Latest / Bloomberg Law / Weekend Law: Google, Wartime Act & Chicago Bracing

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Weekend Law: Google, Wartime Act & Chicago Bracing · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:09
Speaker 2: In the biggest tech antitrust case in three decades, Google
0:14
Speaker 2: avoided a breakup. A DC federal judge ruled against the
0:18
Speaker 2: government's most severe proposals for remedies, like a forced sale
0:23
Speaker 2: of its Chrome browser. Judge Ahme Meta had already found
0:27
Speaker 2: in August of last year that Google illegally dominated the
0:32
Speaker 2: search market by paying more than twenty five billion dollars
0:35
Speaker 2: to Apple and other companies to make its search engine
0:39
Speaker 2: the default on smartphones and web browsers. This ruling was
0:43
Speaker 2: all about the fix, and Google will have to make
0:46
Speaker 2: some concessions, including sharing online search data with rivals and
0:52
Speaker 2: ending exclusive contracts for distribution. My guest is anti trust
0:56
Speaker 2: expert Harry First, a professor at NYU lost Harry on
1:01
Speaker 2: the Department of Justice website. It says Department of Justice
1:05
Speaker 2: wins significant remedies against Google, but this falls far short
1:11
Speaker 2: of the severe remedies that the government wanted. How much
1:16
Speaker 2: of a setback is it for the government in its
1:18
Speaker 2: attempt to curb the power of the biggest tech companies.
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Speaker 3: Well, you know, people often talk about things as being
1:26
Speaker 3: a win win and that's a good thing. So I
1:29
Speaker 3: think that the judge's decision is a win win, but
1:33
Speaker 3: not a good thing. I view it as win in
1:37
Speaker 3: sort of eight point type on the government side and
1:41
Speaker 3: win in sort of sixteen point type on Google side.
1:45
Speaker 3: So here's what I mean. It's not a significant victory
1:48
Speaker 3: for the Justice Department. They did win some things, and
1:52
Speaker 3: you know, maybe that will help bring some competition into search.
1:56
Speaker 3: But I think Google won a lot by not lose
2:00
Speaker 3: using very much. They get to keep Chrome. A lot
2:03
Speaker 3: of the remedies that the department asked for and got
2:07
Speaker 3: even were cut down, circumscribed, diminished. And you know, whether
2:14
Speaker 3: what the judge did will end up changing the search business,
2:19
Speaker 3: I doubt but who knows. But we've now passed the
2:23
Speaker 3: point where the question will be will we get competition?
2:27
Speaker 3: And the question will just be is Google complying with
2:31
Speaker 3: the decree. Of course, all of that comes after a
2:35
Speaker 3: round of appeals, so there's much more to this, But
2:39
Speaker 3: in terms of, you know, the overall feeling, I think it's,
2:43
Speaker 3: you know, from a public point of view, a disappointment.
2:46
Speaker 2: So the big headline was zoeas will Google be forced
2:50
Speaker 2: to sell Chrome? So Google doesn't have to do that.
2:54
Speaker 2: Why did Judge Meta decide not to make Google divest Chrome.
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Speaker 4: So this is a.
3:00
Speaker 3: Point that pervades Judge Meta's decision rightly in a legal sense,
3:05
Speaker 3: but I think not so correct from a policy point
3:09
Speaker 3: of view and really where the law ought to be.
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Speaker 3: So this is in many ways a very conservative opinion.
3:15
Speaker 3: It's the judge expressing what judges often express is that
3:20
Speaker 3: they understand the limits of who they are, what the
3:25
Speaker 3: institution can do, and what they want to do on
3:28
Speaker 3: an ongoing basis. So they're conservative about this. And here
3:34
Speaker 3: the government plaintiffs are asking them to do some pretty
3:37
Speaker 3: strong restructuring of one of the superstar firms in the
3:42
Speaker 3: United States. So you've got to be a little modest.
3:46
Speaker 4: Now.
3:47
Speaker 3: The judge backs up his modesty with a lot of
3:50
Speaker 3: quotations from the Court of Appeals and recently from the
3:55
Speaker 3: Supreme Court in a different anti trust case opinion written
3:58
Speaker 3: by Justice Gorsuch, which councils, let's be careful a little bit.
4:03
Speaker 3: So the ass that Chrome be divested. Structural relief is
4:08
Speaker 3: something that the DC Circuit itself. Remember, Judge Meta is
4:12
Speaker 3: a district court judge overseen by a Court of Appeals
4:15
Speaker 3: from the DC Circuit, so he is required to follow
4:20
Speaker 3: the law from that circuit. The law from that circuit
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Speaker 3: on remedies is actually pretty conservative and cautious, and that
4:30
Speaker 3: stems from actually the Microsoft case, which is much the
4:34
Speaker 3: template for the complaints that the government filed and for
4:37
Speaker 3: the government's theories. So you know, they said, well, when
4:41
Speaker 3: it comes to structural relief, restructuring reorganizing a company, you
4:45
Speaker 3: really need some strong proof before you do that. You
4:48
Speaker 3: need to watch out. And so he took those admonitions
4:52
Speaker 3: to heart and just didn't find enough to overcome that
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Speaker 3: sort of a presumption that you know, you don't do
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Speaker 3: this unless you really have to do it for effective relief.
