1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio. 2 00:00:08,760 --> 00:00:13,600 Speaker 2: Yesterday, while announcing the federal takeover of DC's police department 3 00:00:13,840 --> 00:00:16,880 Speaker 2: and the deployment of the National Guard to crack down 4 00:00:16,920 --> 00:00:20,639 Speaker 2: on crime in the nation's capital, President Trump threatened to 5 00:00:20,680 --> 00:00:26,000 Speaker 2: apply the same unprecedented action to other democratic run cities 6 00:00:26,480 --> 00:00:28,160 Speaker 2: like New York and Chicago. 7 00:00:28,880 --> 00:00:30,520 Speaker 3: And if we need to, we're going to do the 8 00:00:30,520 --> 00:00:33,800 Speaker 3: same thing in Chicago, which is a disaster. We have 9 00:00:33,840 --> 00:00:37,720 Speaker 3: a mayor there who's totally incompetent. He's an incompetent man. 10 00:00:38,560 --> 00:00:42,280 Speaker 3: And we have an incompetent governor there. Pritzker is an 11 00:00:42,320 --> 00:00:44,920 Speaker 3: incompetent But when. 12 00:00:44,800 --> 00:00:49,639 Speaker 4: I look at Chicago and I look at LA, if 13 00:00:49,680 --> 00:00:53,080 Speaker 4: we didn't go to LA three months ago, La would 14 00:00:53,120 --> 00:00:55,000 Speaker 4: be burning like the part that didn't burn. 15 00:00:55,600 --> 00:00:59,120 Speaker 2: But the legality of that deployment of the National Guard 16 00:00:59,120 --> 00:01:02,680 Speaker 2: in Marines to Los Angeles in June is a question 17 00:01:02,760 --> 00:01:05,440 Speaker 2: that will be determined at a trial this week in 18 00:01:05,520 --> 00:01:09,039 Speaker 2: San Francisco Federal Court. Trump sent the troops to the 19 00:01:09,120 --> 00:01:14,120 Speaker 2: nation's second largest city to address protests against immigration arrests 20 00:01:14,360 --> 00:01:18,679 Speaker 2: against the wishes of California Governor Gavin Newsom Newsom and 21 00:01:18,959 --> 00:01:22,560 Speaker 2: La Mayor Karen Bass have argued that the troops weren't 22 00:01:22,640 --> 00:01:26,960 Speaker 2: needed and their presence actually inflamed tensions in the city. 23 00:01:27,600 --> 00:01:31,840 Speaker 1: He federalized another two thousand Guard members. He deployed more 24 00:01:31,880 --> 00:01:36,520 Speaker 1: than seven hundred active US Marines. These are the men 25 00:01:36,560 --> 00:01:40,760 Speaker 1: and women trained for foreign combat, not domestic law enforcement. 26 00:01:42,560 --> 00:01:45,720 Speaker 2: We're working with officials, we're organizing resources. 27 00:01:46,120 --> 00:01:49,080 Speaker 3: But what we're seeing in Los Angeles is chaos that 28 00:01:49,240 --> 00:01:50,720 Speaker 3: is provoked by the administration. 29 00:01:51,640 --> 00:01:54,560 Speaker 2: My guest is Claire Finkelstein, a professor of law at 30 00:01:54,640 --> 00:01:58,640 Speaker 2: the University of Pennsylvania. She's an expert in war powers 31 00:01:58,680 --> 00:02:02,680 Speaker 2: and national security life. Claire tell us about California's suit 32 00:02:02,760 --> 00:02:04,320 Speaker 2: against the Trump administration. 33 00:02:04,960 --> 00:02:11,160 Speaker 5: So, California filed suit to object to the federalization of 34 00:02:11,200 --> 00:02:15,880 Speaker 5: the California National Guard. And there were two bases that 35 00:02:16,000 --> 00:02:21,880 Speaker 5: the Trump administration has claimed for federalizing the California National Guard, 36 00:02:22,000 --> 00:02:26,760 Speaker 5: and one is the protective power. This is claimed to 37 00:02:26,800 --> 00:02:30,080 Speaker 5: be an inherent article to power that the president can 38 00:02:30,280 --> 00:02:35,840 Speaker 5: wield in order to protect federal assets. That means federal persons, 39 00:02:35,880 --> 00:02:39,960 Speaker 5: federal buildings, and to say we're out there in order 40 00:02:40,040 --> 00:02:46,040 Speaker 5: to protect anything federal, so that means ice agents, and 41 00:02:46,080 --> 00:02:49,120 Speaker 5: the claim is ice agents couldn't do their jobs. There 42 00:02:49,120 --> 00:02:53,160 Speaker 5: are also federal buildings under threat, and so we had 43 00:02:53,200 --> 00:02:57,160 Speaker 5: to federalize the National Guard in order to protect federal assets. 44 00:02:57,160 --> 00:02:59,240 Speaker 5: So that's number one, and then the other one is 45 00:02:59,320 --> 00:03:02,680 Speaker 5: ten USC. Twelve four h six, which is a little 46 00:03:02,800 --> 00:03:06,320 Speaker 5: use statute. The last time it was used was actually 47 00:03:06,360 --> 00:03:09,839 Speaker 5: in the Nixon era to federalize the Guard on the 48 00:03:09,880 --> 00:03:14,600 Speaker 5: grounds that there was a rebellion or that they could 49 00:03:14,680 --> 00:03:19,160 Speaker 5: not otherwise get compliance with the law, and that was 50 00:03:19,320 --> 00:03:23,480 Speaker 5: something that the Trump administration was claiming in this instance. 51 00:03:23,960 --> 00:03:27,480 Speaker 5: The State of California challenged that and said, what's the 52 00:03:27,520 --> 00:03:30,760 Speaker 5: basis for the federal government thinking that there was a rebellion? 53 00:03:31,360 --> 00:03:35,160 Speaker 5: No signs of rebellion here, just some law enforcement issues 54 00:03:35,160 --> 00:03:38,280 Speaker 5: which we, the State of California, can handle on top 55 00:03:38,320 --> 00:03:40,920 Speaker 5: of it. California was saying, this is a violation of 56 00:03:40,960 --> 00:03:45,360 Speaker 5: the tenth Amendments. We, the State of California, California governor, 57 00:03:45,480 --> 00:03:51,080 Speaker 5: California officials are in charge of law enforcement and police powers, 58 00:03:51,760 --> 00:03:54,400 Speaker 5: and we are not asking you to come in. So that, 59 00:03:54,480 --> 00:03:58,600 Speaker 5: in general, when there is federalization to assist with police 60 00:03:58,640 --> 00:04:02,800 Speaker 5: thing that is normally at the request of a governor. 61 00:04:03,320 --> 00:04:07,040 Speaker 5: There's some other issues, other arguments that they made about 62 00:04:07,160 --> 00:04:10,680 Speaker 5: how twelve four h six was applied, such as the 63 00:04:10,720 --> 00:04:14,560 Speaker 5: fact that twelve four h six requires that troops be 64 00:04:14,680 --> 00:04:19,440 Speaker 5: deployed with coordination of the governor, that the troops have 65 00:04:19,560 --> 00:04:22,320 Speaker 5: to be deployed through the governor, and that wasn't done. 66 00:04:22,520 --> 00:04:27,320 Speaker 5: Governor Newsom wasn't even informed about the federalization of the 67 00:04:27,440 --> 00:04:30,440 Speaker 5: National Guard before it occurred, and a number of other 68 00:04:30,520 --> 00:04:33,880 Speaker 5: points that they argued. But that's the gist of their claim. 