“By its plain text, § 12406(3) requires only a determination that ‘the President is unable with the regular forces to execute the laws of the United States.’ The statute delegates the authority to make that determination to the President and does not limit the facts and circumstances that the President may consider in doing so,” the appeals courts’ majority said, noting that the president, not a district court, is authorized to determine when the government can’t execute laws without the help of the National Guard.

“Indeed, the inherently subjective nature of this evaluation demonstrates that the President has the authority to identify and weigh the relevant facts under § 12406(3),” the ruling continued.

Circuit Judges Ryan Nelson and Bridget Bade, both Trump appointees, joined the majority opinion.

Nelson also wrote a concurring opinion to emphasize that according to Supreme Court precedent, the president’s determinations under the statute are not reviewable by courts, the state of Oregon has “serious standing issues” in the case, the Trump administration’s arguments are “bolstered by the history and tradition of the early Militia Acts,” and that the administration’s “proportionate response to the events in Portland” helps its case.

Circuit Judge Susan Graber, an appointee of former President Bill Clinton, was the lone dissenter, claiming in her opinion that the majority’s ruling “erodes core constitutional principles,” including states’ control over their militias and First Amendment rights to protest.

The ruling from the Ninth Circuit panel Monday marks the second time a panel on the circuit has allowed the Trump administration to deploy troops to protect federal property, after lower district courts had blocked deployment of troops. The first instance came in June, when U.S. District Judge Charles Breyer blocked the deployment of the National Guard to Los Angeles, a ruling later lifted by a different panel on the Ninth Circuit.

TRUMP ADMINISTRATION ASKS SUPREME COURT TO ALLOW NATIONAL GUARD DEPLOYMENT IN CHICAGO

Monday’s ruling also furthers a split between the Ninth Circuit and the Seventh Circuit over whether the Trump administration may deploy troops to protect federal immigration officials, after the Seventh Circuit denied the administration’s request to allow the deployment of National Guardsmen to Chicago last week.

The Trump administration has appealed the Seventh Circuit’s ruling to the Supreme Court’s emergency docket, marking the first time the president has had to ask the high court to intervene on the matter. With two federal appeals court circuits holding different rulings on the matter, it could increase the chances the high court seeks a full review of whether Trump may deploy the National Guard to protect federal assets and personnel in cities.