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Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.

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Speaker 2: In the biggest tech antitrust case in three decades, Google

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Speaker 2: avoided a breakup. A DC federal judge ruled against the

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Speaker 2: government's most severe proposals for remedies, like a forced sale

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Speaker 2: of its Chrome browser. Judge Ahme Meta had already found

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Speaker 2: in August of last year that Google illegally dominated the

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Speaker 2: search market by paying more than twenty five billion dollars

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Speaker 2: to Apple and other companies to make its search engine

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Speaker 2: the default on smartphones and web browsers. This ruling was

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Speaker 2: all about the fix, and Google will have to make

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Speaker 2: some concessions, including sharing online search data with rivals and

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Speaker 2: ending exclusive contracts for distribution. My guest is anti trust

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Speaker 2: expert Harry First, a professor at NYU lost Harry on

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Speaker 2: the Department of Justice website. It says Department of Justice

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Speaker 2: wins significant remedies against Google, but this falls far short

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Speaker 2: of the severe remedies that the government wanted. How much

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Speaker 2: of a setback is it for the government in its

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Speaker 2: attempt to curb the power of the biggest tech companies.

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Speaker 3: Well, you know, people often talk about things as being

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Speaker 3: a win win and that's a good thing. So I

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Speaker 3: think that the judge's decision is a win win, but

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Speaker 3: not a good thing. I view it as win in

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Speaker 3: sort of eight point type on the government side and

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Speaker 3: win in sort of sixteen point type on Google side.

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Speaker 3: So here's what I mean. It's not a significant victory

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Speaker 3: for the Justice Department. They did win some things, and

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Speaker 3: you know, maybe that will help bring some competition into search.

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Speaker 3: But I think Google won a lot by not lose

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Speaker 3: using very much. They get to keep Chrome. A lot

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Speaker 3: of the remedies that the department asked for and got

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Speaker 3: even were cut down, circumscribed, diminished. And you know, whether

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Speaker 3: what the judge did will end up changing the search business,

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Speaker 3: I doubt but who knows. But we've now passed the

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Speaker 3: point where the question will be will we get competition?

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Speaker 3: And the question will just be is Google complying with

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Speaker 3: the decree. Of course, all of that comes after a

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Speaker 3: round of appeals, so there's much more to this, But

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Speaker 3: in terms of, you know, the overall feeling, I think it's,

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Speaker 3: you know, from a public point of view, a disappointment.

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Speaker 2: So the big headline was zoeas will Google be forced

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Speaker 2: to sell Chrome? So Google doesn't have to do that.

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Speaker 2: Why did Judge Meta decide not to make Google divest Chrome.

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Speaker 4: So this is a.

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Speaker 3: Point that pervades Judge Meta's decision rightly in a legal sense,

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Speaker 3: but I think not so correct from a policy point

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Speaker 3: of view and really where the law ought to be.

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Speaker 3: So this is in many ways a very conservative opinion.

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Speaker 3: It's the judge expressing what judges often express is that

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Speaker 3: they understand the limits of who they are, what the

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Speaker 3: institution can do, and what they want to do on

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Speaker 3: an ongoing basis. So they're conservative about this. And here

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Speaker 3: the government plaintiffs are asking them to do some pretty

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Speaker 3: strong restructuring of one of the superstar firms in the

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Speaker 3: United States. So you've got to be a little modest.

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Speaker 4: Now.

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Speaker 3: The judge backs up his modesty with a lot of

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Speaker 3: quotations from the Court of Appeals and recently from the

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Speaker 3: Supreme Court in a different anti trust case opinion written

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Speaker 3: by Justice Gorsuch, which councils, let's be careful a little bit.

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Speaker 3: So the ass that Chrome be divested. Structural relief is

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Speaker 3: something that the DC Circuit itself. Remember, Judge Meta is

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Speaker 3: a district court judge overseen by a Court of Appeals

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Speaker 3: from the DC Circuit, so he is required to follow

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Speaker 3: the law from that circuit. The law from that circuit

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Speaker 3: on remedies is actually pretty conservative and cautious, and that

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Speaker 3: stems from actually the Microsoft case, which is much the

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Speaker 3: template for the complaints that the government filed and for

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Speaker 3: the government's theories. So you know, they said, well, when

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Speaker 3: it comes to structural relief, restructuring reorganizing a company, you

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Speaker 3: really need some strong proof before you do that. You

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Speaker 3: need to watch out. And so he took those admonitions

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Speaker 3: to heart and just didn't find enough to overcome that

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Speaker 3: sort of a presumption that you know, you don't do

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Speaker 3: this unless you really have to do it for effective relief.

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Speaker 3: And this then goes to the second part. Maybe the

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Speaker 3: government didn't make an effective enough case for divesting Chrome

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Speaker 3: and maybe made it seem too easy, so stuck with

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Speaker 3: all of that, he backed away from it.

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Speaker 2: How much did AI play into Judgmenta's decision, So I.

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Speaker 3: Think his decision is all about AI, frankly, and I

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Speaker 3: think that he's betting and many in the industry by

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Speaker 3: just simply betting that AI is going to replace Search

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Speaker 3: as we know it with something else that's not search

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Speaker 3: as we know it, or maybe as you and I

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Speaker 3: know it, but just simply getting information and that Google Search,

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Speaker 3: that product, no matter what he does in this opinion,

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Speaker 3: is going to be eclipsed by some AI product. And

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Speaker 3: I think that he've views generates of AI as coming

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Speaker 3: to the rescue of competition.

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Speaker 2: Some say it's already eroding Google's dominance in search.

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Speaker 3: Yeah, the data seemed to show he he mentions this

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Speaker 3: in his opinion that searches on Safari have decreased. People

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Speaker 3: seem to be going directly to you know, Chat, GPT

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Speaker 3: or Perplexity or some of these other AI assistant things

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Speaker 3: and just getting information that way. This is the destructive

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Speaker 3: force of innovation, as the economist Joseph Schumpeter talked about

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Speaker 3: many years ago. So maybe he's right, and you know,

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Speaker 3: that may mean that sort of didn't matter what he

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Speaker 3: did so long as AI lives. But of course the

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Speaker 3: worry is that we'll just replicate the current structure the

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Speaker 3: tech platform, superstar firms will just control AI and we

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Speaker 3: won't have moved to new competition, but we'll have a

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Speaker 3: different product.