69 00:04:34,279 --> 00:04:37,640 Speaker 2: The trial judge Charles Bryer, who by the way, is 70 00:04:37,800 --> 00:04:42,120 Speaker 2: retired Justice Stephen Bryer's younger brother, so that the factual 71 00:04:42,200 --> 00:04:46,400 Speaker 2: issue is did the Marines and National Guard violate the 72 00:04:46,440 --> 00:04:50,559 Speaker 2: Posse Comma Tatis Act? Tell us about that Act from 73 00:04:50,880 --> 00:04:52,080 Speaker 2: eighteen seventy eight. 74 00:04:52,640 --> 00:04:55,719 Speaker 5: So the puss commatadism that's what's being litigated this week, 75 00:04:56,120 --> 00:05:01,919 Speaker 5: says that federal troops normally cannot engage in law enforcement. 76 00:05:02,600 --> 00:05:06,240 Speaker 5: So that is very different from when the governor is 77 00:05:06,279 --> 00:05:10,839 Speaker 5: in control of the California National Guard under States active 78 00:05:10,920 --> 00:05:14,760 Speaker 5: duty status or Title thirty two, because in that case 79 00:05:14,880 --> 00:05:19,200 Speaker 5: there is an exception to Posse coomatadis when it is 80 00:05:19,480 --> 00:05:23,560 Speaker 5: under control of state and local authorities. But when troops 81 00:05:23,600 --> 00:05:28,120 Speaker 5: are federalized, the Posse Coomatadas Act applies, and that is 82 00:05:28,160 --> 00:05:32,320 Speaker 5: a criminal statute that says federal troops cannot engage in 83 00:05:32,440 --> 00:05:36,360 Speaker 5: law enforcement activities. That the federal government says, in this case, 84 00:05:36,600 --> 00:05:39,440 Speaker 5: under the protective Power and under twelve four h six 85 00:05:39,680 --> 00:05:43,560 Speaker 5: number one, we were not engaged in law enforcement activities. 86 00:05:43,640 --> 00:05:46,560 Speaker 5: The rules for the use of force that we gave 87 00:05:46,800 --> 00:05:50,240 Speaker 5: to the troops, that's like their rules of engagement. Exception 88 00:05:50,240 --> 00:05:52,640 Speaker 5: in domestic context, we call that rules for the use 89 00:05:52,680 --> 00:05:56,159 Speaker 5: of force did not involve, for example, making arrest. Troops 90 00:05:56,160 --> 00:05:59,280 Speaker 5: were told that they could not make arrests specifically, and 91 00:05:59,440 --> 00:06:02,799 Speaker 5: therefore they were not violating Posse coomatatis because they weren't 92 00:06:02,839 --> 00:06:07,480 Speaker 5: involved in law enforcement activities. But California has said, in fact, 93 00:06:07,920 --> 00:06:12,159 Speaker 5: you were involved in law enforcement activities and cited a 94 00:06:12,240 --> 00:06:17,640 Speaker 5: number of instances such as the ability to detain individuals 95 00:06:18,120 --> 00:06:21,599 Speaker 5: waiting for law enforcements such as LAPD to show up. 96 00:06:22,200 --> 00:06:25,279 Speaker 5: They maintain that that's a violation of passcommatatas. 97 00:06:26,040 --> 00:06:29,120 Speaker 2: Is Judge Bryer only going to consider the posse comma 98 00:06:29,200 --> 00:06:32,039 Speaker 2: Tatis Act, or will you also consider the claims that 99 00:06:32,400 --> 00:06:34,640 Speaker 2: the deployment violates the Tenth Amendment. 100 00:06:35,120 --> 00:06:38,400 Speaker 5: From what I understand, passi commatatas is the main issue 101 00:06:38,480 --> 00:06:41,520 Speaker 5: under consideration, but it looks very much as though issues 102 00:06:41,520 --> 00:06:46,640 Speaker 5: of federalization will be considered as well, because it's really 103 00:06:46,680 --> 00:06:51,599 Speaker 5: impossible to consider one without considering the other. The administration, 104 00:06:52,640 --> 00:06:56,599 Speaker 5: in addition to everything else, rejects the claim that posse 105 00:06:56,760 --> 00:07:04,000 Speaker 5: comma tatis applies when the troops are deployed in their 106 00:07:04,760 --> 00:07:11,120 Speaker 5: protective capacity, namely engaged in protection for federal assets. They 107 00:07:11,200 --> 00:07:16,480 Speaker 5: also deny that it applies under twelve four h six, 108 00:07:16,520 --> 00:07:18,360 Speaker 5: and they say twelve four h six is like the 109 00:07:18,400 --> 00:07:23,640 Speaker 5: Insurrection Act. Under the Insurrection Act, is generally recognized that 110 00:07:23,760 --> 00:07:29,400 Speaker 5: there is an exception to prosecommatatis and that the president 111 00:07:29,680 --> 00:07:35,200 Speaker 5: is allowed to deploy federal troops in a law enforcement capacity, 112 00:07:35,480 --> 00:07:40,200 Speaker 5: but only because there is seemed to be a situation 113 00:07:40,360 --> 00:07:44,120 Speaker 5: that is so serious that in fact there's an full 114 00:07:44,160 --> 00:07:48,440 Speaker 5: blown insurrection and there is no way to gain control 115 00:07:48,600 --> 00:07:52,200 Speaker 5: over the region or that part of the country, whatever 116 00:07:52,320 --> 00:07:56,680 Speaker 5: is an issue without having federal troops engage in law 117 00:07:56,760 --> 00:07:57,920 Speaker 5: enforcement activities. 118 00:07:58,680 --> 00:08:01,760 Speaker 2: One of the first witnesses on the stand was a 119 00:08:01,960 --> 00:08:05,920 Speaker 2: longtime military leader, Major General Scott Sherman, who commanded the 120 00:08:05,920 --> 00:08:10,000 Speaker 2: Guard troops in La. So he testified that he'd never 121 00:08:10,080 --> 00:08:13,840 Speaker 2: heard the word rebellion used to describe the situation in 122 00:08:14,040 --> 00:08:20,000 Speaker 2: LA and also he expressed resistance at first when federal 123 00:08:20,040 --> 00:08:23,240 Speaker 2: immigration authorities wanted military support. 124 00:08:23,760 --> 00:08:26,400 Speaker 5: So his testimony was important for a couple of reasons. 