Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2: In the biggest tech antitrust case in three decades, Google
Speaker 2: avoided a breakup. A DC federal judge ruled against the
Speaker 2: government's most severe proposals for remedies, like a forced sale
Speaker 2: of its Chrome browser. Judge Ahme Meta had already found
Speaker 2: in August of last year that Google illegally dominated the
Speaker 2: search market by paying more than twenty five billion dollars
Speaker 2: to Apple and other companies to make its search engine
Speaker 2: the default on smartphones and web browsers. This ruling was
Speaker 2: all about the fix, and Google will have to make
Speaker 2: some concessions, including sharing online search data with rivals and
Speaker 2: ending exclusive contracts for distribution. My guest is anti trust
Speaker 2: expert Harry First, a professor at NYU lost Harry on
Speaker 2: the Department of Justice website. It says Department of Justice
Speaker 2: wins significant remedies against Google, but this falls far short
Speaker 2: of the severe remedies that the government wanted. How much
Speaker 2: of a setback is it for the government in its
Speaker 2: attempt to curb the power of the biggest tech companies.
Speaker 3: Well, you know, people often talk about things as being
Speaker 3: a win win and that's a good thing. So I
Speaker 3: think that the judge's decision is a win win, but
Speaker 3: not a good thing. I view it as win in
Speaker 3: sort of eight point type on the government side and
Speaker 3: win in sort of sixteen point type on Google side.
Speaker 3: So here's what I mean. It's not a significant victory
Speaker 3: for the Justice Department. They did win some things, and
Speaker 3: you know, maybe that will help bring some competition into search.
Speaker 3: But I think Google won a lot by not lose
Speaker 3: using very much. They get to keep Chrome. A lot
Speaker 3: of the remedies that the department asked for and got
Speaker 3: even were cut down, circumscribed, diminished. And you know, whether
Speaker 3: what the judge did will end up changing the search business,
Speaker 3: I doubt but who knows. But we've now passed the
Speaker 3: point where the question will be will we get competition?
Speaker 3: And the question will just be is Google complying with
Speaker 3: the decree. Of course, all of that comes after a
Speaker 3: round of appeals, so there's much more to this, But
Speaker 3: in terms of, you know, the overall feeling, I think it's,
Speaker 3: you know, from a public point of view, a disappointment.
Speaker 2: So the big headline was zoeas will Google be forced
Speaker 2: to sell Chrome? So Google doesn't have to do that.
Speaker 2: Why did Judge Meta decide not to make Google divest Chrome.
Speaker 4: So this is a.
Speaker 3: Point that pervades Judge Meta's decision rightly in a legal sense,
Speaker 3: but I think not so correct from a policy point
Speaker 3: of view and really where the law ought to be.
Speaker 3: So this is in many ways a very conservative opinion.
Speaker 3: It's the judge expressing what judges often express is that
Speaker 3: they understand the limits of who they are, what the
Speaker 3: institution can do, and what they want to do on
Speaker 3: an ongoing basis. So they're conservative about this. And here
Speaker 3: the government plaintiffs are asking them to do some pretty
Speaker 3: strong restructuring of one of the superstar firms in the
Speaker 3: United States. So you've got to be a little modest.
Speaker 4: Now.
Speaker 3: The judge backs up his modesty with a lot of
Speaker 3: quotations from the Court of Appeals and recently from the
Speaker 3: Supreme Court in a different anti trust case opinion written
Speaker 3: by Justice Gorsuch, which councils, let's be careful a little bit.
Speaker 3: So the ass that Chrome be divested. Structural relief is
Speaker 3: something that the DC Circuit itself. Remember, Judge Meta is
Speaker 3: a district court judge overseen by a Court of Appeals
Speaker 3: from the DC Circuit, so he is required to follow
Speaker 3: the law from that circuit. The law from that circuit
Speaker 3: on remedies is actually pretty conservative and cautious, and that
Speaker 3: stems from actually the Microsoft case, which is much the
Speaker 3: template for the complaints that the government filed and for
Speaker 3: the government's theories. So you know, they said, well, when
Speaker 3: it comes to structural relief, restructuring reorganizing a company, you
Speaker 3: really need some strong proof before you do that. You
Speaker 3: need to watch out. And so he took those admonitions
Speaker 3: to heart and just didn't find enough to overcome that
Speaker 3: sort of a presumption that you know, you don't do
Speaker 3: this unless you really have to do it for effective relief.
Speaker 3: And this then goes to the second part. Maybe the
Speaker 3: government didn't make an effective enough case for divesting Chrome
Speaker 3: and maybe made it seem too easy, so stuck with
Speaker 3: all of that, he backed away from it.
Speaker 2: How much did AI play into Judgmenta's decision, So I.