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Speaker 1: He's ordering Goo.

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Speaker 2: Google to share data with rivals to open up competition

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Speaker 2: in online search. Google has to share some of the

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Speaker 2: data with competitors, but not some of its most important data.

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Speaker 3: Would you say, well, here again, it's hard to say

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Speaker 3: exactly what our important data. You could say all of

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Speaker 3: the data are important, the more the more. But you know,

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Speaker 3: this particularly involves the search index, which is something that

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Speaker 3: Google has done really well, and the government in some

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Speaker 3: ways didn't ask for as much as it could, which

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Speaker 3: it would have been a license to the index itself.

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Speaker 3: What they wanted is some help with the data so

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Speaker 3: competitors could build an index. And even with that, the

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Speaker 3: judge cut down the kinds of data that will be

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Speaker 3: required to be disclosed, and to me, even more importantly,

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Speaker 3: the timing of the disclosure. So for some of these

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Speaker 3: data it's a one time snapshot, which strikes me as

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Speaker 3: you know, the judge calls that a kickstart for competition. Yeah,

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Speaker 3: like a kick in the rear. I don't know, you know,

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Speaker 3: a one time thing for some very important parts of

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Speaker 3: some basic information to help them put together a better

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Speaker 3: index of the web. There's an awful lot of information

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Speaker 3: out there and indexing it is critical for an effective

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Speaker 3: search engine. And you know, when it comes to sort

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Speaker 3: of this user side data to click and query. You know,

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Speaker 3: what we do when we get free search is create

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Speaker 3: data that's worth a heck of a lot of money

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Speaker 3: for which we don't get paid, we being you and

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Speaker 3: me and all the other users. But these data here. Again,

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Speaker 3: the judge cuts down the request, gives some amount of

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Speaker 3: the request, and then sort of puts on some limits

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Speaker 3: yet to be decided about how often this will be

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Speaker 3: disclosed more than once. Now it's not just a snapshot,

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Speaker 3: but the cap yet to be determined by this technical

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Speaker 3: committee that the decree is going to set up. So

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Speaker 3: I don't know, it's hard for me to say exactly,

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Speaker 3: you know, will this enable competitors to really get an

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Speaker 3: effective competing search engine or will it not quite be enough?

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Speaker 3: And in some ways this goes to what I've always

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Speaker 3: viewed as the underlying problem with these decrees is a

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Speaker 3: judge trying to say what competitors need to succeed, instead

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Speaker 3: of a judge saying, don't ask me, just come back,

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Speaker 3: you know, Google, Just come back and let me know

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Speaker 3: whether there's competition or not. And if there isn't, we're

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Speaker 3: going to have to do something more about it, you know,

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Speaker 3: for judges or even the Justice Department which apparently at

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Speaker 3: least is still made up of some lawyers. You know,

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Speaker 3: trying to design these remedies is tough, and you can

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Speaker 3: feel it with what the judge is written in this opinion.

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Speaker 3: It's hard and trying to figure out what the effect

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Speaker 3: is going to be. He said at the beginning. You know,

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Speaker 3: I don't have a crystal ball. Other judges have used

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Speaker 3: that worry as well when being asked to predict effects

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Speaker 3: in future markets.

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Speaker 2: Google has previously said it's going to appeal. Do you

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Speaker 2: think Judge Meta's decision is conservative enough to survive at

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Speaker 2: least at the DC appellate court stage.

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Speaker 3: So he did a lot to try to survive review

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Speaker 3: by the Court of Appeals. I mean, he relied quite

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Speaker 3: heavily on key decisions, particularly the Microsoft remedy decisions. And

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Speaker 3: he also, oh, by the way, bolstered one of the

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Speaker 3: potential weaknesses in the liability decision while he was at it.

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Speaker 3: So I think it's not perfectly bulletproof the aspect of

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Speaker 3: letting AI companies share in some of these data. If

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Speaker 3: I were Google, I would be hitting on that whether

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Speaker 3: that was you know, not warranted given as he started

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Speaker 3: out by saying, there was nothing at the trial about

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Speaker 3: AI and there are ways of casting what he did

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Speaker 3: as maybe not within the bounds of what the goal

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Speaker 3: was in the trial. So there's some potential issue there.

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Speaker 3: And you know, I mean it could be more conservative.

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Speaker 3: I guess he could have just given Google what Google wanted.

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Speaker 3: But it's a carefully drawn opinion, and you know, time

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Speaker 3: after time he sort of knocks the government plaintiffs back

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Speaker 3: a bit by saying, you know, you've overreached, you're asking

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Speaker 3: for too much. You know we need to be modest, etc. Etc.

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Speaker 2: And later this month Google is schedule to go on

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Speaker 2: trial to determine remedies in another case where a judge

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Speaker 2: has found the company holds illegal monopolies in online advertising tech.

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Speaker 2: So more to come, Thanks so much, Harry. That's Professor

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Speaker 2: Harry First of NYU Law School. Coming up next. Trump

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Speaker 2: can't use a wartime act to deport alleged gang members.

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Speaker 2: I'm June Grosso. When you're listening to Bloomberg.

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Speaker 1: This is Bloomberg Law with June grosseo from Bloomberg Radio.

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Speaker 5: Venezuela has been a very bad actor. They've been, as

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Speaker 5: you know, they've been sending millions of people into our country.

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Speaker 5: Many of them Trend de Aragua, some of the worst gang,

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Speaker 5: some of the worst people anywhere in the world.

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Speaker 2: President Trump used an eighteenth century wartime law to try

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Speaker 2: to quickly deport alleged members of a violent Venezuelan gang

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Speaker 2: in March, arguing that the Trend de Aragua gang had

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Speaker 2: been sent to the US by Venezuela as president to

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Speaker 2: destabilize the country. For the first time, a federal appeals

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Speaker 2: court weighed in this week, blocking the administration from using

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Speaker 2: the Alien Enemies Act of seventeen ninety eight to deport

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Speaker 2: the men. The Fifth Circuit found that quote a country's

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Speaker 2: encouraging its residents and citizens to enter this country illegally

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Speaker 2: is not the modern day equivalent of sending an armed

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Speaker 2: organized force to occupy, to disrupt, or to otherwise harm.

