U.S. District Judge Karin J. Immergut could make a ruling as early as Friday on whether to keep her broader order in place that bars federal deployment of any National Guard troops to Oregon.
Immergut has set a hearing by phone for 10 a.m. Friday to discuss the federal government's motion to throw out the temporary restraining order.
Immergut could potentially rule at the end of the hearing, as she did when she first granted the order and when she extended it for another 14 days.
Immergut also directed lawyers to be ready at the hearing to discuss the "effect" of the pending call by a judge on the 9th U.S. Circuit Court of Appeals to have all active judges on the court vote on whether an 11-judge 9th Circuit panel should take up the case.
If formed, the 11-judge panel would review Monday's 2-1 ruling by a three-judge 9th Circuit panel that placed a hold on Immergut's first restraining order, which barred the federal deployment of only Oregon troops from coming to Portland protect the U.S. Immigration and Customs Enforcement building and federal officers there.
The two circuit judges who ruled in the majority on Monday called it a "common sense conclusion" that Immergut's first and second temporary restraining orders "rise or fall together on the merits of the issues raised."
The federal government had formally challenged only Immergut's first restraining order but now has argued that Immergut should abandon the second order based on the 9th Circuit opinion.
The state and the city of Portland oppose the federal deployment of Oregon National Guard or any out-of-state troops to Portland, arguing President Donald Trump has called for the Guard based on a false narrative of a war-ravaged city.
Immergut issued the second order on Oct. 5, a day after her first order, when the Trump administration sent California National Guard troops to Oregon and said it might also send Texas National Guard troops to Oregon. She has since extended her second order until Nov. 2.
Lawyers for the state of Oregon said Monday's divided 9th Circuit ruling shouldn't be considered "final" until after a possible reconsideration by an 11-judge appellate panel.
But the Trump administration's lawyers responded that "speculation," that the three-judge panel's ruling "might be vacated by a higher authority" does not eliminate Immergut's "obligation to comply" with it as long as it remains in effect.
They also argued that there's "no valid reason to treat out-of-state Guardsmen differently from in-state Guardsmen."
"Once federalized, Guardsmen are fully federal officers, no different from other federal officers moving across state lines," wrote U.S. Department of Justice attorney Jody D. Lowenstein.
Brian Marshall, an Oregon senior assistant attorney general, noted in a court filing this week that the Trump administration has extended the president's deployment of out-of-state troops in Oregon.
An Oct. 16 memo from the executive secretary of the U.S. Defense Department disclosed that Defense Secretary Pete Hegseth extended the federal deployment of 200 California National Guard members to Oregon from Nov. 4 to Feb. 2 and 200 Texas National Guard members to Oregon through Dec. 4.