125 00:08:26,440 --> 00:08:30,880 Speaker 5: The first reason is that he testified that he expressed 126 00:08:30,920 --> 00:08:35,960 Speaker 5: reservations and stronger than that, that he voiced opposition to 127 00:08:36,120 --> 00:08:40,880 Speaker 5: this operation, and that he was rebuked by a senior 128 00:08:40,920 --> 00:08:44,960 Speaker 5: Customs and Border Patrol official who questioned his loyalty to 129 00:08:45,080 --> 00:08:48,360 Speaker 5: the nation, which is very surprising. It's very important that 130 00:08:48,440 --> 00:08:53,240 Speaker 5: the military are able to express their concerns about the 131 00:08:53,280 --> 00:08:57,319 Speaker 5: boundaries of the operations that they're being asked to undertake, 132 00:08:57,760 --> 00:09:01,680 Speaker 5: and normally that would be given an awful lot of difference. 133 00:09:01,880 --> 00:09:04,520 Speaker 5: When you have a senior military leader who was saying, 134 00:09:05,120 --> 00:09:07,800 Speaker 5: this is not an operation that we should be undertaking. 135 00:09:07,880 --> 00:09:11,400 Speaker 5: It's not appropriate for the military. You would expect an 136 00:09:11,440 --> 00:09:15,720 Speaker 5: administration to be sensitive and respectful of that. But it 137 00:09:15,880 --> 00:09:20,480 Speaker 5: also suggests that there was a sort of pecking order 138 00:09:20,800 --> 00:09:23,960 Speaker 5: and that was a concern about this operation to begin with, 139 00:09:24,480 --> 00:09:27,760 Speaker 5: that customs and Border patrol were sort of calling the 140 00:09:27,960 --> 00:09:33,200 Speaker 5: shot and that the military was going to be placed 141 00:09:33,200 --> 00:09:38,400 Speaker 5: in a subordinate position to customs and border patrol. That's 142 00:09:38,480 --> 00:09:43,240 Speaker 5: problematic from the standpoint of fasecomatatas since the military is 143 00:09:43,440 --> 00:09:48,960 Speaker 5: not supposed to be subordinate to civilian law enforcement agents 144 00:09:48,960 --> 00:09:53,320 Speaker 5: because it sort of turns them into law enforcement agents. 145 00:09:53,520 --> 00:09:57,520 Speaker 5: So that's one reason this is problematic. Another reason his 146 00:09:57,880 --> 00:10:03,319 Speaker 5: testimony was important is that he talked about what troops 147 00:10:03,320 --> 00:10:05,600 Speaker 5: were allowed to do, what they were told they were 148 00:10:05,640 --> 00:10:07,640 Speaker 5: allowed to do, and what they were not allowed to do. 149 00:10:08,080 --> 00:10:13,680 Speaker 5: So though the administration has been very insistent that the 150 00:10:14,320 --> 00:10:19,160 Speaker 5: orders to troops did not violate Polsicoma tatis, his testimony 151 00:10:19,320 --> 00:10:26,520 Speaker 5: suggested that they were allowed to turn military force to 152 00:10:27,040 --> 00:10:34,240 Speaker 5: civilians if civilians were impeding federal operations such as ICE operations. Now, 153 00:10:34,440 --> 00:10:37,560 Speaker 5: that might be what you would expect if they're there 154 00:10:37,559 --> 00:10:41,679 Speaker 5: in their protective capacity, but it shows how tricky it 155 00:10:41,800 --> 00:10:44,480 Speaker 5: is to have troops out there and to expect that 156 00:10:44,520 --> 00:10:49,080 Speaker 5: they're not going to be involved in law enforcement activities, 157 00:10:49,720 --> 00:10:51,960 Speaker 5: because it's very hard to draw the boundary there. If 158 00:10:52,000 --> 00:10:55,559 Speaker 5: they're in a protective capacity, they could very well end 159 00:10:55,720 --> 00:10:59,480 Speaker 5: up having to engage in law enforcement activities, and typically 160 00:11:00,080 --> 00:11:03,320 Speaker 5: our troops are not trained for that. They don't know 161 00:11:03,360 --> 00:11:07,360 Speaker 5: how to conduct arrests, they don't necessarily know how to 162 00:11:07,960 --> 00:11:12,520 Speaker 5: intersect with civilians who were engaged in criminal activities. They 163 00:11:12,520 --> 00:11:15,080 Speaker 5: don't know how to preserve a crime scene. They're not 164 00:11:15,160 --> 00:11:19,520 Speaker 5: necessarily trained in that. And so though our National Guard 165 00:11:19,600 --> 00:11:23,200 Speaker 5: troops are excellent at what they do, crime control is 166 00:11:23,280 --> 00:11:26,040 Speaker 5: not their beat. And this is presumably one of the 167 00:11:26,080 --> 00:11:30,000 Speaker 5: reasons why General Sherman was concerned about this operation. 168 00:11:30,960 --> 00:11:34,880 Speaker 2: Another witness who's taken the Standofready is the Los Angeles 169 00:11:35,000 --> 00:11:38,800 Speaker 2: Field Office director for the Department of Homeland Security, and 170 00:11:38,880 --> 00:11:43,680 Speaker 2: he testified that before the deployment they received multiple reports 171 00:11:43,760 --> 00:11:47,720 Speaker 2: daily of attacks on his officers, but after we still 172 00:11:47,720 --> 00:11:52,840 Speaker 2: had officer assault situations, but they did reduce drastically. If 173 00:11:52,880 --> 00:11:56,000 Speaker 2: all they were doing was guarding the officers, there wouldn't 174 00:11:56,000 --> 00:11:58,640 Speaker 2: be a problem under posse comma tatis would there? 175 00:11:59,120 --> 00:12:03,280 Speaker 5: Well again, in theory no, but as soon as you're 176 00:12:03,400 --> 00:12:09,880 Speaker 5: guarding personnel, you could very easily stray into activity that 177 00:12:10,040 --> 00:12:15,520 Speaker 5: implicates passcomatatas. So again, what if there's an attack on 178 00:12:16,080 --> 00:12:22,120 Speaker 5: a federal officer and there's no one around but National 179 00:12:22,200 --> 00:12:27,439 Speaker 5: Guard troops to engage in the detention or make that arrest. 180 00:12:27,720 --> 00:12:31,000 Speaker 5: This is what happened in one incident involving a veteran 181 00:12:31,400 --> 00:12:35,640 Speaker 5: who was trying to enter the Bureau of Veterans' Affairs, 182 00:12:35,880 --> 00:12:40,320 Speaker 5: and the Marines detained him and he was detained for 183 00:12:41,320 --> 00:12:46,440 Speaker 5: two hours. Roughly. They mistook his intentions and they did 184 00:12:46,440 --> 00:12:48,920 Speaker 5: not understand what he was there for. It was really 185 00:12:49,160 --> 00:12:53,959 Speaker 5: a mistake, but because there were no LAPD present at 186 00:12:54,000 --> 00:12:57,040 Speaker 5: the time, they viewed it necessary to hold him and 187 00:12:57,080 --> 00:13:01,520 Speaker 5: detain him until law enforcement officer could show up. The 188 00:13:01,720 --> 00:13:05,440 Speaker 5: question is whether or not there was a violation of 189 00:13:05,480 --> 00:13:08,560 Speaker 5: Pussey coomatadas just in the detention itself. 