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Speaker 2: The United States borders are. Tom Holman had admitted that

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Speaker 2: the wartime law was being used for swift deportations that

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Speaker 2: avoided due process.

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Speaker 5: I'm not arguing right here that nobody should get due process.

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Speaker 5: I'm just saying there's a different process on the.

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Speaker 2: Alien Enemies Act unless of a process, and you see

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Speaker 2: to Title eight.

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Speaker 1: DC.

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Speaker 2: Appellate Judge Patricia Millett criticized the government for not giving

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Speaker 2: the Venezuelans any opportunity to challenge their removals.

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Speaker 6: There were planeloads of people, there were no procedures in

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Speaker 6: place to notify people. Nazi's got better treatment under the

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Speaker 6: Alien Enemy Act and has happened here.

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Speaker 2: The two to one decision from the New Orleans Court

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Speaker 2: will most likely end up back at the Supreme Court.

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Speaker 2: My guest is immigration law expert Leon Fresco, a partner

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Speaker 2: at Hollanda Knight le On. This case has been going

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Speaker 2: on almost sick so it has been up to the

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Speaker 2: Supreme Court twice already catch us up.

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Speaker 4: This is a case involving President Trump's proclamation in March

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Speaker 4: of twenty twenty five that the Venezuelan gang Trend de

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Speaker 4: Arragua was a dangerous invading force into the United States

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Speaker 4: such that its members should be deported under the Alien

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Speaker 4: Enemies Act, which permits deportation without due process. Essentially, the

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Speaker 4: government can just apprehend anyone it says is in the

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Speaker 4: Alien Enemies Act group, which in this case is Trend

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Speaker 4: the Arragua, and deport them. And people are being deported

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Speaker 4: to El Savador, to the Sea Coats Prison. Now There

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Speaker 4: was two iterations of this case. The first one started

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Speaker 4: in DC where just Bozberg had said that the government

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Speaker 4: couldn't do this, and there was the debate about the

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Speaker 4: flights and the debate about whether there should be contempt.

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Speaker 4: But nevertheless, the Supreme Court comes in and says, no, no, no,

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Speaker 4: all of that was wrong. None of that should have

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Speaker 4: been filed in DC. These kinds of cases should be

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Speaker 4: filed as abias cases. Now. Mind you, there was a

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Speaker 4: decision a couple of years ago where just as Alito

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Speaker 4: had said no more habeas for immigration. But nevertheless, I

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Speaker 4: think that these facts on the ground concerned the Supreme

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Speaker 4: Court so much they said, well, you've got to be

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Speaker 4: able to file something, so fine, we're back to habeas again.

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Speaker 4: So you've got to file them as habeas cases. And

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Speaker 4: the habeas cases have to be in the locations where

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Speaker 4: people were being detained. Well where were people being detained.

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Speaker 4: They were being detained all over Texas. So there were

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Speaker 4: district court decisions all over Texas. But now finally the

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Speaker 4: main case reaches the Fifth Circuit and the Fifth Circuit

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Speaker 4: grants the preliminary injunction preventing the removal of the petitioners

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Speaker 4: who were the Venezuelan nationals that the Trump administration wanted

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Speaker 4: to deport under the Alien Enemies Act.

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Speaker 2: Federal judges in Colorado, New York, and Texas have ruled

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Speaker 2: that Trump improperly invoked that act. How did the Fifth

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Speaker 2: Circuit come to that same conclusion?

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Speaker 4: The Fifth Circuit, in a two to one decision, said

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Speaker 4: that at the end of the day, the Alien Enemies

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Speaker 4: Act doesn't justify their removals because there isn't a declared

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Speaker 4: war and that the actions of this trend that Aragua

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Speaker 4: gang do not constitute an invasion or a predatory incursion

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Speaker 4: by a foreign nation or a government, which requires, in

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Speaker 4: their view, military like actions directed by a foreign power.

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Speaker 4: They're saying, this is more of sort of a gang

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Speaker 4: or criminal type of thing, but it isn't actually a

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Speaker 4: military incursion. They don't even get into anything about whether

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Speaker 4: these individuals specifically are members of trend the Aragua or

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Speaker 4: anything like that. They just say that this invocation of

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Speaker 4: the Alien Enemies Act is unlawful and so it cannot

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Speaker 4: be used to create deportation without due process. Now, they

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Speaker 4: did say, if the Trump administration wants to deport these people,

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Speaker 4: they can deport them under any other grounds that's permissible.

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Speaker 2: The borders are Tom Holman and others in the administration

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Speaker 2: and kept saying that the Venezuelans were terrorists. Was that

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Speaker 2: part of their legal argument?

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Speaker 4: Well, first of all, you're correct. There's a very concerted effort,

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Speaker 4: even in this bombing that occurred this week with the

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Speaker 4: Venezuelan drug lords on the boat, that everybody calling them

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Speaker 4: in the administration terrorists, to try to link that with

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Speaker 4: some sort of military like action directed by a foreign power,

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Speaker 4: to get it as close as possible to the Alien

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Speaker 4: Enemies Act. But what this court is saying is that's

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Speaker 4: not really what these people are. These people are not

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Speaker 4: being instructed by the Venezuelan government to come to the

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Speaker 4: United States and commit war acts against the United States.

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Speaker 4: These are just individual criminals trying to profit off of

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Speaker 4: drug and gang activities. They're not soldiers or quasi soldiers

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Speaker 4: acting on behalf of the Venezuelan government.

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Speaker 2: This is a Fifth Circuit decision, the most conservative appellate

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Speaker 2: court in the country, George W. Bush appointing Biden appointee

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Speaker 2: in the majority and in descent a Trump appointee. What

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Speaker 2: did the dissent argue.