Speaker 3: Think his decision is all about AI, frankly, and I
Speaker 3: think that he's betting and many in the industry by
Speaker 3: just simply betting that AI is going to replace Search
Speaker 3: as we know it with something else that's not search
Speaker 3: as we know it, or maybe as you and I
Speaker 3: know it, but just simply getting information and that Google Search,
Speaker 3: that product, no matter what he does in this opinion,
Speaker 3: is going to be eclipsed by some AI product. And
Speaker 3: I think that he've views generates of AI as coming
Speaker 3: to the rescue of competition.
Speaker 2: Some say it's already eroding Google's dominance in search.
Speaker 3: Yeah, the data seemed to show he he mentions this
Speaker 3: in his opinion that searches on Safari have decreased. People
Speaker 3: seem to be going directly to you know, Chat, GPT
Speaker 3: or Perplexity or some of these other AI assistant things
Speaker 3: and just getting information that way. This is the destructive
Speaker 3: force of innovation, as the economist Joseph Schumpeter talked about
Speaker 3: many years ago. So maybe he's right, and you know,
Speaker 3: that may mean that sort of didn't matter what he
Speaker 3: did so long as AI lives. But of course the
Speaker 3: worry is that we'll just replicate the current structure the
Speaker 3: tech platform, superstar firms will just control AI and we
Speaker 3: won't have moved to new competition, but we'll have a
Speaker 3: different product.
Speaker 1: He's ordering Goo.
Speaker 2: Google to share data with rivals to open up competition
Speaker 2: in online search. Google has to share some of the
Speaker 2: data with competitors, but not some of its most important data.
Speaker 3: Would you say, well, here again, it's hard to say
Speaker 3: exactly what our important data. You could say all of
Speaker 3: the data are important, the more the more. But you know,
Speaker 3: this particularly involves the search index, which is something that
Speaker 3: Google has done really well, and the government in some
Speaker 3: ways didn't ask for as much as it could, which
Speaker 3: it would have been a license to the index itself.
Speaker 3: What they wanted is some help with the data so
Speaker 3: competitors could build an index. And even with that, the
Speaker 3: judge cut down the kinds of data that will be
Speaker 3: required to be disclosed, and to me, even more importantly,
Speaker 3: the timing of the disclosure. So for some of these
Speaker 3: data it's a one time snapshot, which strikes me as
Speaker 3: you know, the judge calls that a kickstart for competition. Yeah,
Speaker 3: like a kick in the rear. I don't know, you know,
Speaker 3: a one time thing for some very important parts of
Speaker 3: some basic information to help them put together a better
Speaker 3: index of the web. There's an awful lot of information
Speaker 3: out there and indexing it is critical for an effective
Speaker 3: search engine. And you know, when it comes to sort
Speaker 3: of this user side data to click and query. You know,
Speaker 3: what we do when we get free search is create
Speaker 3: data that's worth a heck of a lot of money
Speaker 3: for which we don't get paid, we being you and
Speaker 3: me and all the other users. But these data here. Again,
Speaker 3: the judge cuts down the request, gives some amount of
Speaker 3: the request, and then sort of puts on some limits
Speaker 3: yet to be decided about how often this will be
Speaker 3: disclosed more than once. Now it's not just a snapshot,
Speaker 3: but the cap yet to be determined by this technical
Speaker 3: committee that the decree is going to set up. So
Speaker 3: I don't know, it's hard for me to say exactly,
Speaker 3: you know, will this enable competitors to really get an
Speaker 3: effective competing search engine or will it not quite be enough?
Speaker 3: And in some ways this goes to what I've always
Speaker 3: viewed as the underlying problem with these decrees is a
Speaker 3: judge trying to say what competitors need to succeed, instead
Speaker 3: of a judge saying, don't ask me, just come back,
Speaker 3: you know, Google, Just come back and let me know
Speaker 3: whether there's competition or not. And if there isn't, we're
Speaker 3: going to have to do something more about it, you know,
Speaker 3: for judges or even the Justice Department which apparently at
Speaker 3: least is still made up of some lawyers. You know,
Speaker 3: trying to design these remedies is tough, and you can
Speaker 3: feel it with what the judge is written in this opinion.
Speaker 3: It's hard and trying to figure out what the effect
Speaker 3: is going to be. He said at the beginning. You know,
Speaker 3: I don't have a crystal ball. Other judges have used
Speaker 3: that worry as well when being asked to predict effects
Speaker 3: in future markets.
Speaker 2: Google has previously said it's going to appeal. Do you
Speaker 2: think Judge Meta's decision is conservative enough to survive at
Speaker 2: least at the DC appellate court stage.
Speaker 3: So he did a lot to try to survive review
Speaker 3: by the Court of Appeals. I mean, he relied quite
Speaker 3: heavily on key decisions, particularly the Microsoft remedy decisions. And
Speaker 3: he also, oh, by the way, bolstered one of the
Speaker 3: potential weaknesses in the liability decision while he was at it.
