In a near replay of summertime litigation that followed President Donald Trump”s deployment of the National Guard in California, a panel of judges on the 9th Circuit U.S. Court of Appeals appeared skeptical Thursday as Oregon asked the court to halt the administration’s federalization of troops in Portland.

The panel, including Trump-appointed U.S. Circuit Judges Ryan Nelson and Bridget Bade, and Bill Clinton-appointed U.S. Circuit Judge Susan Graber, heard first from DOJ Deputy Assistant Attorney General Eric McArthur and second from Oregon Assistant Attorney General Stacy Chaffin.

While the DOJ asserted that judges can’t “second-guess the Commander-in-Chief’s military judgments” and determinations about the dangers of a “rebellion,” Oregon answered that Trump’s determinations, even if entitled to “great deference,” are nonetheless “subject to judicial review” and must “reflect a colorable assessment of the facts and law within a ‘range of honest judgment.'”

For the federal government, McArthur asked the panel for a stay pending appeal of the first order so the second temporary restraining order would necessarily be “dissolved.”

Calling Immergut’s order “heretofore unprecedented,” McArthur said Trump was well within his authority to call up the National Guard, considering the ICE facility in Portland and the federal officers who work there have “faced a steady stream of violence” and threats thereof.

The judges pressed McArthur on the meaning of “rebellion” under 10 U.S. Code § 12406, and he answered with “a deliberate, organized resistance” against a lawful authority such that Trump is “unable with the regular forces to execute the laws of the United States.”

McArthur added that his view of the term “regular forces” includes Department of Homeland Security (DHS) officers and Federal Protective Service (FPS) officers, not local law enforcement.

McArthur said it’s not for the courts to question Trump’s determinations, which were articulated in a Truth Social post calling Portland currently “war ravaged” and “under siege” by “Antifa.”

For oral arguments, however, McArthur was willing to take the “deferential standard of review” in California Gov. Gavin Newsom’s case as “the law of the circuit.”

The “key evidence,” McArthur said, is violence, threats of violence, and the “unsustainable” diversion of federal officers to protect federal property.

The historical evidence from earlier this summer, when the ICE facility had to be shut down for three weeks, matters, McArthur added.

The Beaver State, resisting the federalization of the National Guard as unwarranted and untethered to the facts on the ground in Portland, just as Illinois currently is, acknowledged that Trump’s determinations are “entitled to great deference,” but cautioned that such deference “has a limit, and that limit is this case.”

If Trump’s determinations are “untethered to reality,” that can hardly mean he should be able to avoid judicial review — and calling Portland “war ravaged” or “under siege” is “not accurate” on its face, Chaffin argued.

Nelson then grilled Chaffin, claiming Oregon’s lawyer was essentially trying to penalize Trump for not deploying the National Guard in June — when the ICE facility was shut down — but, instead, as a last resort in September.

Chaffin pushed back by saying “invasions and rebellions are extreme emergencies,” with “large-scale” disruption of regular government operations.

Chaffin, referring to Immergut’s order, said that as of September, protests were “generally peaceful,” “largely sedate” and involved “small” groups, hardly a threat on a scale of “rebellion.”

Had Trump federalized the National Guard in June, Chaffin argued, “I think we would be having a different discussion,” and the case would be a “closer call.”

“So the president loses his right to do that, in your view, because he waits?” Nelson asked, incredulous. “That just seems unnaturally constrained.”

Bade appeared to agree, pointing out that the ICE facility was closed for “nearly a month,” from June 13 to July 7, and reopened after a “surge” of federal protective officers was sent to Portland.

“A facility was actually closed” for more than three weeks, or “nearly a month,” there were attempts to set the facility on fire, and the building was boarded up, Bade said.

“Why is all of that irrelevant to the president’s decision to federalize the National Guard?” she asked, wondering if only things that happened in September were ripe for Trump’s consideration.

To make her case, Chaffin pointed to the statutory language that uses the term “is” when describing whether the president “is” unable to, with regular forces, execute the laws.

Nelson said that seemed “like such a tortured reading” of the statute, such that it wasn’t clear to him if President Abraham Lincoln “could have brought in forces when he did.”

“Why is that not [a] colorable [assessment]?” he pressed Chaffin.

“Because it’s not true,” Chaffin answered.

Nelson was not convinced that a district court judge could question the internal deliberations of the executive simply by looking around at what’s happening outside and forming a judgment, when there have been declarations from the government that the situation on the ground is “impeding their ability to execute the laws.”

Chaffin, warning of a slippery slope, answered that “there needs to be something more than a deficit of employees to raise to the level of such a significant incursion into the sovereignty of the states.”

Nelson quickly dispensed with the slippery slope argument.

“It may well be that the forces may be used in an improper way, but we don’t have evidence of that right now,” he said.

The National Guard protecting a federal building is one thing, but engaging in law enforcement activities is a different discussion, the judge explained.

On rebuttal, McArthur stated the administration’s case plainly: “The president is entitled to say enough is enough.”