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Speaker 4: Well, the dissenting judge who used to be the Solicitor

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Speaker 4: General of the State of Texas, a very well known,

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Speaker 4: strong conservative judge, Judge Oldham. He basically argued that the

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Speaker 4: Alien Enemies Act is something that is so broad in

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Speaker 4: terms of the congressional authority that the courts really don't

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Speaker 4: have a role in reviewing a presidential determination under the

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Speaker 4: Alien Enemies Act. Basically, what he was saying is that

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Speaker 4: the courts should not second guess when the president says

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Speaker 4: there's a war, because this can lead to very dangerous circumstances,

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Speaker 4: and that you know, you have the president who has

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Speaker 4: all of this sort of expertise in the sense that

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Speaker 4: they have the Defense Department and the CIA and the

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Speaker 4: Department of Homeland Security and the NSA to do all

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Speaker 4: of this work and consultation, and they make a determination

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Speaker 4: that there is a dangerous environment akin to the environment

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Speaker 4: that's required under the Alien Enemies Act. For the courts

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Speaker 4: who are just judges sitting there in you know, Louisiana

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Speaker 4: or Texas or wherever they're sitting that don't have all

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Speaker 4: of this access to be able to come in and say, well,

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Speaker 4: we don't actually think this rises to the kind of

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Speaker 4: war level threat that is required under the Alien Enemies Act.

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Speaker 4: Keeps saying that is incredibly dangerous because what is the

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Speaker 4: limiting principle there? Now the judges can decide what is

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Speaker 4: a war, what is in a war, and that's not

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Speaker 4: what Congress had intended here. The problem with that is,

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Speaker 4: at the end of the day, if you really have

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Speaker 4: no limiting principle on the Alien Enemies Act at all,

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Speaker 4: including whether it can be invoked and who it can

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Speaker 4: be invoked again, then at that point, I mean, there

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Speaker 4: really would be no way for either you or I

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Speaker 4: or any of your listeners to go into court if

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Speaker 4: we were mistaken Lee apprehended by Ice. Ice could say,

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Speaker 4: you know, Leon or June, you're members of this trend,

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Speaker 4: that Ragua gang, and we're sending you te El Salvador.

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Speaker 4: And you could say, yeah, but I've never visited Venezuela,

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Speaker 4: and I don't even know any Venezuelans and I'm not

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Speaker 4: a member of a gang. I toast the bloomberg. So

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Speaker 4: and it won't matter because there's no court to bring

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Speaker 4: it to. And so I don't think anyone will be

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Speaker 4: fully comfortable with that kind of decision. And I don't

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Speaker 4: think the Supreme Court was comfortable with that, which is

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Speaker 4: why they didn't issue that decision. And moving forward, I

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Speaker 4: don't think they're gonna get there in terms of to

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Speaker 4: just not have any due process determination as to these decisions.

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Speaker 2: Yeah, Colorado judge called that argument nonsense.

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Speaker 4: It's a difficult argument to make. I mean, look, it

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Speaker 4: all depends where you're approaching this from. If you're approaching

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Speaker 4: this from a belief system that everybody in the world

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Speaker 4: acts in good faith, then you could conceivably understand you'd say, well,

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Speaker 4: why would a president ever want to do something like

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Speaker 4: this put someone in a detention if it wasn't absolutely necessary.

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Speaker 4: But if you were to approach it from the perspective

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Speaker 4: that sometimes people don't act in good faith or sometimes

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Speaker 4: people make a mistake, then maybe you do need some

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Speaker 4: due process in that system, because otherwise, what is checking

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Speaker 4: those kinds of abuses from occurring.

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Speaker 2: The ruling could be appealed to the full Fifth Circuit

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Speaker 2: or could be appealed directly to the Supreme Court. Is

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Speaker 2: there any reason to bother going for and on bank

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Speaker 2: hearing at the Fifth Circuit when the case is just

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Speaker 2: going to end up at the Supreme Court.

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Speaker 4: Anyway, you know, right now, the government doesn't have the

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Speaker 4: strongest hand, and maybe you know, the government wins in

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Speaker 4: the Fifth Circuit fully, and so then it would be

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Speaker 4: the onus then on the foreign nationals to actually then

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Speaker 4: appeal to the Supreme Court. So from that perspective, they

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Speaker 4: may want to strengthen their hand. But honestly, if the

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Speaker 4: trumpet is trying to really say, hey, these are the

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Speaker 4: most dangerous people in the world and we need to

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Speaker 4: get them out as soon as possible, asking for Unbank

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Speaker 4: review of the Fifth Circuit doesn't seem to make a

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Speaker 4: lot of sense, because why are you delaying getting to

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Speaker 4: the ultimate outcome here. So I don't think from a

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Speaker 4: political perspective it makes a lot of sense to go

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Speaker 4: for Unbank review. It may make sense strengthening the argument

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Speaker 4: in a typical case because you might win in the

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Speaker 4: en Bank. But at the end of the day, if

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Speaker 4: what you're trying to say is, look, we need to

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Speaker 4: final answer, we need to get these theorists out of

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Speaker 4: the country as soon as possible, I think you would

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Speaker 4: want the Supreme Court to look at this as soon

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Speaker 4: as possible.

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Speaker 2: So the Supreme Court never answered the question of whether

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Speaker 2: Trump's use of the Alien Enemies Act is valid. Do

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Speaker 2: you have any inkling from the way they ruled twice before.

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Speaker 4: Well, I think that at the end of the day,

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Speaker 4: there won't be five justices that say that you can't

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Speaker 4: review this general concept of whether it was proper to

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Speaker 4: have an Alien Enemies Act determination. Now, they may give

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Speaker 4: some very strong difference to the administration. In fact, I

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Speaker 4: would be shocked if they didn't give strong difference to

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Speaker 4: the administration. But they may say, look, even with very

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Speaker 4: strong difference, this isn't the kind of case that gets it.

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Speaker 4: I mean that issue is going to be closed. I

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Speaker 4: don't think there will be any justice that says that

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Speaker 4: an individual person can't come forward and make a claim

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Speaker 4: that look, you may claim there's a problem, but I'm

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Speaker 4: not a member of the problem group. I think those

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Speaker 4: people will nine nothing be able to get due process,

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Speaker 4: in habeas or in some other way to be able

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Speaker 4: to make that argument. That's the second thing. And then

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Speaker 4: the third thing. The court said that seven days is

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Speaker 4: enough to make these claims, so that the government, if

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Speaker 4: they designate you as part of the problem group, you

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Speaker 4: have seven days to file a lawsuit or you can

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Speaker 4: be deported and the dissenting judged there, Judge Ramirez said, no,

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Speaker 4: you need twenty one days at least. And you know

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Speaker 4: this is everybody just making this up out of old clause.