5:05
Speaker 3: And this then goes to the second part. Maybe the
5:08
Speaker 3: government didn't make an effective enough case for divesting Chrome
5:12
Speaker 3: and maybe made it seem too easy, so stuck with
5:16
Speaker 3: all of that, he backed away from it.
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Speaker 2: How much did AI play into Judgmenta's decision, So I.
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Speaker 3: Think his decision is all about AI, frankly, and I
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Speaker 3: think that he's betting and many in the industry by
5:33
Speaker 3: just simply betting that AI is going to replace Search
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Speaker 3: as we know it with something else that's not search
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Speaker 3: as we know it, or maybe as you and I
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Speaker 3: know it, but just simply getting information and that Google Search,
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Speaker 3: that product, no matter what he does in this opinion,
5:52
Speaker 3: is going to be eclipsed by some AI product. And
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Speaker 3: I think that he've views generates of AI as coming
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Speaker 3: to the rescue of competition.
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Speaker 2: Some say it's already eroding Google's dominance in search.
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Speaker 3: Yeah, the data seemed to show he he mentions this
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Speaker 3: in his opinion that searches on Safari have decreased. People
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Speaker 3: seem to be going directly to you know, Chat, GPT
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Speaker 3: or Perplexity or some of these other AI assistant things
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Speaker 3: and just getting information that way. This is the destructive
6:29
Speaker 3: force of innovation, as the economist Joseph Schumpeter talked about
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Speaker 3: many years ago. So maybe he's right, and you know,
6:38
Speaker 3: that may mean that sort of didn't matter what he
6:40
Speaker 3: did so long as AI lives. But of course the
6:44
Speaker 3: worry is that we'll just replicate the current structure the
6:49
Speaker 3: tech platform, superstar firms will just control AI and we
6:54
Speaker 3: won't have moved to new competition, but we'll have a
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Speaker 3: different product.
6:59
Speaker 1: He's ordering Goo.
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Speaker 2: Google to share data with rivals to open up competition
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Speaker 2: in online search. Google has to share some of the
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Speaker 2: data with competitors, but not some of its most important data.
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Speaker 3: Would you say, well, here again, it's hard to say
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Speaker 3: exactly what our important data. You could say all of
7:18
Speaker 3: the data are important, the more the more. But you know,
7:22
Speaker 3: this particularly involves the search index, which is something that
7:27
Speaker 3: Google has done really well, and the government in some
7:31
Speaker 3: ways didn't ask for as much as it could, which
7:33
Speaker 3: it would have been a license to the index itself.
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Speaker 3: What they wanted is some help with the data so
7:39
Speaker 3: competitors could build an index. And even with that, the
7:43
Speaker 3: judge cut down the kinds of data that will be
7:46
Speaker 3: required to be disclosed, and to me, even more importantly,
7:52
Speaker 3: the timing of the disclosure. So for some of these
7:56
Speaker 3: data it's a one time snapshot, which strikes me as
8:00
Speaker 3: you know, the judge calls that a kickstart for competition. Yeah,
8:04
Speaker 3: like a kick in the rear. I don't know, you know,
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Speaker 3: a one time thing for some very important parts of
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Speaker 3: some basic information to help them put together a better
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Speaker 3: index of the web. There's an awful lot of information
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Speaker 3: out there and indexing it is critical for an effective
8:20
Speaker 3: search engine. And you know, when it comes to sort
8:24
Speaker 3: of this user side data to click and query. You know,
8:28
Speaker 3: what we do when we get free search is create
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Speaker 3: data that's worth a heck of a lot of money
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Speaker 3: for which we don't get paid, we being you and
8:38
Speaker 3: me and all the other users. But these data here. Again,
8:43
Speaker 3: the judge cuts down the request, gives some amount of
8:46
Speaker 3: the request, and then sort of puts on some limits
8:51
Speaker 3: yet to be decided about how often this will be
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Speaker 3: disclosed more than once. Now it's not just a snapshot,
9:00
Speaker 3: but the cap yet to be determined by this technical
9:03
Speaker 3: committee that the decree is going to set up. So
9:07
Speaker 3: I don't know, it's hard for me to say exactly,
9:09
Speaker 3: you know, will this enable competitors to really get an
9:13
Speaker 3: effective competing search engine or will it not quite be enough?
9:17
Speaker 3: And in some ways this goes to what I've always
9:20
Speaker 3: viewed as the underlying problem with these decrees is a
9:24
Speaker 3: judge trying to say what competitors need to succeed, instead
9:29
Speaker 3: of a judge saying, don't ask me, just come back,
9:32
Speaker 3: you know, Google, Just come back and let me know
9:36
Speaker 3: whether there's competition or not. And if there isn't, we're
9:39
Speaker 3: going to have to do something more about it, you know,
9:41
Speaker 3: for judges or even the Justice Department which apparently at
9:45
Speaker 3: least is still made up of some lawyers. You know,
9:47
Speaker 3: trying to design these remedies is tough, and you can
9:51
Speaker 3: feel it with what the judge is written in this opinion.
