The Ninth Circuit — that Ninth Circuit — handed down two rulings Tuesday on the Portland ICE facility protests. Same three judges, same 2-1 split, both injunctions vacated, both wins for the Trump administration.
The setup: months of demonstrations outside the Portland ICE building, where, by the appellate court’s own description, some protesters assaulted federal officers, vandalized property, blocked access, and threw objects at law enforcement. Officers responded with tear gas, pepper balls, and chemical agents. Two lawsuits followed, and two Democrat-appointed district judges did what Democrat-appointed district judges in Oregon do, which is issue an injunction forbidding federal law enforcement from doing their jobs.
Judge Amy Baggio handled the first. Residents of an apartment complex across the street argued that chemical agents kept drifting into their homes, and she restricted the agents’ use on a Fifth Amendment substantive due process theory.
Judge Eric Tung, joined by Judge Kenneth Lee — both Trump appointees — took that apart using the Supreme Court’s landmark abortion decision in Dobbs v. Jackson Women’s Health Organization. Yes, really.
The connection is cleaner than it sounds. Substantive due process is the doctrine courts use to find rights that aren’t written anywhere in the Constitution. Dobbs set the discipline for that: before a court recognizes an unwritten right, it has to establish the right is deeply rooted in this nation’s history and tradition. Plaintiffs here leaned on the “shocks the conscience” standard, which is the elastic formula judges have historically used to reach whatever result they preferred. Tung held that’s not enough. You need the shock and the historically rooted liberty, and no such right exists against incidental exposure to chemical agents deployed during a disruptive demonstration.
That’s Dobbs doing precisely the work it was written to do. The decision was never only about abortion. It was a rule about judicial invention, and here it stopped a district judge from conjuring a new constitutional right out of a tear gas cloud four years later. Every one of the people who spent 2022 screaming that Dobbs was lawless now gets to watch its reasoning applied to a case with nothing to do with abortion, and watch it hold.
The second case, Dickinson, involved protesters and journalists claiming officers targeted them for their speech. Lee wrote for the same majority: plaintiffs hadn’t shown officers acted because of protected expression, which is a distinct question from whether force was excessive. The panel also held that police don’t have to wait for an imminent threat of physical injury before dispersing a crowd — serious disorder, criminal trespass, and obstruction will do.
Then there was the part of the lower court’s order directing the parties to negotiate changes to the markings on federal officers’ uniforms. Lee’s response has the ring of something that will get quoted for years: courts cannot be the couture of the Executive Branch.
Judge Ana de Alba, a Biden appointee, dissented in both, arguing the shocks-the-conscience test should stand on its own without the historical inquiry — which is to say, arguing for exactly the open-ended judicial latitude Dobbs foreclosed.
Neither ruling declares every use of force in Portland lawful. What they declare is narrower and more valuable: that a district judge may not invent rights without a historical foundation, and may not run a federal agency from the bench.
For two years the Trump administration has had to win policy twice — once at the ballot box, once against whichever left-wing, Democrat-appointed judge in Portland or San Francisco or Boston got the case. Tuesday, in the circuit that invented the practice, two Trump appointees drew the line.
Elections have consequences. So do judicial appointments, which is worth remembering with the Senate changing hands in January while John Thune sits on his.