Speaker 3: So I think it's not perfectly bulletproof the aspect of
Speaker 3: letting AI companies share in some of these data. If
Speaker 3: I were Google, I would be hitting on that whether
Speaker 3: that was you know, not warranted given as he started
Speaker 3: out by saying, there was nothing at the trial about
Speaker 3: AI and there are ways of casting what he did
Speaker 3: as maybe not within the bounds of what the goal
Speaker 3: was in the trial. So there's some potential issue there.
Speaker 3: And you know, I mean it could be more conservative.
Speaker 3: I guess he could have just given Google what Google wanted.
Speaker 3: But it's a carefully drawn opinion, and you know, time
Speaker 3: after time he sort of knocks the government plaintiffs back
Speaker 3: a bit by saying, you know, you've overreached, you're asking
Speaker 3: for too much. You know we need to be modest, etc. Etc.
Speaker 2: And later this month Google is schedule to go on
Speaker 2: trial to determine remedies in another case where a judge
Speaker 2: has found the company holds illegal monopolies in online advertising tech.
Speaker 2: So more to come, Thanks so much, Harry. That's Professor
Speaker 2: Harry First of NYU Law School. Coming up next. Trump
Speaker 2: can't use a wartime act to deport alleged gang members.
Speaker 2: I'm June Grosso. When you're listening to Bloomberg.
Speaker 1: This is Bloomberg Law with June grosseo from Bloomberg Radio.
Speaker 5: Venezuela has been a very bad actor. They've been, as
Speaker 5: you know, they've been sending millions of people into our country.
Speaker 5: Many of them Trend de Aragua, some of the worst gang,
Speaker 5: some of the worst people anywhere in the world.
Speaker 2: President Trump used an eighteenth century wartime law to try
Speaker 2: to quickly deport alleged members of a violent Venezuelan gang
Speaker 2: in March, arguing that the Trend de Aragua gang had
Speaker 2: been sent to the US by Venezuela as president to
Speaker 2: destabilize the country. For the first time, a federal appeals
Speaker 2: court weighed in this week, blocking the administration from using
Speaker 2: the Alien Enemies Act of seventeen ninety eight to deport
Speaker 2: the men. The Fifth Circuit found that quote a country's
Speaker 2: encouraging its residents and citizens to enter this country illegally
Speaker 2: is not the modern day equivalent of sending an armed
Speaker 2: organized force to occupy, to disrupt, or to otherwise harm.
Speaker 2: The United States borders are. Tom Holman had admitted that
Speaker 2: the wartime law was being used for swift deportations that
Speaker 2: avoided due process.
Speaker 5: I'm not arguing right here that nobody should get due process.
Speaker 5: I'm just saying there's a different process on the.
Speaker 2: Alien Enemies Act unless of a process, and you see
Speaker 2: to Title eight.
Speaker 1: DC.
Speaker 2: Appellate Judge Patricia Millett criticized the government for not giving
Speaker 2: the Venezuelans any opportunity to challenge their removals.
Speaker 6: There were planeloads of people, there were no procedures in
Speaker 6: place to notify people. Nazi's got better treatment under the
Speaker 6: Alien Enemy Act and has happened here.
Speaker 2: The two to one decision from the New Orleans Court
Speaker 2: will most likely end up back at the Supreme Court.
Speaker 2: My guest is immigration law expert Leon Fresco, a partner
Speaker 2: at Hollanda Knight le On. This case has been going
Speaker 2: on almost sick so it has been up to the
Speaker 2: Supreme Court twice already catch us up.
Speaker 4: This is a case involving President Trump's proclamation in March
Speaker 4: of twenty twenty five that the Venezuelan gang Trend de
Speaker 4: Arragua was a dangerous invading force into the United States
Speaker 4: such that its members should be deported under the Alien
Speaker 4: Enemies Act, which permits deportation without due process. Essentially, the
Speaker 4: government can just apprehend anyone it says is in the
Speaker 4: Alien Enemies Act group, which in this case is Trend
Speaker 4: the Arragua, and deport them. And people are being deported
Speaker 4: to El Savador, to the Sea Coats Prison. Now There
Speaker 4: was two iterations of this case. The first one started
Speaker 4: in DC where just Bozberg had said that the government
Speaker 4: couldn't do this, and there was the debate about the
Speaker 4: flights and the debate about whether there should be contempt.
Speaker 4: But nevertheless, the Supreme Court comes in and says, no, no, no,
Speaker 4: all of that was wrong. None of that should have
Speaker 4: been filed in DC. These kinds of cases should be
Speaker 4: filed as abias cases. Now. Mind you, there was a
Speaker 4: decision a couple of years ago where just as Alito
Speaker 4: had said no more habeas for immigration. But nevertheless, I
Speaker 4: think that these facts on the ground concerned the Supreme
Speaker 4: Court so much they said, well, you've got to be
Speaker 4: able to file something, so fine, we're back to habeas again.