190 00:13:09,000 --> 00:13:12,800 Speaker 2: Coming up next, the importance of the trial judge's decision 191 00:13:13,240 --> 00:13:17,959 Speaker 2: in the context of Trump's threats to exercise similar powers 192 00:13:18,000 --> 00:13:22,920 Speaker 2: in other cities. You're listening to Bloomberg this week. The 193 00:13:22,920 --> 00:13:27,840 Speaker 2: Trump administration and California are facing off in court for 194 00:13:27,920 --> 00:13:31,520 Speaker 2: a three day trial over President Trump's decision to deploy 195 00:13:31,600 --> 00:13:35,680 Speaker 2: the National Guard in Marines in Los Angeles. Trump sent 196 00:13:35,760 --> 00:13:40,000 Speaker 2: the troops to address protests against immigration arrests against the 197 00:13:40,000 --> 00:13:44,359 Speaker 2: wishes of Governor Gavin Newsom. I've been talking to Claire Finkelstein, 198 00:13:44,520 --> 00:13:48,040 Speaker 2: a professor of law at the University of Pennsylvania. Claire 199 00:13:48,080 --> 00:13:51,679 Speaker 2: the Governor said that because the National Guard was being 200 00:13:51,840 --> 00:13:55,880 Speaker 2: used in this capacity, they weren't available to do the 201 00:13:55,920 --> 00:14:00,160 Speaker 2: things they would normally do in California, for example, helping 202 00:14:00,400 --> 00:14:04,000 Speaker 2: with suppressing the wildfires. Will the judge be considering that 203 00:14:04,120 --> 00:14:04,920 Speaker 2: aspect of it. 204 00:14:05,480 --> 00:14:07,640 Speaker 5: I do think that's something that a judge could take 205 00:14:07,679 --> 00:14:10,800 Speaker 5: into account. But now we start to get into the 206 00:14:10,840 --> 00:14:16,680 Speaker 5: tricky territory of exercising judgments over where troops are best used, 207 00:14:16,840 --> 00:14:21,000 Speaker 5: and that's normally not really within the purview of a 208 00:14:21,080 --> 00:14:25,360 Speaker 5: judge to make those decisions in any way. But if 209 00:14:25,400 --> 00:14:29,280 Speaker 5: the judge here's testimony to the effect that, you know, 210 00:14:29,320 --> 00:14:33,040 Speaker 5: there really wasn't an emergency in Los Angeles, that really 211 00:14:33,120 --> 00:14:39,280 Speaker 5: wasn't necessary to have federal troops out there, which indeed 212 00:14:39,520 --> 00:14:42,440 Speaker 5: is supported by the fact that many of them were 213 00:14:42,600 --> 00:14:45,640 Speaker 5: just sort of standing around doing nothing and there were 214 00:14:45,800 --> 00:14:48,960 Speaker 5: needs that the state was not able to fill because 215 00:14:49,120 --> 00:14:53,560 Speaker 5: of the commandeering of National Guard troops, then I think 216 00:14:53,680 --> 00:14:56,119 Speaker 5: that that may weigh in the judge's calculation. 217 00:14:56,440 --> 00:14:59,960 Speaker 2: So the administration says the troops were there to escore 218 00:15:00,160 --> 00:15:04,680 Speaker 2: federal agents to protect federal personnel and property. They deployed 219 00:15:04,800 --> 00:15:09,440 Speaker 2: about five thousand California National Guard members and seven hundred 220 00:15:09,520 --> 00:15:13,120 Speaker 2: marines to Los Angeles. Do the numbers seem out of kilter? 221 00:15:13,680 --> 00:15:16,560 Speaker 5: They do seem out of kilter, And clearly it wasn't 222 00:15:16,680 --> 00:15:20,080 Speaker 5: necessary because most of the troops were not doing anything. 223 00:15:20,320 --> 00:15:24,440 Speaker 5: Some of the descriptions were sitting around with playing cards. 224 00:15:24,600 --> 00:15:28,960 Speaker 5: That's the ones who weren't even properly deployed. They were 225 00:15:29,000 --> 00:15:31,680 Speaker 5: just held in reserve. And then among those who were deployed, 226 00:15:31,680 --> 00:15:34,360 Speaker 5: it was really more of a show of force. For 227 00:15:34,600 --> 00:15:39,720 Speaker 5: those who were put into an active posture. Some of 228 00:15:39,760 --> 00:15:44,560 Speaker 5: the things that they did were very inappropriate, and of 229 00:15:44,600 --> 00:15:47,080 Speaker 5: course that was upon orders. It wasn't the fault of 230 00:15:47,440 --> 00:15:51,280 Speaker 5: those who engaged in those activities. But for example, there 231 00:15:51,360 --> 00:15:57,640 Speaker 5: was a park that was very aggressively visited by National 232 00:15:57,680 --> 00:16:02,640 Speaker 5: Guard that was a freak when play location for children 233 00:16:02,800 --> 00:16:07,040 Speaker 5: and children who were going off to summer camp on buses. 234 00:16:07,200 --> 00:16:11,560 Speaker 5: There was no criminal activity, there were no demonstrations going on, 235 00:16:11,680 --> 00:16:15,640 Speaker 5: there were no federal buildings, and so the idea that 236 00:16:16,000 --> 00:16:20,240 Speaker 5: National Guard were needed on horseback in that instance, to 237 00:16:20,280 --> 00:16:24,080 Speaker 5: go through the park is a very questionable one and 238 00:16:24,600 --> 00:16:26,720 Speaker 5: sort of makes you wonder what the purpose was the 239 00:16:26,760 --> 00:16:28,080 Speaker 5: deployment in the first place. 240 00:16:28,520 --> 00:16:31,600 Speaker 2: What kinds of things would the Trump administration have to 241 00:16:31,800 --> 00:16:34,600 Speaker 2: show in order to prevail at this trial. 242 00:16:35,240 --> 00:16:39,760 Speaker 5: There was certainly criminal wrongdoing in some of the demonstrations 243 00:16:39,800 --> 00:16:44,080 Speaker 5: that occurred early on, but what they would have to show, 244 00:16:44,160 --> 00:16:47,560 Speaker 5: it seems to me is that the California administration Los 245 00:16:47,600 --> 00:16:51,160 Speaker 5: Angeles was not able to handle that from the standpoint 246 00:16:51,160 --> 00:16:55,520 Speaker 5: of ordinary law enforcement. Question whether or not, even if 247 00:16:55,520 --> 00:16:59,040 Speaker 5: they could show that the fact that California itself was 248 00:16:59,080 --> 00:17:03,640 Speaker 5: not requested the presence of those troops was not saying, look, 249 00:17:03,640 --> 00:17:06,520 Speaker 5: we really need your help, as in the Rodney King situation. 250 00:17:07,040 --> 00:17:09,439 Speaker 5: That is a point of law for the judge to 251 00:17:09,480 --> 00:17:13,280 Speaker 5: decide whether or not it was even legal under the 252 00:17:13,320 --> 00:17:17,560 Speaker 5: authorities that the Trump administration used for them to federalize 253 00:17:17,560 --> 00:17:18,920 Speaker 5: the California National Guard. 