The United States Court of Appeals for the Ninth Circuit has ordered an en banc rehearing in a high-stakes challenge brought by the State of Oregon and the City of Portland against President Donald J. Trump and top officials in his administration, vacating a prior panel decision and spotlighting a rarely invoked constitutional provision as a potential check on federal military interventions in state affairs. The amended order, filed on December 8, 2025, appends a pointed statement from Senior Circuit Judge Jay S. Bybee, who argues that the Domestic Violence Clause of the U.S. Constitution—long overlooked—imposes strict limits on the president’s authority to deploy the National Guard into a state without its consent, urging the full court to rethink a deferential standard that has shielded such actions.
The case revolves around the Trump administration’s invocation of 10 U.S.C. § 12406 to federalize and deploy National Guard units into Oregon amid ongoing disputes over enforcement of federal immigration laws, without a request from state officials. Plaintiffs contend this move constitutes unconstitutional “intermeddling” in state sovereignty, echoing Framers’ fears of federal overreach. The prior panel’s ruling, published at 157 F.4th 1013 (9th Cir. 2025), applied a lenient “colorable assessment” test from Newsom v. Trump, 141 F.4th 1032 (9th Cir. 2025), deferring to the president’s judgment so long as it fell within a “range of honest judgment.” Bybee’s statement, issued in support of the en banc review, calls this standard insufficiently protective of federalism, proposing a more rigorous judicial scrutiny tied to the Constitution’s original design.
The Core Dispute: Federal Militia Power vs. State Sovereignty
At issue is whether President Trump, acting through Secretary of Defense Peter Hegseth and Secretary of Homeland Security Kristi Noem, can unilaterally call National Guard troops into Oregon under § 12406—a statute rooted in Congress’s Militia Clause powers (U.S. Const. art. I, § 8, cl. 15) to execute federal laws, suppress insurrections, or repel invasions—without the state’s invitation. The law allows such calls when the president deems regular forces insufficient, but orders must flow through state governors. Oregon argues this deployment bypassed state authority, turning federal law enforcement into a pretext for overriding local control over “domestic violence” matters like riots or unrest.
Bybee’s 10-page statement, drawing on constitutional history, frames the clash as a fundamental tension between national security needs and state autonomy. He traces the Framers’ dual concerns: empowering the U.S. to defend against external threats while preventing a “man on the white horse” from seizing power through domestic military force, as warned by Anti-Federalists like George Mason. The Militia Clause grants Congress authority to “call forth” the militia, but Bybee insists it is cabined by the Domestic Violence Clause (art. IV, § 4), which obligates federal protection against internal threats only “on Application of the Legislature, or of the Executive (when the Legislature cannot be convened).”
In Bybee’s view, this “conditional obligation” inverts the Declaration of Independence’s complaint against standing armies imposed without legislative consent, preserving states’ primary role in quelling crime, riots, and insurrections. He describes the clauses as intertwined: The Militia Clause enables federal response, but the Domestic Violence Clause conditions it on state request, creating a “vertical separation of powers” that immunizes states from uninvited federal troops. Without this limit, Bybee warns, minor gatherings could be labeled “insurrections,” justifying endless interventions—a fear echoed in ratification debates.
Historical Overlooked: The Domestic Violence Clause as a Federalism Firewall
Bybee’s analysis delves into originalism, arguing the Preamble’s pledge to “insure Domestic Tranquility” positions the federal government as guarantor, not primary enforcer, of internal peace—with “insure” evoking suretyship rather than direct agency. He contrasts this with states’ reserved powers to punish crimes and suppress rebellions, noting the Constitution’s distinct terms for lawlessness (e.g., “insurrections,” “rebellions,” “crime”) to delineate federal lanes.
Under § 12406, Bybee explains, federal calls for militia service mirror the Militia Clause in reverse order but must respect the Domestic Violence Clause’s guardrails. For internal threats like executing laws amid state resistance, intervention requires a state’s plea; otherwise, it risks pretextual overreach. Citing early commentators like St. George Tucker and Joseph Story, Bybee posits that without state application, federal action lacks constitutional footing, shifting the judicial role from rubber-stamping to verifying genuine need over “colorable” claims.
The statement takes no position on the merits but urges the en banc panel to adopt a heightened standard, such as requiring evidence of a bona fide insurrection or state incapacity, rather than mere presidential discretion. This could upend precedents deferring to executive judgments in domestic deployments, potentially affecting similar actions in other circuits.
Broader Implications and Procedural Path Forward
The en banc order, approved by a majority of nonrecused active judges under Fed. R. App. P. 40(c) and Ninth Circuit Rule 40-3, also includes a statement from Judge Tung respecting the rehearing grant. California, intervening as a plaintiff-pending, supports Oregon’s bid to block the deployments, highlighting risks to blue-state resistance against federal policies. The decision to vacate the panel opinion signals deep circuit divisions, with Bybee noting such supportive statements are “unusual, but not unprecedented.”
Legal observers see this as a rare revival of the Domestic Violence Clause, often sidelined in modern jurisprudence, amid rising tensions over federalism in immigration and protest enforcement. A full en banc ruling could redefine presidential militia powers, influencing Trump administration strategies nationwide.