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Speaker 4: But the question is, you know, if you don't speak English,

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Speaker 4: you don't have access to a lawyer, what is a

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Speaker 4: reasonable amount of time to give you to file a

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Speaker 4: federal Habeast complaint in the court. That's not the easiest

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Speaker 4: thing for someone to do. Imagine you know, you or

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Speaker 4: I going to China right now and trying to file

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Speaker 4: a court document there when we don't speak Chinese, we

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Speaker 4: don't know anything about the law, We don't know anything.

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Speaker 4: You know, what would be a reasonable amount of time

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Speaker 4: to give a person in that situation? And so that's

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Speaker 4: the question here, and you know the Supreme Court's going

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Speaker 4: to have to grapple with that too.

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Speaker 2: We'll see if the administration appeals this directly to the

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Speaker 2: Supreme Court. Thanks so much, Leon. That's Leon Fresco of

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Speaker 2: Hollanden Night. Coming up next, a judge rules the National

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Speaker 2: Guard deployment to La broke the law. I'm June Grosso

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Speaker 2: and you're listening to Bloomberg.

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Speaker 5: If I didn't send the National Guard into Los Angeles.

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Speaker 1: You wouldn't.

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Speaker 5: I would be making an announcement to that be talking

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Speaker 5: about Huntsville, and I'd simultaneously be saying, by the way,

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Speaker 5: the Olympics is not coming to Los Angeles.

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Speaker 2: But a federal judge ruled on Tuesday that President Trump's

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Speaker 2: deployment of National Guard troops and US Marines to carry

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Speaker 2: out law enforcement activities in Los Angeles this summer was illegal.

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Speaker 2: In a scathing decision, Judge Charles Bryer noted that Trump

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Speaker 2: has made threats to deploy the Guard and troops in

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Speaker 2: other cities, which would create a national police force with

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Speaker 2: the President as its chief.

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Speaker 5: I could do that with Chicago, We could do that

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Speaker 5: with New York. We could do it with Los Angeles.

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Speaker 5: So we're making a determination, now do we go to Chicago.

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Speaker 7: I find this extraordinarily strange, as Chicago does not want

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Speaker 7: troops on our streets.

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Speaker 2: Illinois Governor JB. Pritzker has said he'll challenge in court

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Speaker 2: any deployment of troops to Chicago, where a violent crime

436
00:25:57,359 --> 00:26:00,960
Speaker 2: is down twenty three percent over last year, and Mayor

437
00:26:01,040 --> 00:26:05,400
Speaker 2: Brandon Johnson has issued an executive order outlining the city's

438
00:26:05,440 --> 00:26:08,360
Speaker 2: plans to resist any deployment of troops.

439
00:26:08,720 --> 00:26:11,439
Speaker 7: The sweeping executive order directs our Department of Law to

440
00:26:11,440 --> 00:26:15,680
Speaker 7: pursue any and every legal mechanism to hold this administration

441
00:26:15,800 --> 00:26:20,640
Speaker 7: accountable for violating the rights of chicagoan's. This order affirms

442
00:26:20,640 --> 00:26:24,600
Speaker 7: that the Chicago Police Department will not collaborate with military

443
00:26:24,680 --> 00:26:28,200
Speaker 7: personnel on police patrols or civil immigration enforcement.

444
00:26:29,520 --> 00:26:32,199
Speaker 5: Now we're going to do it anyway. We have the

445
00:26:32,280 --> 00:26:34,760
Speaker 5: right to do it because I have an obligation to

446
00:26:34,760 --> 00:26:35,920
Speaker 5: protect this country.

447
00:26:36,040 --> 00:26:40,000
Speaker 2: It remains unclear what actions Trump may take in Chicago

448
00:26:40,480 --> 00:26:44,639
Speaker 2: and when. My guest is constitutional law expert Harold Krant,

449
00:26:44,960 --> 00:26:48,720
Speaker 2: a professor at the Chicago Kent College of Law, hal

450
00:26:48,920 --> 00:26:54,480
Speaker 2: is Judge Briar's decision a complete refutation of Trump's sending

451
00:26:54,560 --> 00:26:56,359
Speaker 2: troops into Los Angeles.

452
00:26:56,680 --> 00:27:00,639
Speaker 8: It's a partial reputation. And indeed, just Buyer's order allows

453
00:27:00,760 --> 00:27:05,040
Speaker 8: the military to remain. What he has done is delineate

454
00:27:05,119 --> 00:27:08,800
Speaker 8: what they can and cannot do. And so this is

455
00:27:08,960 --> 00:27:11,560
Speaker 8: an effort by the judge. This steer clear of the

456
00:27:11,640 --> 00:27:15,520
Speaker 8: earlier Ninth Circuit decision which lifted Day on his earlier

457
00:27:15,680 --> 00:27:18,639
Speaker 8: preliminary injunction. So the court here is trying to be

458
00:27:18,880 --> 00:27:22,360
Speaker 8: careful in trying to say what the National Guard can

459
00:27:22,400 --> 00:27:23,439
Speaker 8: do and can't do.

460
00:27:24,280 --> 00:27:27,640
Speaker 2: Judge Briar delayed his ruling until next week to give

461
00:27:27,640 --> 00:27:31,640
Speaker 2: the administration ten days to appeal, but it didn't take

462
00:27:31,680 --> 00:27:35,560
Speaker 2: them that long. They appealed the next day on Wednesday,

463
00:27:35,800 --> 00:27:39,119
Speaker 2: and the Ninth Circuit put this second order on hold

464
00:27:39,400 --> 00:27:42,879
Speaker 2: on Thursday to give it more time to rule on

465
00:27:43,080 --> 00:27:47,560
Speaker 2: the administration's request for an indefinite pause. So a fast

466
00:27:47,600 --> 00:27:51,760
Speaker 2: moving case now. Judge Briar did rule that the deployment

467
00:27:52,040 --> 00:27:56,760
Speaker 2: was a violation of the Posse Commatantis Act that bars

468
00:27:56,800 --> 00:28:01,159
Speaker 2: the military from engaging in domes law enforcement.