254 00:17:20,320 --> 00:17:23,040 Speaker 2: There are only, I think a few hundred National Guards 255 00:17:23,080 --> 00:17:28,080 Speaker 2: still deployed in LA. What kind of a decision could 256 00:17:28,640 --> 00:17:32,639 Speaker 2: Judge Briar make? Could it be a broad decision with 257 00:17:32,960 --> 00:17:34,280 Speaker 2: prospective application? 258 00:17:36,280 --> 00:17:40,200 Speaker 5: He could say the National Guard is bound by posse 259 00:17:40,320 --> 00:17:45,000 Speaker 5: comitatas and here's what Posse Commatadas needs. It means they 260 00:17:45,119 --> 00:17:50,720 Speaker 5: can't do X, Y and z. So therefore it could 261 00:17:50,760 --> 00:17:55,800 Speaker 5: be a very important decision for setting the tone elsewhere 262 00:17:55,920 --> 00:17:59,840 Speaker 5: other places where pusse Comatadas applies. So it wouldn't strictly 263 00:17:59,880 --> 00:18:03,800 Speaker 5: be binding on other states. It is a very important 264 00:18:03,800 --> 00:18:08,560 Speaker 5: decision interpreting the Posse Commatatus Act, and there are not 265 00:18:08,720 --> 00:18:11,679 Speaker 5: a lot of decisions under the Posse Coommatatus Act, So 266 00:18:11,720 --> 00:18:15,200 Speaker 5: it would be very important to have a judge say, 267 00:18:15,560 --> 00:18:20,159 Speaker 5: here's what we understand the Posse Commatatis Act allows and 268 00:18:20,400 --> 00:18:23,440 Speaker 5: doesn't allow. I'll also say the mere fact that a 269 00:18:23,560 --> 00:18:26,919 Speaker 5: judge was willing to get in there and render a 270 00:18:27,040 --> 00:18:30,479 Speaker 5: decision on this issue, If indeed the judge is willing 271 00:18:30,520 --> 00:18:34,880 Speaker 5: to do, that would be very important because a lot 272 00:18:34,920 --> 00:18:38,520 Speaker 5: of the times you might find judges unwilling to address 273 00:18:38,560 --> 00:18:41,320 Speaker 5: the nitty gritty of such a question and say, you 274 00:18:41,359 --> 00:18:43,360 Speaker 5: know what, we're going to leave it to the administration 275 00:18:43,480 --> 00:18:47,280 Speaker 5: to exercise its judgments here. So here is a very 276 00:18:47,320 --> 00:18:50,960 Speaker 5: important national security matter in which a court is willing 277 00:18:51,280 --> 00:18:56,320 Speaker 5: to hold hearings, entertain witnesses, listen to evidence, to weigh 278 00:18:56,760 --> 00:19:00,240 Speaker 5: the actual meaning of possecommatatus and what the restrictions are 279 00:19:00,359 --> 00:19:05,480 Speaker 5: on an administration that is trying to federalize troops and 280 00:19:06,040 --> 00:19:10,960 Speaker 5: invoke other troops such as Marines, to engage in something 281 00:19:10,960 --> 00:19:14,280 Speaker 5: that comes at least very close to the law enforcement activities. 282 00:19:14,720 --> 00:19:18,000 Speaker 2: Do the same rules apply to the Marines as applied 283 00:19:18,040 --> 00:19:21,760 Speaker 2: to the National Guard as far as possicomatatis is concerned. 284 00:19:22,240 --> 00:19:26,520 Speaker 5: Yes, they do so all federal troops if the authorities 285 00:19:26,560 --> 00:19:30,200 Speaker 5: are the same. Now, if the Trump administration was using 286 00:19:30,240 --> 00:19:34,159 Speaker 5: the Insurrection Act, that would be a different matter. But 287 00:19:34,240 --> 00:19:37,920 Speaker 5: given that they decided to proceed with ten USC. Twelve 288 00:19:38,000 --> 00:19:42,439 Speaker 5: four h six for the federalization and for the Marines, 289 00:19:42,480 --> 00:19:46,560 Speaker 5: it's the protective power, I will say that the case 290 00:19:47,280 --> 00:19:52,440 Speaker 5: for suspending posse coomatatis is even weaker with the Marines 291 00:19:52,600 --> 00:19:58,080 Speaker 5: because the protective power is an implicit not an explicit power, 292 00:19:58,400 --> 00:20:05,320 Speaker 5: and any exception to post commatadis clearly has to be explicit, 293 00:20:05,600 --> 00:20:12,520 Speaker 5: not implicit. So Congress has to have explicitly exempted the 294 00:20:12,560 --> 00:20:17,159 Speaker 5: federal authority in question from possecommatadis in order for that 295 00:20:17,240 --> 00:20:20,800 Speaker 5: exception to apply. And in the case of the Marine, 296 00:20:20,920 --> 00:20:25,399 Speaker 5: since they were deployed primarily under the protective power. The 297 00:20:25,440 --> 00:20:29,800 Speaker 5: authority for the deployment was implicit, not explicit. 298 00:20:29,680 --> 00:20:33,639 Speaker 2: And is Judge Bryer's decision going to be even more 299 00:20:33,800 --> 00:20:40,399 Speaker 2: important because President Trump is threatening to deploy troops similarly 300 00:20:40,760 --> 00:20:43,879 Speaker 2: in other cities that he says are out of control 301 00:20:43,960 --> 00:20:48,400 Speaker 2: with crime, and because of what's happening in DC right now. 302 00:20:48,720 --> 00:20:53,399 Speaker 5: Well, with DC it is potentially a different story. So 303 00:20:53,560 --> 00:20:59,840 Speaker 5: the Justice Department has argued that passcomatadis doesn't apply when 304 00:21:00,080 --> 00:21:04,360 Speaker 5: the President invokes the National Guard in DC because the 305 00:21:04,440 --> 00:21:07,480 Speaker 5: President is sort of in the position of the Adjutant 306 00:21:07,560 --> 00:21:12,080 Speaker 5: General with regard to DC troops. I would myself question that. 307 00:21:12,480 --> 00:21:15,600 Speaker 5: I think there are reasons why pascomatatis may still apply, 308 00:21:16,280 --> 00:21:18,639 Speaker 5: and there are many reasons to think that it's not 309 00:21:18,760 --> 00:21:25,080 Speaker 5: appropriate for troops to be involved in law enforcement, even 310 00:21:25,200 --> 00:21:29,040 Speaker 5: in DC, but the legalities will be subtly different, and 311 00:21:29,119 --> 00:21:31,800 Speaker 5: so they're going to be slightly different arguments that apply. 312 00:21:32,320 --> 00:21:34,840 Speaker 5: In addition, in DC, we have the issue of takeover 313 00:21:34,960 --> 00:21:40,960 Speaker 5: of the DC Police, and that's under the Home Rule 314 00:21:41,680 --> 00:21:47,680 Speaker 5: legislation that is explicitly provided for under that legislation, and 315 00:21:48,200 --> 00:21:52,560 Speaker 5: for thirty days, the president does have the ability under 316 00:21:52,600 --> 00:21:57,360 Speaker 5: that legislation to take over the DC police in an emergency. 