Speaker 4: So you've got to file them as habeas cases. And
Speaker 4: the habeas cases have to be in the locations where
Speaker 4: people were being detained. Well where were people being detained.
Speaker 4: They were being detained all over Texas. So there were
Speaker 4: district court decisions all over Texas. But now finally the
Speaker 4: main case reaches the Fifth Circuit and the Fifth Circuit
Speaker 4: grants the preliminary injunction preventing the removal of the petitioners
Speaker 4: who were the Venezuelan nationals that the Trump administration wanted
Speaker 4: to deport under the Alien Enemies Act.
Speaker 2: Federal judges in Colorado, New York, and Texas have ruled
Speaker 2: that Trump improperly invoked that act. How did the Fifth
Speaker 2: Circuit come to that same conclusion?
Speaker 4: The Fifth Circuit, in a two to one decision, said
Speaker 4: that at the end of the day, the Alien Enemies
Speaker 4: Act doesn't justify their removals because there isn't a declared
Speaker 4: war and that the actions of this trend that Aragua
Speaker 4: gang do not constitute an invasion or a predatory incursion
Speaker 4: by a foreign nation or a government, which requires, in
Speaker 4: their view, military like actions directed by a foreign power.
Speaker 4: They're saying, this is more of sort of a gang
Speaker 4: or criminal type of thing, but it isn't actually a
Speaker 4: military incursion. They don't even get into anything about whether
Speaker 4: these individuals specifically are members of trend the Aragua or
Speaker 4: anything like that. They just say that this invocation of
Speaker 4: the Alien Enemies Act is unlawful and so it cannot
Speaker 4: be used to create deportation without due process. Now, they
Speaker 4: did say, if the Trump administration wants to deport these people,
Speaker 4: they can deport them under any other grounds that's permissible.
Speaker 2: The borders are Tom Holman and others in the administration
Speaker 2: and kept saying that the Venezuelans were terrorists. Was that
Speaker 2: part of their legal argument?
Speaker 4: Well, first of all, you're correct. There's a very concerted effort,
Speaker 4: even in this bombing that occurred this week with the
Speaker 4: Venezuelan drug lords on the boat, that everybody calling them
Speaker 4: in the administration terrorists, to try to link that with
Speaker 4: some sort of military like action directed by a foreign power,
Speaker 4: to get it as close as possible to the Alien
Speaker 4: Enemies Act. But what this court is saying is that's
Speaker 4: not really what these people are. These people are not
Speaker 4: being instructed by the Venezuelan government to come to the
Speaker 4: United States and commit war acts against the United States.
Speaker 4: These are just individual criminals trying to profit off of
Speaker 4: drug and gang activities. They're not soldiers or quasi soldiers
Speaker 4: acting on behalf of the Venezuelan government.
Speaker 2: This is a Fifth Circuit decision, the most conservative appellate
Speaker 2: court in the country, George W. Bush appointing Biden appointee
Speaker 2: in the majority and in descent a Trump appointee. What
Speaker 2: did the dissent argue.
Speaker 4: Well, the dissenting judge who used to be the Solicitor
Speaker 4: General of the State of Texas, a very well known,
Speaker 4: strong conservative judge, Judge Oldham. He basically argued that the
Speaker 4: Alien Enemies Act is something that is so broad in
Speaker 4: terms of the congressional authority that the courts really don't
Speaker 4: have a role in reviewing a presidential determination under the
Speaker 4: Alien Enemies Act. Basically, what he was saying is that
Speaker 4: the courts should not second guess when the president says
Speaker 4: there's a war, because this can lead to very dangerous circumstances,
Speaker 4: and that you know, you have the president who has
Speaker 4: all of this sort of expertise in the sense that
Speaker 4: they have the Defense Department and the CIA and the
Speaker 4: Department of Homeland Security and the NSA to do all
Speaker 4: of this work and consultation, and they make a determination
Speaker 4: that there is a dangerous environment akin to the environment
Speaker 4: that's required under the Alien Enemies Act. For the courts
Speaker 4: who are just judges sitting there in you know, Louisiana
Speaker 4: or Texas or wherever they're sitting that don't have all
Speaker 4: of this access to be able to come in and say, well,
Speaker 4: we don't actually think this rises to the kind of
Speaker 4: war level threat that is required under the Alien Enemies Act.
