PORTLAND, Ore. -- Following reports that "a factual discrepancy" existed in court filings used to justify President Trump's use of military troops against civilian protesters, the Ninth Circuit Court of Appeals has vacated a ruling granting the president sweeping discretion to federalize and deploy the National Guard in response to demonstrations at an ICE facility in Portland.

A coalition of civil liberties organizations -- including The Rutherford Institute, the ACLU and its state affiliates, and the Knight First Amendment Institute -- had filed an amicus brief warning that the President's unprecedented use of the military to silence and punish disfavored speech is precisely the kind of constitutional overreach the Founders sought to prevent.

"When government officials distort the facts to justify using military force against civilians, they betray both the public's trust and the Constitution they swore to uphold," said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. "This is exactly why the Framers stressed the need for a separation of powers that placed limits on executive authority -- to guard against overreach and abuse. As Thomas Jefferson warned, 'In questions of power then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.'"

Following protests at the Lindquist ICE facility in Portland, the Department of Homeland Security requested military assistance on Sept. 26, 2025, claiming the facility had "come under a coordinated assault by violent groups ... actively aligned with designated domestic terrorist organizations." Having already labeled such protests "a form of rebellion against the authority of the Government," President Trump ordered the Defense Secretary to deploy the National Guard under 10 U.S.C. § 12406.

Despite objections from Oregon's governor, 200 members of the Oregon National Guard were federalized. The State of Oregon, City of Portland, and Portland Police Bureau sued, arguing that the order violated the Tenth Amendment, the Posse Comitatus Act, and the separation of powers. Although the district court agreed and issued a Temporary Restraining Order (TRO) blocking the deployment, a Ninth Circuit panel later stayed the TRO, finding 2-1 that the federal government was likely to prevail.

A majority of judges on the Ninth Circuit subsequently voted to vacate that ruling and rehear the case en banc after it was revealed that the Trump administration had submitted an inaccurate figure regarding the number of Federal Protective Services (FPS) officers sent to provide backup in dealing with the protests at the ICE facility. The Ninth Circuit panel used those figures in the reasoning for its earlier decision. The government's credibility was further undermined when, in a letter to the Ninth Circuit acknowledging factual inaccuracies, federal officials conceded that "a statement was incorrect" in one of its briefs concerning the percentage of FPS inspectors deployed.

Hina Shamsi, Charlie Hogle, and others at ACLU advanced the arguments in the amicus brief.