469
00:28:02,040 --> 00:28:04,560
Speaker 8: He did, but he said that there were some duties

470
00:28:04,600 --> 00:28:10,320
Speaker 8: that the federalized National Guard could in fact undertake consistent

471
00:28:10,359 --> 00:28:12,680
Speaker 8: with the pass Comatatas Act. But he made a fatual

472
00:28:12,760 --> 00:28:15,560
Speaker 8: finding that the troops had done more than that they

473
00:28:15,560 --> 00:28:19,840
Speaker 8: had engaged in general law enforcement activity, which she said

474
00:28:20,080 --> 00:28:24,359
Speaker 8: was proscribed under the camatatas aac and tradition. So he

475
00:28:24,440 --> 00:28:27,600
Speaker 8: made a more narrow nuance finding when they had previously.

476
00:28:27,840 --> 00:28:31,159
Speaker 8: He didn't even question the ability of the president to

477
00:28:31,200 --> 00:28:34,639
Speaker 8: federalize the National Guard against the governor's wishes, but he

478
00:28:34,680 --> 00:28:37,360
Speaker 8: said even if the president can do that the National

479
00:28:37,359 --> 00:28:43,440
Speaker 8: Guard can't engage in general law enforcement activities, including covering

480
00:28:43,840 --> 00:28:48,280
Speaker 8: ice agents, including dispersing crowds and so forth.

481
00:28:49,000 --> 00:28:52,520
Speaker 2: And just to clarify, Judge Bryer had previously ruled that

482
00:28:52,640 --> 00:28:55,959
Speaker 2: Trump had to return control of the National Guard to

483
00:28:56,160 --> 00:28:59,720
Speaker 2: the state, but that ruling was put on hold by

484
00:28:59,760 --> 00:29:03,880
Speaker 2: the Ninth Circuit, And this new ruling applies specifically to

485
00:29:03,960 --> 00:29:05,440
Speaker 2: the Possi Cooma Tatis Act.

486
00:29:05,720 --> 00:29:08,600
Speaker 8: So he is trying to create a decision in my

487
00:29:08,720 --> 00:29:13,400
Speaker 8: mind here that is consistent with the broad principles he articulated,

488
00:29:13,440 --> 00:29:17,440
Speaker 8: previously limiting the president's abilities to nationalize the Federal Guard,

489
00:29:17,760 --> 00:29:20,880
Speaker 8: but then, realizing that the Ninth Circuit had overruled him

490
00:29:20,920 --> 00:29:25,000
Speaker 8: in part previously, then decided to add more granually that

491
00:29:25,200 --> 00:29:28,920
Speaker 8: even if the President could nationalize the National Guard, that

492
00:29:29,000 --> 00:29:34,280
Speaker 8: they could not engage in sort of typical law enforcement authorities.

493
00:29:34,360 --> 00:29:38,400
Speaker 8: But I think the consensus has been that the president

494
00:29:38,480 --> 00:29:43,600
Speaker 8: cannot nationalize the National Guard. You know, unless all typical

495
00:29:43,680 --> 00:29:47,880
Speaker 8: law enforcement has collapsed, you can't enforce court orders or

496
00:29:47,920 --> 00:29:51,040
Speaker 8: there's an insurrection, and obviously those two things are not

497
00:29:51,120 --> 00:29:53,520
Speaker 8: in place in Los Angeles. In my mind, though, this

498
00:29:53,560 --> 00:29:57,960
Speaker 8: is a sideshow because President Trump continually says that he

499
00:29:58,120 --> 00:30:01,560
Speaker 8: can federalize the National Guard and send them wherever he wants,

500
00:30:01,600 --> 00:30:04,719
Speaker 8: to include Chicago, just for ordinary criminal law enforcements. So

501
00:30:04,800 --> 00:30:07,920
Speaker 8: it's clear that there's a clash between the Court's view

502
00:30:08,240 --> 00:30:12,120
Speaker 8: of the limits of the president's authority under the Pasi

503
00:30:12,120 --> 00:30:15,840
Speaker 8: Coomatatis Act and what the President thinks he can do

504
00:30:15,960 --> 00:30:18,880
Speaker 8: and has continually espoused he can do in terms of

505
00:30:18,920 --> 00:30:21,440
Speaker 8: federalizing the troops at a moment's notice.

506
00:30:21,800 --> 00:30:25,719
Speaker 2: And the judge said he was applying his injunction statewide

507
00:30:25,760 --> 00:30:30,520
Speaker 2: instead of just in Los Angeles, because Trump had demonstrated

508
00:30:30,960 --> 00:30:35,360
Speaker 2: a desire to violate the Passikama Tatis Act in other cities.

509
00:30:35,880 --> 00:30:39,520
Speaker 2: And Judge Briar cited this statement by Trump in an

510
00:30:39,600 --> 00:30:43,560
Speaker 2: August twenty seventh cabinet meeting where he discussed sending the

511
00:30:43,640 --> 00:30:46,520
Speaker 2: National Guard into Chicago.

512
00:30:46,720 --> 00:30:48,320
Speaker 8: Have the right to do anything I want to do.

513
00:30:48,400 --> 00:30:50,320
Speaker 5: I'm the President of the United States. If I think

514
00:30:50,320 --> 00:30:52,440
Speaker 5: our country is in danger, and it is in danger

515
00:30:52,480 --> 00:30:54,000
Speaker 5: in these cities, I can do it.

516
00:30:54,360 --> 00:30:57,480
Speaker 2: Do you think Judge Briar went too far in his opinion.

517
00:30:58,040 --> 00:31:01,840
Speaker 8: My only concern about the the Court's opinion is that

518
00:31:01,920 --> 00:31:05,520
Speaker 8: the Court seemed to be dismissing the president's sort of

519
00:31:05,520 --> 00:31:08,800
Speaker 8: inherent authority. As a statutory matter, I think the Court

520
00:31:08,880 --> 00:31:11,800
Speaker 8: is on strong ground, both historically and in terms of

521
00:31:11,880 --> 00:31:15,360
Speaker 8: textually of understanding the limits of the pass comatatous Act.