Speaker 4: Keeps saying that is incredibly dangerous because what is the
Speaker 4: limiting principle there? Now the judges can decide what is
Speaker 4: a war, what is in a war, and that's not
Speaker 4: what Congress had intended here. The problem with that is,
Speaker 4: at the end of the day, if you really have
Speaker 4: no limiting principle on the Alien Enemies Act at all,
Speaker 4: including whether it can be invoked and who it can
Speaker 4: be invoked again, then at that point, I mean, there
Speaker 4: really would be no way for either you or I
Speaker 4: or any of your listeners to go into court if
Speaker 4: we were mistaken Lee apprehended by Ice. Ice could say,
Speaker 4: you know, Leon or June, you're members of this trend,
Speaker 4: that Ragua gang, and we're sending you te El Salvador.
Speaker 4: And you could say, yeah, but I've never visited Venezuela,
Speaker 4: and I don't even know any Venezuelans and I'm not
Speaker 4: a member of a gang. I toast the bloomberg. So
Speaker 4: and it won't matter because there's no court to bring
Speaker 4: it to. And so I don't think anyone will be
Speaker 4: fully comfortable with that kind of decision. And I don't
Speaker 4: think the Supreme Court was comfortable with that, which is
Speaker 4: why they didn't issue that decision. And moving forward, I
Speaker 4: don't think they're gonna get there in terms of to
Speaker 4: just not have any due process determination as to these decisions.
Speaker 2: Yeah, Colorado judge called that argument nonsense.
Speaker 4: It's a difficult argument to make. I mean, look, it
Speaker 4: all depends where you're approaching this from. If you're approaching
Speaker 4: this from a belief system that everybody in the world
Speaker 4: acts in good faith, then you could conceivably understand you'd say, well,
Speaker 4: why would a president ever want to do something like
Speaker 4: this put someone in a detention if it wasn't absolutely necessary.
Speaker 4: But if you were to approach it from the perspective
Speaker 4: that sometimes people don't act in good faith or sometimes
Speaker 4: people make a mistake, then maybe you do need some
Speaker 4: due process in that system, because otherwise, what is checking
Speaker 4: those kinds of abuses from occurring.
Speaker 2: The ruling could be appealed to the full Fifth Circuit
Speaker 2: or could be appealed directly to the Supreme Court. Is
Speaker 2: there any reason to bother going for and on bank
Speaker 2: hearing at the Fifth Circuit when the case is just
Speaker 2: going to end up at the Supreme Court.
Speaker 4: Anyway, you know, right now, the government doesn't have the
Speaker 4: strongest hand, and maybe you know, the government wins in
Speaker 4: the Fifth Circuit fully, and so then it would be
Speaker 4: the onus then on the foreign nationals to actually then
Speaker 4: appeal to the Supreme Court. So from that perspective, they
Speaker 4: may want to strengthen their hand. But honestly, if the
Speaker 4: trumpet is trying to really say, hey, these are the
Speaker 4: most dangerous people in the world and we need to
Speaker 4: get them out as soon as possible, asking for Unbank
Speaker 4: review of the Fifth Circuit doesn't seem to make a
Speaker 4: lot of sense, because why are you delaying getting to
Speaker 4: the ultimate outcome here. So I don't think from a
Speaker 4: political perspective it makes a lot of sense to go
Speaker 4: for Unbank review. It may make sense strengthening the argument
Speaker 4: in a typical case because you might win in the
Speaker 4: en Bank. But at the end of the day, if
Speaker 4: what you're trying to say is, look, we need to
Speaker 4: final answer, we need to get these theorists out of
Speaker 4: the country as soon as possible, I think you would
Speaker 4: want the Supreme Court to look at this as soon
Speaker 4: as possible.
Speaker 2: So the Supreme Court never answered the question of whether
Speaker 2: Trump's use of the Alien Enemies Act is valid. Do
Speaker 2: you have any inkling from the way they ruled twice before.
Speaker 4: Well, I think that at the end of the day,
Speaker 4: there won't be five justices that say that you can't
Speaker 4: review this general concept of whether it was proper to
Speaker 4: have an Alien Enemies Act determination. Now, they may give
Speaker 4: some very strong difference to the administration. In fact, I
Speaker 4: would be shocked if they didn't give strong difference to
Speaker 4: the administration. But they may say, look, even with very
Speaker 4: strong difference, this isn't the kind of case that gets it.
Speaker 4: I mean that issue is going to be closed. I
Speaker 4: don't think there will be any justice that says that
Speaker 4: an individual person can't come forward and make a claim
Speaker 4: that look, you may claim there's a problem, but I'm
Speaker 4: not a member of the problem group. I think those
Speaker 4: people will nine nothing be able to get due process,
Speaker 4: in habeas or in some other way to be able
Speaker 4: to make that argument. That's the second thing. And then
Speaker 4: the third thing. The court said that seven days is
Speaker 4: enough to make these claims, so that the government, if
Speaker 4: they designate you as part of the problem group, you
Speaker 4: have seven days to file a lawsuit or you can
Speaker 4: be deported and the dissenting judged there, Judge Ramirez said, no,
Speaker 4: you need twenty one days at least. And you know
Speaker 4: this is everybody just making this up out of old clause.
