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WASHINGTON, D.C. – America First Legal (AFL), in partnership with Boyden Gray PLLC, has filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit defending President Trump’s constitutional and statutory authority to federalize the National Guard and enforce federal law in Oregon.
The case arises from a district court order effectively blocking President Trump’s lawful directive under 10 U.S.C. § 12406, which empowers him to call the National Guard into federal service. AFL argues that by enjoining the use of this presidential authority, the court disregarded powers granted by Congress and threatened the Executive Branch’s ability to protect federal officers, property, and the rule of law.
AFL’s brief explains that Oregon’s “ultra vires” claim is legally improper. The President is not an agency subject to judicial review. Ultra vires review applies only when a specific statutory command is violated—not merely when a state claims the President exceeded his discretion. Allowing such a review would invite any state to stall federal law enforcement by seeking to second-guess presidential action.
Even if judicial review were proper, AFL argues that President Trump’s actions were lawful and proportionate. Under Newsom v. Trump, presidential determinations are lawfully presumed “in pursuance of law” unless the opposite is shown.
The district court ignored that rule, limiting its review to a narrow timeframe and location—though no such limits exist in the statute. Despite acknowledging the “reality” that there are already increasingly large crowds protesting outside the ICE facility right now, the district court also failed to consider that the President’s decision to mobilize 200 guardsmen was proportional. Additionally, the court’s claim that this “diverted” Oregon’s resources also defies logic—those same guardsmen would still be guarding the same facility, whether under state or federal command.
AFL’s brief makes clear that without a stay, the federal government will suffer irreparable harm, while Oregon faces none. The U.S. Constitution assigns the duty to execute federal law to the President—not to activist judges or partisan state officials.
“The Constitution gives the President, not the courts, authority to defend the United States and enforce federal law,” said Gene Hamilton, President of America First Legal. “The Ninth Circuit should reaffirm that authority and stay the egregiously wrong decision of the district court below.”
Read the full amicus brief here.
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