522
00:31:15,520 --> 00:31:18,200
Speaker 8: I think the Court was a little bit quick in

523
00:31:18,320 --> 00:31:22,560
Speaker 8: terms of dismissing the president sort of inherent authority under

524
00:31:22,840 --> 00:31:26,640
Speaker 8: the Commander and Chief clause of the Constitution. Clearly, presidents

525
00:31:26,640 --> 00:31:28,880
Speaker 8: have to make tough costs, tough cause in terms of

526
00:31:29,040 --> 00:31:32,600
Speaker 8: lias on the streets, tough cause in terms of potential

527
00:31:32,640 --> 00:31:36,400
Speaker 8: invasions and so forth. And so if the president said

528
00:31:36,680 --> 00:31:40,360
Speaker 8: we need to protect federal buildings, we need to protect

529
00:31:40,480 --> 00:31:44,640
Speaker 8: federal instrumentalities, might think that Article to itself might give

530
00:31:44,680 --> 00:31:46,920
Speaker 8: the president arguably does give it the president that kind

531
00:31:46,960 --> 00:31:50,800
Speaker 8: of authority to order troops to protect those even if

532
00:31:50,880 --> 00:31:52,920
Speaker 8: states say they don't need it. So that's not at

533
00:31:52,960 --> 00:31:57,320
Speaker 8: stake here, and President Trump's news conference clearly illustrates that

534
00:31:57,320 --> 00:32:00,360
Speaker 8: that's not at stake here. But I think that might

535
00:32:00,440 --> 00:32:04,120
Speaker 8: be a weakness in the Court's opinion, because I do

536
00:32:04,200 --> 00:32:06,280
Speaker 8: think that the chief executive has to make those tough

537
00:32:06,280 --> 00:32:09,880
Speaker 8: calls if there are threats in the president's mind to

538
00:32:10,080 --> 00:32:12,360
Speaker 8: federal instrumentalities within the states.

539
00:32:12,680 --> 00:32:18,640
Speaker 2: With regard to Chicago, Trump's only stated justification for sending

540
00:32:18,680 --> 00:32:23,320
Speaker 2: troops in is to combat what he says is rampant crime.

541
00:32:23,760 --> 00:32:27,040
Speaker 2: The same goes for New York and Baltimore, despite the

542
00:32:27,160 --> 00:32:31,080
Speaker 2: data showing that crime has dropped in those cities, and

543
00:32:31,200 --> 00:32:34,000
Speaker 2: Chicago isn't even on the list of the ten most

544
00:32:34,080 --> 00:32:35,960
Speaker 2: dangerous cities in the country.

545
00:32:36,360 --> 00:32:39,840
Speaker 8: Well, absolutely no justification for what the President said he's

546
00:32:39,880 --> 00:32:43,800
Speaker 8: going to do in Chicago, which is even more indefensible

547
00:32:43,880 --> 00:32:48,040
Speaker 8: than what he did in California. And I would expect

548
00:32:48,120 --> 00:32:51,680
Speaker 8: that the mayor of Chicago, Mayor Johnson, and the governor of Illinois,

549
00:32:51,880 --> 00:32:55,160
Speaker 8: Governor Pritsker, will immediately go to court not only cite

550
00:32:55,160 --> 00:32:58,320
Speaker 8: the most recent Judge Briar decision, but cite just more

551
00:32:58,360 --> 00:33:02,280
Speaker 8: convincingly that the President has acknowledged the purpose for why

552
00:33:02,320 --> 00:33:06,160
Speaker 8: he's sending in troops into Chicago, and that's absolutely prohibited

553
00:33:06,200 --> 00:33:09,680
Speaker 8: by the pussy com pat effect under any construction of

554
00:33:09,720 --> 00:33:11,080
Speaker 8: the terms of the statute.

555
00:33:11,320 --> 00:33:17,480
Speaker 2: So Judge Briar's decision has no effect in Illinois, correct,

556
00:33:17,640 --> 00:33:21,880
Speaker 2: But is the reasoning strong enough to apply to Illinois?

557
00:33:22,040 --> 00:33:25,920
Speaker 8: I think that reasoning will cover the same situation, and again,

558
00:33:26,160 --> 00:33:28,880
Speaker 8: Chicago is an easier case. And I think that to

559
00:33:28,960 --> 00:33:32,560
Speaker 8: the extent that the President would say that ICE agents

560
00:33:32,640 --> 00:33:36,160
Speaker 8: are under attack and that he is commander Chief can't

561
00:33:36,280 --> 00:33:40,000
Speaker 8: ensure an orderly function of immigration processes in this country

562
00:33:40,040 --> 00:33:43,520
Speaker 8: without calling in supportive troops. That would be the strongest

563
00:33:43,680 --> 00:33:47,200
Speaker 8: sort of justification that I can understand in the California

564
00:33:47,240 --> 00:33:50,480
Speaker 8: context for the use of either the federalized National Guard

565
00:33:50,640 --> 00:33:53,400
Speaker 8: or for the Marines. But he clearly in Chicago's built

566
00:33:53,520 --> 00:33:55,880
Speaker 8: is that I don't even need that justification. I can

567
00:33:55,920 --> 00:33:58,520
Speaker 8: send troops wherever I want, whenever I want, because I'm

568
00:33:58,560 --> 00:34:01,560
Speaker 8: the President of United States, And that downright is frightening.

569
00:34:01,880 --> 00:34:04,760
Speaker 8: Not only is it clearly outlawed by the Pussy Comatatas

570
00:34:04,800 --> 00:34:07,280
Speaker 8: Act and by the history that led to the act,

571
00:34:07,440 --> 00:34:09,520
Speaker 8: but it's a huge step towards autocracy.

572
00:34:09,880 --> 00:34:13,520
Speaker 2: What if instead of sending in the National Guard or

573
00:34:13,600 --> 00:34:17,759
Speaker 2: the Marines, Trump just sent in lots and lots of

574
00:34:18,160 --> 00:34:23,560
Speaker 2: federal agents, the FBI, the DEA ICE. Would there be

575
00:34:23,640 --> 00:34:24,719
Speaker 2: any problem with that?

576
00:34:24,840 --> 00:34:28,719
Speaker 8: Legally there may be pockets of restrictions, but if ordinarily

577
00:34:28,840 --> 00:34:32,040
Speaker 8: that would be within his power, and certainly he can

578
00:34:32,239 --> 00:34:35,759
Speaker 8: shift FBI agents over to Ice and his temporary details.