Speaker 4: But the question is, you know, if you don't speak English,
Speaker 4: you don't have access to a lawyer, what is a
Speaker 4: reasonable amount of time to give you to file a
Speaker 4: federal Habeast complaint in the court. That's not the easiest
Speaker 4: thing for someone to do. Imagine you know, you or
Speaker 4: I going to China right now and trying to file
Speaker 4: a court document there when we don't speak Chinese, we
Speaker 4: don't know anything about the law, We don't know anything.
Speaker 4: You know, what would be a reasonable amount of time
Speaker 4: to give a person in that situation? And so that's
Speaker 4: the question here, and you know the Supreme Court's going
Speaker 4: to have to grapple with that too.
Speaker 2: We'll see if the administration appeals this directly to the
Speaker 2: Supreme Court. Thanks so much, Leon. That's Leon Fresco of
Speaker 2: Hollanden Night. Coming up next, a judge rules the National
Speaker 2: Guard deployment to La broke the law. I'm June Grosso
Speaker 2: and you're listening to Bloomberg.
Speaker 5: If I didn't send the National Guard into Los Angeles.
Speaker 1: You wouldn't.
Speaker 5: I would be making an announcement to that be talking
Speaker 5: about Huntsville, and I'd simultaneously be saying, by the way,
Speaker 5: the Olympics is not coming to Los Angeles.
Speaker 2: But a federal judge ruled on Tuesday that President Trump's
Speaker 2: deployment of National Guard troops and US Marines to carry
Speaker 2: out law enforcement activities in Los Angeles this summer was illegal.
Speaker 2: In a scathing decision, Judge Charles Bryer noted that Trump
Speaker 2: has made threats to deploy the Guard and troops in
Speaker 2: other cities, which would create a national police force with
Speaker 2: the President as its chief.
Speaker 5: I could do that with Chicago, We could do that
Speaker 5: with New York. We could do it with Los Angeles.
Speaker 5: So we're making a determination, now do we go to Chicago.
Speaker 7: I find this extraordinarily strange, as Chicago does not want
Speaker 7: troops on our streets.
Speaker 2: Illinois Governor JB. Pritzker has said he'll challenge in court
Speaker 2: any deployment of troops to Chicago, where a violent crime
Speaker 2: is down twenty three percent over last year, and Mayor
Speaker 2: Brandon Johnson has issued an executive order outlining the city's
Speaker 2: plans to resist any deployment of troops.
Speaker 7: The sweeping executive order directs our Department of Law to
Speaker 7: pursue any and every legal mechanism to hold this administration
Speaker 7: accountable for violating the rights of chicagoan's. This order affirms
Speaker 7: that the Chicago Police Department will not collaborate with military
Speaker 7: personnel on police patrols or civil immigration enforcement.
Speaker 5: Now we're going to do it anyway. We have the
Speaker 5: right to do it because I have an obligation to
Speaker 5: protect this country.
Speaker 2: It remains unclear what actions Trump may take in Chicago
Speaker 2: and when. My guest is constitutional law expert Harold Krant,
Speaker 2: a professor at the Chicago Kent College of Law, hal
Speaker 2: is Judge Briar's decision a complete refutation of Trump's sending
Speaker 2: troops into Los Angeles.
Speaker 8: It's a partial reputation. And indeed, just Buyer's order allows
Speaker 8: the military to remain. What he has done is delineate
Speaker 8: what they can and cannot do. And so this is
Speaker 8: an effort by the judge. This steer clear of the
Speaker 8: earlier Ninth Circuit decision which lifted Day on his earlier
Speaker 8: preliminary injunction. So the court here is trying to be
Speaker 8: careful in trying to say what the National Guard can
Speaker 8: do and can't do.
Speaker 2: Judge Briar delayed his ruling until next week to give
Speaker 2: the administration ten days to appeal, but it didn't take
Speaker 2: them that long. They appealed the next day on Wednesday,
Speaker 2: and the Ninth Circuit put this second order on hold
Speaker 2: on Thursday to give it more time to rule on
Speaker 2: the administration's request for an indefinite pause. So a fast
Speaker 2: moving case now. Judge Briar did rule that the deployment
Speaker 2: was a violation of the Posse Commatantis Act that bars
Speaker 2: the military from engaging in domes law enforcement.
Speaker 8: He did, but he said that there were some duties
Speaker 8: that the federalized National Guard could in fact undertake consistent
Speaker 8: with the pass Comatatas Act. But he made a fatual
Speaker 8: finding that the troops had done more than that they
Speaker 8: had engaged in general law enforcement activity, which she said
Speaker 8: was proscribed under the camatatas aac and tradition. So he
Speaker 8: made a more narrow nuance finding when they had previously.
