The full U.S. appeals court in San Francisco will vote on whether to reconsider a ruling Monday by a three-judge panel that for now allows President Donald Trump to deploy troops to Portland, Oregon, over the objection of state and local leaders.

The panel decided 2-1 that a lower court judge who temporarily blocked the deployment of 200 Oregon National Guard members to Portland had failed to give sufficient deference to Trump’s decision and downplayed acts of violence by people protesting the president’s immigration crackdown.

“The evidence the president relied on reflects a colorable assessment of the facts and law within a range of honest judgment,” the majority said, rejecting Oregon’s argument that Trump’s assessment of the protest situation in Portland was out-of-date and not made in good faith. “We thus conclude that defendants are likely to succeed on the merits of their appeal.”

The two judges who sided with the administration were both appointed by Trump. The third, an appointee of former President Bill Clinton, wrote a blistering dissent that called for a larger panel of her colleagues to reconsider the ruling through a so-called en banc review — a request typically made by the party that loses the decision.

“I urge my colleagues on this court to act swiftly to vacate the majority’s order before the illegal deployment of troops under false pretenses can occur,” Judge Susan Graber wrote. “Above all, I ask those who are watching this case unfold to retain faith in our judicial system for just a little longer.”

Two hours after the decision was handed down, the judge who handles en banc requests for the appeals court said a vote had been called for by another judge and ordered Oregon and the Trump administration to file briefs by Oct. 22 on whether they agree a review is warranted.

The majority decision for now is a major boost for the administration’s effort to send the military into Democratic-led cities like Portland, which Trump has claimed without evidence is “burning to the ground” and overrun by “insurrectionists.”

The ruling doesn’t directly affect a second order by the same lower court judge that blocked the deployment of troops from any state, so an immediate deployment may not be possible. But the government on late Monday asked the judge to dissolve that order so that the deployment can move ahead while the case proceeds.

The 2-1 appellate decision focused on a series of violent acts by protesters starting in early June at a single Immigration and Customs Enforcement facility outside downtown Portland, including a failed attempt to burn the building down and the use of fireworks by protesters.

The state and city argued those incidents were isolated and had been handled effectively by local law enforcement, but the appeals court agreed with the administration it was a troubling pattern that was draining federal resources and impeding the government’s ability to enforce the law.

The move by Trump in Portland follows earlier deployments of troops to Los Angeles and Washington, D.C., where he claimed crime is out of control and some federal property was in danger from protesters. The president’s recent attempt to send troops to Chicago was temporarily halted Oct. 9 by a judge in that city. A federal appeals court largely left that order in force.

On Monday, Illinois and Chicago officials urged the Supreme Court to reject Trump’s bid to deploy the National Guard in that city, saying the justices should respect the judge’s conclusion in a temporary ruling that troops weren’t needed to keep immigration protests under control.

“State and local law enforcement officers have handled isolated protest activities in Illinois, and there is no credible evidence to the contrary,” Illinois Attorney General Kwame Raoul argued.

The filing comes three days after Trump called on the Supreme Court to intervene for the first time in his push to use the military in places where people are demonstrating against his immigration crackdown.

‘Lawful authority’

The Portland ruling is temporary in nature but gives an indication of how the appeals court judges view the arguments in the case. A three-day trial on the merits is set to start in Portland on Oct. 29, meaning the appeals court may soon be asked to review the case again.

“As we have always maintained, President Trump is exercising his lawful authority to protect federal assets and personnel following violent riots that local leaders have refused to address,” White House spokeswoman Abigail Jackson said in a statement. “This ruling reaffirms that the lower court’s ruling was unlawful and incorrect.”

The two Trump appointees on the panel are Ryan D. Nelson and Bridget Bade.

Oregon Attorney General Dan Rayfield said in a statement that he agrees the ruling should be reviewed by a larger 9th Circuit panel.

“Today’s ruling, if allowed to stand, would give the president unilateral power to put Oregon soldiers on our streets with almost no justification,” Rayfield said. “We are on a dangerous path in America.”

Oregon Governor Tina Kotek told reporters that the decision “attacks the sovereign authority of states in control of their militia and also takes away the First Amendment rights to assemble and object to government actions that we don’t agree with.”

The majority agreed with the Trump administration that the president’s use of federal troops was permitted under a U.S. law that allows National Guard members to be brought under federal control when the president is unable to enforce the law with regular forces.

State National Guard troops are under the control of individual governors, but the administration has argued U.S. law permits the president to federalize the troops in the event of a rebellion, a foreign invasion or when the president is unable to execute the laws using regular law enforcement.

200 Guardsmen

In Oregon, U.S. District Judge Karin Immergut, a Trump appointee, said there were no facts to support the president’s claims on social media that Portland was ravaged by war and that anarchists and professional agitators were trying to burn down federal property and other buildings.

The case is State of Oregon v. Trump, 25-6268, U.S. Court of Appeals for the 9th Circuit (San Francisco).

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(With assistance from Greg Stohr and Anna Edgerton.)

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