579
00:34:36,000 --> 00:34:38,240
Speaker 8: He has the power to do that under prior statute.

580
00:34:38,400 --> 00:34:41,759
Speaker 8: So in that respect he could accomplish at least some

581
00:34:41,800 --> 00:34:44,800
Speaker 8: of his goals. But again, he could not engage those

582
00:34:45,120 --> 00:34:48,440
Speaker 8: FBI agents in terms of taking over for general law

583
00:34:48,480 --> 00:34:52,000
Speaker 8: enforcement for Chicago because the FBI is not authorized. The

584
00:34:52,320 --> 00:34:57,359
Speaker 8: agents aren't authorized to deal with conventional robbery, theft, etc.

585
00:34:57,719 --> 00:34:59,760
Speaker 8: That are state crimes, not federal crimes.

586
00:35:00,080 --> 00:35:04,200
Speaker 2: Judge Bryer also said that if the President wants to

587
00:35:04,440 --> 00:35:08,840
Speaker 2: avoid the restrictions of the Posse comma Tatis Act, he

588
00:35:08,920 --> 00:35:14,240
Speaker 2: could invoke a valid exception like the Insurrection Act quote

589
00:35:14,400 --> 00:35:17,719
Speaker 2: along with its requisite showing that state and local law

590
00:35:17,840 --> 00:35:23,480
Speaker 2: enforcement are unable or unwilling to act. Obviously, Trump did

591
00:35:23,520 --> 00:35:27,200
Speaker 2: not invoke the Insurrection Act when the capital was attacked

592
00:35:27,239 --> 00:35:30,520
Speaker 2: in twenty twenty one, but theoretically could he do it

593
00:35:30,520 --> 00:35:31,760
Speaker 2: in a city like Chicago.

594
00:35:32,160 --> 00:35:35,640
Speaker 8: Well, when we had riots in the wake of the

595
00:35:35,880 --> 00:35:39,080
Speaker 8: sassination of Martin Luther King, when we had the unrest

596
00:35:39,160 --> 00:35:43,240
Speaker 8: because of the George Floyd murder, arguably local law enforcement

597
00:35:43,320 --> 00:35:46,359
Speaker 8: could not take the helm and preserve law and order,

598
00:35:46,600 --> 00:35:50,439
Speaker 8: and that is an exception of the putscun Titus Act,

599
00:35:50,880 --> 00:35:54,279
Speaker 8: and indeed, the courts would be in difficult position if

600
00:35:54,320 --> 00:35:57,040
Speaker 8: the president made a careful finding that that is why

601
00:35:57,080 --> 00:36:00,719
Speaker 8: he is sending troops, that there is no local law

602
00:36:00,800 --> 00:36:04,200
Speaker 8: enforcement that can take care of law enforcement activities. I

603
00:36:04,200 --> 00:36:06,239
Speaker 8: don't even know what the theory would be in Chicago,

604
00:36:06,320 --> 00:36:10,160
Speaker 8: but if he says that there is a insurrection because

605
00:36:10,800 --> 00:36:15,080
Speaker 8: undocumented workers are rising up in arms against the authority,

606
00:36:15,560 --> 00:36:18,520
Speaker 8: or he would say that some other kind of indirection

607
00:36:18,640 --> 00:36:22,680
Speaker 8: is taking place, then he could justifiably use federal troops.

608
00:36:22,680 --> 00:36:26,000
Speaker 8: He has not made that claim, and indeed, given the

609
00:36:26,000 --> 00:36:28,680
Speaker 8: fact that the clim has gone down into these like Washington,

610
00:36:28,719 --> 00:36:33,400
Speaker 8: DC in Chicago, it's simply far fetched. So, yes, presidents

611
00:36:33,440 --> 00:36:36,640
Speaker 8: have sent in troops, and President Trump could in the future,

612
00:36:36,960 --> 00:36:41,360
Speaker 8: respecting Congress, but not in these situations. Obviously, the Constitution

613
00:36:41,600 --> 00:36:45,839
Speaker 8: ascribes a principal role to Congress in deciding when to

614
00:36:46,040 --> 00:36:50,799
Speaker 8: introduce the military into civilian situations. Congress has done so

615
00:36:50,880 --> 00:36:53,719
Speaker 8: in the Potsakakamatitis Act as well as the limitations in

616
00:36:53,760 --> 00:36:57,080
Speaker 8: the Insurrection Act. And that's the role that the Constitution

617
00:36:57,719 --> 00:37:01,759
Speaker 8: gives to Congress. And Trump is just writing buckshot over

618
00:37:01,840 --> 00:37:03,520
Speaker 8: the constitutional structure.

619
00:37:03,719 --> 00:37:07,880
Speaker 2: And with all the legal questions. We haven't discussed the cost.

620
00:37:07,920 --> 00:37:11,880
Speaker 2: California Governor Gavin Newsom says that it costs the taxpayers

621
00:37:12,120 --> 00:37:15,840
Speaker 2: one hundred and eighteen million dollars when Trump sent the

622
00:37:15,960 --> 00:37:20,319
Speaker 2: National Guard to Los Angeles. Something else to consider, Thanks

623
00:37:20,360 --> 00:37:23,560
Speaker 2: so much. How that's Professor Harold Krent of the Chicago

624
00:37:23,719 --> 00:37:26,600
Speaker 2: Kent College of Law. And that's it for this edition

625
00:37:26,640 --> 00:37:29,279
Speaker 2: of The Bloomberg Law Show. Remember you can always get

626
00:37:29,280 --> 00:37:32,440
Speaker 2: the latest legal news on our Bloomberg Law Podcast. You

627
00:37:32,480 --> 00:37:36,560
Speaker 2: can find them on Apple Podcasts, Spotify, and at www

628
00:37:36,719 --> 00:37:40,960
Speaker 2: dot Bloomberg dot com, slash podcast Slash Law, and remember

629
00:37:41,000 --> 00:37:43,960
Speaker 2: to tune into The Bloomberg Law Show every weeknight at

630
00:37:44,000 --> 00:37:47,440
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631
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