Speaker 8: He didn't even question the ability of the president to
Speaker 8: federalize the National Guard against the governor's wishes, but he
Speaker 8: said even if the president can do that the National
Speaker 8: Guard can't engage in general law enforcement activities, including covering
Speaker 8: ice agents, including dispersing crowds and so forth.
Speaker 2: And just to clarify, Judge Bryer had previously ruled that
Speaker 2: Trump had to return control of the National Guard to
Speaker 2: the state, but that ruling was put on hold by
Speaker 2: the Ninth Circuit, And this new ruling applies specifically to
Speaker 2: the Possi Cooma Tatis Act.
Speaker 8: So he is trying to create a decision in my
Speaker 8: mind here that is consistent with the broad principles he articulated,
Speaker 8: previously limiting the president's abilities to nationalize the Federal Guard,
Speaker 8: but then, realizing that the Ninth Circuit had overruled him
Speaker 8: in part previously, then decided to add more granually that
Speaker 8: even if the President could nationalize the National Guard, that
Speaker 8: they could not engage in sort of typical law enforcement authorities.
Speaker 8: But I think the consensus has been that the president
Speaker 8: cannot nationalize the National Guard. You know, unless all typical
Speaker 8: law enforcement has collapsed, you can't enforce court orders or
Speaker 8: there's an insurrection, and obviously those two things are not
Speaker 8: in place in Los Angeles. In my mind, though, this
Speaker 8: is a sideshow because President Trump continually says that he
Speaker 8: can federalize the National Guard and send them wherever he wants,
Speaker 8: to include Chicago, just for ordinary criminal law enforcements. So
Speaker 8: it's clear that there's a clash between the Court's view
Speaker 8: of the limits of the president's authority under the Pasi
Speaker 8: Coomatatis Act and what the President thinks he can do
Speaker 8: and has continually espoused he can do in terms of
Speaker 8: federalizing the troops at a moment's notice.
Speaker 2: And the judge said he was applying his injunction statewide
Speaker 2: instead of just in Los Angeles, because Trump had demonstrated
Speaker 2: a desire to violate the Passikama Tatis Act in other cities.
Speaker 2: And Judge Briar cited this statement by Trump in an
Speaker 2: August twenty seventh cabinet meeting where he discussed sending the
Speaker 2: National Guard into Chicago.
Speaker 8: Have the right to do anything I want to do.
Speaker 5: I'm the President of the United States. If I think
Speaker 5: our country is in danger, and it is in danger
Speaker 5: in these cities, I can do it.
Speaker 2: Do you think Judge Briar went too far in his opinion.
Speaker 8: My only concern about the the Court's opinion is that
Speaker 8: the Court seemed to be dismissing the president's sort of
Speaker 8: inherent authority. As a statutory matter, I think the Court
Speaker 8: is on strong ground, both historically and in terms of
Speaker 8: textually of understanding the limits of the pass comatatous Act.
Speaker 8: I think the Court was a little bit quick in
Speaker 8: terms of dismissing the president sort of inherent authority under
Speaker 8: the Commander and Chief clause of the Constitution. Clearly, presidents
Speaker 8: have to make tough costs, tough cause in terms of
Speaker 8: lias on the streets, tough cause in terms of potential
Speaker 8: invasions and so forth. And so if the president said
Speaker 8: we need to protect federal buildings, we need to protect
Speaker 8: federal instrumentalities, might think that Article to itself might give
Speaker 8: the president arguably does give it the president that kind
Speaker 8: of authority to order troops to protect those even if
Speaker 8: states say they don't need it. So that's not at
Speaker 8: stake here, and President Trump's news conference clearly illustrates that
Speaker 8: that's not at stake here. But I think that might
Speaker 8: be a weakness in the Court's opinion, because I do
Speaker 8: think that the chief executive has to make those tough
Speaker 8: calls if there are threats in the president's mind to
Speaker 8: federal instrumentalities within the states.
Speaker 2: With regard to Chicago, Trump's only stated justification for sending
Speaker 2: troops in is to combat what he says is rampant crime.
Speaker 2: The same goes for New York and Baltimore, despite the
Speaker 2: data showing that crime has dropped in those cities, and
Speaker 2: Chicago isn't even on the list of the ten most
Speaker 2: dangerous cities in the country.
