whether states can block unwanted troop deployments, or whether a president has wide authority to act during what he sees as a national emergency.
For now, nothing in the ruling immediately stops the federal government from using the National Guard. But the en banc review creates major uncertainty. Depending on how the court rules, future presidents may face new limits—or courts may confirm broad federal power to intervene even when governors say no.
A final decision is expected sometime in 2026, and it could reshape the balance of power between states and Washington for years to come.
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