317 00:21:58,320 --> 00:22:03,320 Speaker 2: President Trump was also talking about Chicago and New York. 318 00:22:03,359 --> 00:22:05,600 Speaker 2: He's talked about New York before. 319 00:22:06,040 --> 00:22:09,720 Speaker 5: So that would be back to the California situation. If 320 00:22:09,760 --> 00:22:14,520 Speaker 5: President Trump tries, to, for example, take over the New 321 00:22:14,640 --> 00:22:19,000 Speaker 5: York Police or the Chicago Police there, he will not 322 00:22:19,280 --> 00:22:22,280 Speaker 5: have the home rule advantage that he has in DC, 323 00:22:22,480 --> 00:22:25,480 Speaker 5: and he will not find himself in a very good 324 00:22:25,560 --> 00:22:29,080 Speaker 5: legal posture there. He really doesn't have any basis and 325 00:22:29,119 --> 00:22:32,560 Speaker 5: the control over the police is strictly reserved to the 326 00:22:32,720 --> 00:22:37,280 Speaker 5: states under the Tenth Amendment. That's core Tenth Amendment doctrine. 327 00:22:37,440 --> 00:22:41,760 Speaker 5: So it'd be very surprising if he would try to 328 00:22:41,880 --> 00:22:46,960 Speaker 5: take over the police in a major city other than DC. 329 00:22:48,040 --> 00:22:51,520 Speaker 5: I think that's something that any federal judge would reject 330 00:22:51,680 --> 00:22:56,520 Speaker 5: very quickly. Now, as far as federalization of the National 331 00:22:56,560 --> 00:22:59,760 Speaker 5: Guard in any other states, he will be in a 332 00:22:59,760 --> 00:23:04,040 Speaker 5: state similar posture to California, which is why this California 333 00:23:04,320 --> 00:23:09,520 Speaker 5: trial is so important. It will teach judges what Judge 334 00:23:09,520 --> 00:23:12,119 Speaker 5: Briar is going through right now, and the evidence that 335 00:23:12,200 --> 00:23:16,240 Speaker 5: Judge Briar is fifting through will be extremely instructive for 336 00:23:16,359 --> 00:23:22,679 Speaker 5: federal judges in other jurisdictions as they inevitably wake possecommatadas 337 00:23:22,760 --> 00:23:25,720 Speaker 5: issues in potentially the state of New York or the 338 00:23:25,720 --> 00:23:29,160 Speaker 5: state of Pennsylvania or the state of Illinois. I think 339 00:23:29,200 --> 00:23:32,720 Speaker 5: we're going to find a situation replicated, and clarity about 340 00:23:32,760 --> 00:23:36,520 Speaker 5: the boundaries set by posscomatadis and what federal troops are 341 00:23:36,520 --> 00:23:39,840 Speaker 5: permitted to do and not do will be extremely important 342 00:23:40,040 --> 00:23:41,200 Speaker 5: in the coming weeks. 343 00:23:42,240 --> 00:23:45,879 Speaker 2: Has the Supreme Court ruled in this area. 344 00:23:46,080 --> 00:23:50,760 Speaker 5: While there's no Supreme Court decision on possecommatadis, there's a 345 00:23:50,880 --> 00:23:55,159 Speaker 5: long line of Supreme Court decisions on related themes that 346 00:23:55,240 --> 00:24:01,679 Speaker 5: I think have implications for interpreting possecomatatas. For example, the 347 00:24:01,840 --> 00:24:06,640 Speaker 5: presence of troops in and around demonstrations may put a 348 00:24:06,760 --> 00:24:12,199 Speaker 5: chilling effect on the ability to gather and assemble to 349 00:24:12,320 --> 00:24:15,960 Speaker 5: protest the government. Now that's a core First Amendment right, 350 00:24:16,359 --> 00:24:21,119 Speaker 5: and so what you find is that does tailing between 351 00:24:21,680 --> 00:24:25,520 Speaker 5: the requirements of the Possecommatatis Act that says federal troops 352 00:24:25,560 --> 00:24:28,920 Speaker 5: can't engage in law enforcements and the requirements of First 353 00:24:28,960 --> 00:24:34,120 Speaker 5: Amendment doctrines that say people should be able to protest 354 00:24:34,160 --> 00:24:38,720 Speaker 5: the government express their views freely assembled in the streets. 355 00:24:38,960 --> 00:24:43,359 Speaker 5: So if troops are being used to chill free expression, 356 00:24:44,000 --> 00:24:48,959 Speaker 5: that would be a violation potentially both of possecommatatis if 357 00:24:49,000 --> 00:24:52,320 Speaker 5: they're engaging in law enforcement, and of the First Amendment. 358 00:24:52,800 --> 00:24:56,520 Speaker 5: Or take Fourth Amendment doctrine for example, there's lots and 359 00:24:56,560 --> 00:25:00,159 Speaker 5: lots of Supreme Court decisions on Fourth Amendment doctrine, and 360 00:25:00,359 --> 00:25:05,960 Speaker 5: we know that there were Fourth Amendment issues implicated in 361 00:25:06,280 --> 00:25:10,719 Speaker 5: the holding and detention of the veteran who was just 362 00:25:10,720 --> 00:25:15,080 Speaker 5: seeking to go into the Bureau of Veterans' Affairs, who 363 00:25:15,160 --> 00:25:18,320 Speaker 5: was held by the Marine. That is a core Fourth 364 00:25:18,320 --> 00:25:22,520 Speaker 5: Amendment issue. If federal troops are not in a position 365 00:25:22,760 --> 00:25:27,080 Speaker 5: to meet Fourth Amendment doctrines, are not in a position 366 00:25:27,160 --> 00:25:30,040 Speaker 5: to read people their miranda rights, are not in a 367 00:25:30,080 --> 00:25:34,679 Speaker 5: position to follow due process in engaging in detentions and 368 00:25:34,720 --> 00:25:38,960 Speaker 5: potentially arrests, then they would be constrained in what they 369 00:25:39,040 --> 00:25:43,840 Speaker 5: could do acting in a law enforcement capacity by the Constitution, 370 00:25:44,240 --> 00:25:47,719 Speaker 5: not just by passcomatadis. So I think there is a 371 00:25:47,720 --> 00:25:53,400 Speaker 5: lot of constitutional doctrine in and around postcommatadis that has 372 00:25:53,440 --> 00:25:55,639 Speaker 5: implications in this area. 373 00:25:56,400 --> 00:26:00,480 Speaker 2: I'm guessing that Judge Bryer's decision will be a Lene, 374 00:26:00,920 --> 00:26:04,640 Speaker 2: thanks so much for joining me. Claire. That's Claire Finkelstein, 375 00:26:04,840 --> 00:26:09,120 Speaker 2: a professor of law at the University of Pennsylvania. Coming up, 376 00:26:09,280 --> 00:26:11,480 Speaker 2: we'll take a look at the Big Beautiful Bill. This 377 00:26:11,600 --> 00:26:15,439 Speaker 2: is Bloomberg. Senate Democrats fanned out to their states this 378 00:26:15,680 --> 00:26:19,640 Speaker 2: month to host Town Hall's arm with attack lines against 379 00:26:19,720 --> 00:26:24,080 Speaker 2: President Donald Trump's signature legislative achievement, the so called Big 380 00:26:24,119 --> 00:26:28,600 Speaker 2: Beautiful Bill. Democrats are trying to highlight the act's impact 381 00:26:28,680 --> 00:26:32,240 Speaker 2: on voters, saying it will cut medicaid, benefit the rich, 382 00:26:32,320 --> 00:26:36,160 Speaker 2: and make middle class life more expensive. One thing they 383 00:26:36,200 --> 00:26:40,040 Speaker 2: haven't argued in all the months the Republicans spent laboring 384 00:26:40,119 --> 00:26:43,720 Speaker 2: to pass the massive tax and spending law is that 385 00:26:43,800 --> 00:26:47,040 Speaker 2: there's a section of the bill that violates the Constitution. 