Speaker 8: Well, absolutely no justification for what the President said he's
Speaker 8: going to do in Chicago, which is even more indefensible
Speaker 8: than what he did in California. And I would expect
Speaker 8: that the mayor of Chicago, Mayor Johnson, and the governor of Illinois,
Speaker 8: Governor Pritsker, will immediately go to court not only cite
Speaker 8: the most recent Judge Briar decision, but cite just more
Speaker 8: convincingly that the President has acknowledged the purpose for why
Speaker 8: he's sending in troops into Chicago, and that's absolutely prohibited
Speaker 8: by the pussy com pat effect under any construction of
Speaker 8: the terms of the statute.
Speaker 2: So Judge Briar's decision has no effect in Illinois, correct,
Speaker 2: But is the reasoning strong enough to apply to Illinois?
Speaker 8: I think that reasoning will cover the same situation, and again,
Speaker 8: Chicago is an easier case. And I think that to
Speaker 8: the extent that the President would say that ICE agents
Speaker 8: are under attack and that he is commander Chief can't
Speaker 8: ensure an orderly function of immigration processes in this country
Speaker 8: without calling in supportive troops. That would be the strongest
Speaker 8: sort of justification that I can understand in the California
Speaker 8: context for the use of either the federalized National Guard
Speaker 8: or for the Marines. But he clearly in Chicago's built
Speaker 8: is that I don't even need that justification. I can
Speaker 8: send troops wherever I want, whenever I want, because I'm
Speaker 8: the President of United States, And that downright is frightening.
Speaker 8: Not only is it clearly outlawed by the Pussy Comatatas
Speaker 8: Act and by the history that led to the act,
Speaker 8: but it's a huge step towards autocracy.
Speaker 2: What if instead of sending in the National Guard or
Speaker 2: the Marines, Trump just sent in lots and lots of
Speaker 2: federal agents, the FBI, the DEA ICE. Would there be
Speaker 2: any problem with that?
Speaker 8: Legally there may be pockets of restrictions, but if ordinarily
Speaker 8: that would be within his power, and certainly he can
Speaker 8: shift FBI agents over to Ice and his temporary details.
Speaker 8: He has the power to do that under prior statute.
Speaker 8: So in that respect he could accomplish at least some
Speaker 8: of his goals. But again, he could not engage those
Speaker 8: FBI agents in terms of taking over for general law
Speaker 8: enforcement for Chicago because the FBI is not authorized. The
Speaker 8: agents aren't authorized to deal with conventional robbery, theft, etc.
Speaker 8: That are state crimes, not federal crimes.
Speaker 2: Judge Bryer also said that if the President wants to
Speaker 2: avoid the restrictions of the Posse comma Tatis Act, he
Speaker 2: could invoke a valid exception like the Insurrection Act quote
Speaker 2: along with its requisite showing that state and local law
Speaker 2: enforcement are unable or unwilling to act. Obviously, Trump did
Speaker 2: not invoke the Insurrection Act when the capital was attacked
Speaker 2: in twenty twenty one, but theoretically could he do it
Speaker 2: in a city like Chicago.
Speaker 8: Well, when we had riots in the wake of the
Speaker 8: sassination of Martin Luther King, when we had the unrest
Speaker 8: because of the George Floyd murder, arguably local law enforcement
Speaker 8: could not take the helm and preserve law and order,
Speaker 8: and that is an exception of the putscun Titus Act,
Speaker 8: and indeed, the courts would be in difficult position if
Speaker 8: the president made a careful finding that that is why
Speaker 8: he is sending troops, that there is no local law
Speaker 8: enforcement that can take care of law enforcement activities. I
Speaker 8: don't even know what the theory would be in Chicago,
Speaker 8: but if he says that there is a insurrection because
Speaker 8: undocumented workers are rising up in arms against the authority,
Speaker 8: or he would say that some other kind of indirection
Speaker 8: is taking place, then he could justifiably use federal troops.
Speaker 8: He has not made that claim, and indeed, given the
Speaker 8: fact that the clim has gone down into these like Washington,
Speaker 8: DC in Chicago, it's simply far fetched. So, yes, presidents
Speaker 8: have sent in troops, and President Trump could in the future,
Speaker 8: respecting Congress, but not in these situations. Obviously, the Constitution
Speaker 8: ascribes a principal role to Congress in deciding when to
Speaker 8: introduce the military into civilian situations. Congress has done so
Speaker 8: in the Potsakakamatitis Act as well as the limitations in
Speaker 8: the Insurrection Act. And that's the role that the Constitution
Speaker 8: gives to Congress. And Trump is just writing buckshot over
Speaker 8: the constitutional structure.
Speaker 2: And with all the legal questions. We haven't discussed the cost.
Speaker 2: California Governor Gavin Newsom says that it costs the taxpayers
Speaker 2: one hundred and eighteen million dollars when Trump sent the
Speaker 2: National Guard to Los Angeles. Something else to consider, Thanks
Speaker 2: so much. How that's Professor Harold Krent of the Chicago
Speaker 2: Kent College of Law. And that's it for this edition
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