386 00:26:47,920 --> 00:26:51,720 Speaker 2: My guest is David Souper, a professor at Georgetown Law, 387 00:26:51,920 --> 00:26:56,040 Speaker 2: who's written about this in the Balkanization Blog. It's entitled 388 00:26:56,080 --> 00:27:01,080 Speaker 2: some casual Unconstitutionality. David tell us about this section. 389 00:27:00,800 --> 00:27:01,240 Speaker 5: In the law. 390 00:27:02,800 --> 00:27:07,000 Speaker 6: Section twenty zero one, one of the President's One Big 391 00:27:07,040 --> 00:27:13,040 Speaker 6: Beautiful Bill Act, funds the army and other military forces 392 00:27:13,119 --> 00:27:18,720 Speaker 6: intervening against immigration for more than four years. The Constitution 393 00:27:19,080 --> 00:27:23,880 Speaker 6: unfortunately limits appropriations for the army to know more than 394 00:27:23,920 --> 00:27:24,640 Speaker 6: two years. 395 00:27:25,040 --> 00:27:27,120 Speaker 2: So how was this missed? 396 00:27:27,800 --> 00:27:31,320 Speaker 6: I don't know. The bill was drafted in a very 397 00:27:31,359 --> 00:27:36,879 Speaker 6: secretive and partisan manner. Very few people were involved. Ordinarily, 398 00:27:37,000 --> 00:27:41,400 Speaker 6: the military is funded through the appropriations process each year, 399 00:27:41,920 --> 00:27:45,560 Speaker 6: so this doesn't become a problem. But here they gave 400 00:27:46,119 --> 00:27:52,520 Speaker 6: an ongoing support of funds separate from appropriations to the army. 401 00:27:53,119 --> 00:27:56,879 Speaker 6: And I'm guessing that the committee that handled that just 402 00:27:56,920 --> 00:28:00,240 Speaker 6: doesn't understand that part of the Constitution tell us about. 403 00:28:00,000 --> 00:28:02,760 Speaker 2: But the principles of federal appropriations law. 404 00:28:03,119 --> 00:28:10,080 Speaker 6: Certainly, the Government Accountability Office has been assigned responsibility for 405 00:28:10,560 --> 00:28:16,000 Speaker 6: overseeing appropriation's law by Congress. They have a multi volume 406 00:28:16,440 --> 00:28:21,280 Speaker 6: manual out explaining all the principles of appropriation's law. And 407 00:28:21,400 --> 00:28:26,760 Speaker 6: they have concluded many years ago that while it's okay 408 00:28:26,800 --> 00:28:31,800 Speaker 6: to have a multi year appropriation to buy something for 409 00:28:32,040 --> 00:28:35,679 Speaker 6: the military a tank or an airplane or something that 410 00:28:35,800 --> 00:28:39,600 Speaker 6: may not be built within two years, that for actually 411 00:28:40,120 --> 00:28:46,320 Speaker 6: funding the activities, operations salaries of the army, that that 412 00:28:46,480 --> 00:28:48,479 Speaker 6: may not extend beyond two years. 413 00:28:49,280 --> 00:28:52,760 Speaker 2: What did the founders make this distinction as far as 414 00:28:52,800 --> 00:28:54,320 Speaker 2: the military is concerned. 415 00:28:54,640 --> 00:29:00,200 Speaker 6: The Founders saw a military as being one one of 416 00:29:00,200 --> 00:29:04,720 Speaker 6: the biggest threats to freedom. They talked a great deal 417 00:29:05,000 --> 00:29:10,280 Speaker 6: about former republics that had been destroyed by their military, 418 00:29:10,360 --> 00:29:15,000 Speaker 6: most prominently Rome, but others as well, and one of 419 00:29:15,040 --> 00:29:20,240 Speaker 6: their greatest concerns is that could happen here. They preferred 420 00:29:20,280 --> 00:29:24,360 Speaker 6: that we not have a permanent peacetime army. We've obviously 421 00:29:24,440 --> 00:29:27,760 Speaker 6: rejected that advice a long time ago, but to make 422 00:29:27,840 --> 00:29:31,840 Speaker 6: sure that the army doesn't become independent of the people's 423 00:29:31,960 --> 00:29:36,800 Speaker 6: representatives in Congress, they made sure that all money had 424 00:29:36,920 --> 00:29:41,719 Speaker 6: to be reappropriated at least every other year, so that 425 00:29:42,200 --> 00:29:46,360 Speaker 6: if the army oversteps its bounds at the president's behest, 426 00:29:47,120 --> 00:29:50,880 Speaker 6: that Congress can rein it. In ignoring that principle in 427 00:29:50,960 --> 00:29:54,200 Speaker 6: giving the army a long term source of funds is 428 00:29:54,240 --> 00:29:58,720 Speaker 6: not just unconstitutional, but it rejects that basic warning about 429 00:29:58,760 --> 00:29:59,600 Speaker 6: civil liberties. 430 00:30:00,080 --> 00:30:03,040 Speaker 2: Has this happened before and has it been thought over? 431 00:30:03,880 --> 00:30:10,680 Speaker 6: This is a relatively novel thing. Ordinarily, defense appropriations are 432 00:30:10,680 --> 00:30:14,520 Speaker 6: handled every year in the Annual Appropriations Bill, and it 433 00:30:14,560 --> 00:30:19,440 Speaker 6: hasn't been thought of. But this is giving a permanent law, 434 00:30:19,760 --> 00:30:22,640 Speaker 6: in this case, one that lasts for over four years 435 00:30:22,800 --> 00:30:25,520 Speaker 6: to fund the army in the same way that permanent 436 00:30:25,600 --> 00:30:29,560 Speaker 6: law funds social Security or Medicare. We don't usually think 437 00:30:29,680 --> 00:30:33,440 Speaker 6: of the army as being like social Security and Medicare, 438 00:30:33,680 --> 00:30:37,480 Speaker 6: but in the law this summer, President Trump and Congressional 439 00:30:37,520 --> 00:30:40,240 Speaker 6: Republicans decided to put it on that same level. 440 00:30:40,800 --> 00:30:43,200 Speaker 2: Has the Supreme Court ruled in this area. 441 00:30:43,880 --> 00:30:49,040 Speaker 6: It hasn't ruled squarely on this because it's not clear 442 00:30:49,160 --> 00:30:53,160 Speaker 6: who would have the standing to bring a lawsuit. And 443 00:30:53,400 --> 00:30:56,960 Speaker 6: I hope we have more respect for our constitution than 444 00:30:57,000 --> 00:31:00,080 Speaker 6: to think it only has to be followed when someone 445 00:31:00,240 --> 00:31:02,880 Speaker 6: is at risk of being sued. I hope we think 446 00:31:02,920 --> 00:31:07,760 Speaker 6: following the constitution is a generic value. But this does 447 00:31:07,840 --> 00:31:08,720 Speaker 6: raise questions. 448 00:31:08,920 --> 00:31:11,040 Speaker 2: Let's just say they saw this and said, oh, we 449 00:31:11,120 --> 00:31:15,040 Speaker 2: have to cure this. Could they just sever that part? 450 00:31:15,480 --> 00:31:19,720 Speaker 6: The Supreme Court has said that you several pieces from 451 00:31:19,720 --> 00:31:23,520 Speaker 6: a bill. If it believes that Congress would have wanted 452 00:31:23,520 --> 00:31:27,120 Speaker 6: the rest of the bill enacted without the unconstitutional part. 453 00:31:27,520 --> 00:31:30,520 Speaker 6: My guess is the Supreme Court would say that Congress 454 00:31:30,560 --> 00:31:34,480 Speaker 6: would prefer the rest of this bill without section two 455 00:31:34,640 --> 00:31:38,320 Speaker 6: zero zero one one and would cut it out. But 456 00:31:38,800 --> 00:31:42,360 Speaker 6: we don't know, and at present, it's not clear that 457 00:31:42,400 --> 00:31:44,280 Speaker 6: this is going to get to the Supreme Court. 458 00:31:44,480 --> 00:31:46,600 Speaker 2: So you're right, how lovely it would be if Justice 459 00:31:46,640 --> 00:31:50,240 Speaker 2: as Thomas and Gorsuch led the Court to declare Section 460 00:31:50,360 --> 00:31:54,600 Speaker 2: twenty zero one one unconstitutional and then remind Congress the 461 00:31:54,680 --> 00:31:58,320 Speaker 2: Constitution doesn't empower the Court to blue pencil duly enacted 462 00:31:58,360 --> 00:32:02,880 Speaker 2: statutes containing unco constitutional provisions. Why did you choose Justices 463 00:32:03,000 --> 00:32:05,200 Speaker 2: Thomas and gorsicch. 464 00:32:04,600 --> 00:32:08,360 Speaker 6: Well, just as Thomas and Gorsich have been leading an 465 00:32:08,400 --> 00:32:12,360 Speaker 6: effort on the Court to say that the Court should 466 00:32:12,440 --> 00:32:18,280 Speaker 6: not sever unconstitutional provisions of bills, that if Congress passes 467 00:32:18,400 --> 00:32:23,080 Speaker 6: legislation that is unconstitutional, the Court should simply say so 468 00:32:23,640 --> 00:32:27,120 Speaker 6: and not say, well, other parts of it are still enforceable. 469 00:32:27,480 --> 00:32:30,880 Speaker 6: They believe that the judicial function is simply to strike 470 00:32:30,920 --> 00:32:34,040 Speaker 6: these things down. And this is an area where if 471 00:32:34,080 --> 00:32:37,600 Speaker 6: they were to strike it down, the entire one Big 472 00:32:37,640 --> 00:32:42,680 Speaker 6: Beautiful Bill Act would be deemed unconstitutional and unenforceable. I 473 00:32:42,720 --> 00:32:46,600 Speaker 6: don't doubt that Congress would then repass it without section 474 00:32:46,760 --> 00:32:50,760 Speaker 6: two zero zero one one. But Congress should be held 475 00:32:51,080 --> 00:32:53,760 Speaker 6: to passing only constitutional laws. 476 00:32:54,200 --> 00:32:58,760 Speaker 2: So Article one, Section eight, clause twelve, is this something 477 00:32:58,800 --> 00:33:02,400 Speaker 2: that senators and representatives should be aware of. 478 00:33:02,880 --> 00:33:07,760 Speaker 6: It's not hidden the Constitution itself is very brief, only 479 00:33:07,800 --> 00:33:11,360 Speaker 6: a little over four thousand words. Every member of Congress 480 00:33:11,360 --> 00:33:13,840 Speaker 6: has taken an oath to obey it. I hope they're 481 00:33:13,840 --> 00:33:16,400 Speaker 6: not taking an oath to obey a document they haven't 482 00:33:16,440 --> 00:33:19,560 Speaker 6: read all the way through, and the terms of it 483 00:33:19,600 --> 00:33:21,920 Speaker 6: are very clear. We all know what the army is, 484 00:33:21,960 --> 00:33:23,840 Speaker 6: we all know what two years are, we all know 485 00:33:23,880 --> 00:33:27,440 Speaker 6: what an appropriation is, so there's not much ambiguity here. 486 00:33:27,480 --> 00:33:30,640 Speaker 6: There certainly are a number of things in this law 487 00:33:30,680 --> 00:33:35,200 Speaker 6: and elsewhere that people could reasonably argue are unconstitutional, and 488 00:33:35,360 --> 00:33:38,760 Speaker 6: others might disagree, but this one could not be clearer. 489 00:33:39,360 --> 00:33:42,920 Speaker 2: But most likely nothing is going to be done about it. 490 00:33:43,360 --> 00:33:47,480 Speaker 6: I'm afraid not. I would hope that Congress would set 491 00:33:47,480 --> 00:33:51,000 Speaker 6: an example for the country as the series is the Constitution. 492 00:33:51,760 --> 00:33:55,719 Speaker 6: Repeal section two zero one one past something else if 493 00:33:55,760 --> 00:33:59,239 Speaker 6: they want to that complies with the Constitution. But I 494 00:33:59,280 --> 00:34:02,440 Speaker 6: think they're going to be content to let this unconciucial 495 00:34:02,520 --> 00:34:05,120 Speaker 6: loss day on the books. And that's a tragedy. 496 00:34:05,560 --> 00:34:08,719 Speaker 2: It would be surprising if this got any traction, but 497 00:34:09,160 --> 00:34:12,120 Speaker 2: we'll keep an eye out. Thanks so much, David. That's 498 00:34:12,120 --> 00:34:16,239 Speaker 2: Professor David super of Georgetown Law and that's it for 499 00:34:16,239 --> 00:34:18,880 Speaker 2: this edition of The Bloomberg Law Show. Remember you can 500 00:34:18,920 --> 00:34:22,160 Speaker 2: always get the latest legal news on our Bloomberg Law Podcast. 501 00:34:22,440 --> 00:34:25,440 Speaker 2: You can find them on Apple Podcasts, Spotify, and at 502 00:34:25,600 --> 00:34:30,640 Speaker 2: www dot bloomberg dot com slash podcast Slash Law, And 503 00:34:30,719 --> 00:34:33,799 Speaker 2: remember to tune into The Bloomberg Law Show every weeknight 504 00:34:33,880 --> 00:34:37,319 Speaker 2: at ten pm Wall Street Time. I'm June Grosso and 505 00:34:37,360 --> 00:34:38,840 Speaker 2: you're listening to Bloomberg