9:54
Speaker 3: It's hard and trying to figure out what the effect
9:58
Speaker 3: is going to be. He said at the beginning. You know,
10:01
Speaker 3: I don't have a crystal ball. Other judges have used
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Speaker 3: that worry as well when being asked to predict effects
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Speaker 3: in future markets.
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Speaker 2: Google has previously said it's going to appeal. Do you
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Speaker 2: think Judge Meta's decision is conservative enough to survive at
10:19
Speaker 2: least at the DC appellate court stage.
10:22
Speaker 3: So he did a lot to try to survive review
10:27
Speaker 3: by the Court of Appeals. I mean, he relied quite
10:30
Speaker 3: heavily on key decisions, particularly the Microsoft remedy decisions. And
10:35
Speaker 3: he also, oh, by the way, bolstered one of the
10:38
Speaker 3: potential weaknesses in the liability decision while he was at it.
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Speaker 3: So I think it's not perfectly bulletproof the aspect of
10:49
Speaker 3: letting AI companies share in some of these data. If
10:54
Speaker 3: I were Google, I would be hitting on that whether
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Speaker 3: that was you know, not warranted given as he started
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Speaker 3: out by saying, there was nothing at the trial about
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Speaker 3: AI and there are ways of casting what he did
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Speaker 3: as maybe not within the bounds of what the goal
11:09
Speaker 3: was in the trial. So there's some potential issue there.
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Speaker 3: And you know, I mean it could be more conservative.
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Speaker 3: I guess he could have just given Google what Google wanted.
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Speaker 3: But it's a carefully drawn opinion, and you know, time
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Speaker 3: after time he sort of knocks the government plaintiffs back
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Speaker 3: a bit by saying, you know, you've overreached, you're asking
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Speaker 3: for too much. You know we need to be modest, etc. Etc.
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Speaker 2: And later this month Google is schedule to go on
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Speaker 2: trial to determine remedies in another case where a judge
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Speaker 2: has found the company holds illegal monopolies in online advertising tech.
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Speaker 2: So more to come, Thanks so much, Harry. That's Professor
11:48
Speaker 2: Harry First of NYU Law School. Coming up next. Trump
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Speaker 2: can't use a wartime act to deport alleged gang members.
11:56
Speaker 2: I'm June Grosso. When you're listening to Bloomberg.
12:03
Speaker 1: This is Bloomberg Law with June grosseo from Bloomberg Radio.
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Speaker 5: Venezuela has been a very bad actor. They've been, as
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Speaker 5: you know, they've been sending millions of people into our country.
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Speaker 5: Many of them Trend de Aragua, some of the worst gang,
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Speaker 5: some of the worst people anywhere in the world.
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Speaker 2: President Trump used an eighteenth century wartime law to try
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Speaker 2: to quickly deport alleged members of a violent Venezuelan gang
12:30
Speaker 2: in March, arguing that the Trend de Aragua gang had
12:34
Speaker 2: been sent to the US by Venezuela as president to
12:38
Speaker 2: destabilize the country. For the first time, a federal appeals
12:42
Speaker 2: court weighed in this week, blocking the administration from using
12:47
Speaker 2: the Alien Enemies Act of seventeen ninety eight to deport
12:51
Speaker 2: the men. The Fifth Circuit found that quote a country's
12:55
Speaker 2: encouraging its residents and citizens to enter this country illegally
12:59
Speaker 2: is not the modern day equivalent of sending an armed
13:03
Speaker 2: organized force to occupy, to disrupt, or to otherwise harm.
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Speaker 2: The United States borders are. Tom Holman had admitted that
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Speaker 2: the wartime law was being used for swift deportations that
13:16
Speaker 2: avoided due process.
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Speaker 5: I'm not arguing right here that nobody should get due process.
13:20
Speaker 5: I'm just saying there's a different process on the.
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Speaker 2: Alien Enemies Act unless of a process, and you see
13:25
Speaker 2: to Title eight.
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Speaker 1: DC.
13:26
Speaker 2: Appellate Judge Patricia Millett criticized the government for not giving
13:30
Speaker 2: the Venezuelans any opportunity to challenge their removals.
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Speaker 6: There were planeloads of people, there were no procedures in
13:39
Speaker 6: place to notify people. Nazi's got better treatment under the
13:44
Speaker 6: Alien Enemy Act and has happened here.
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Speaker 2: The two to one decision from the New Orleans Court
13:48
Speaker 2: will most likely end up back at the Supreme Court.
13:53
Speaker 2: My guest is immigration law expert Leon Fresco, a partner
13:56
Speaker 2: at Hollanda Knight le On. This case has been going
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Speaker 2: on almost sick so it has been up to the
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Speaker 2: Supreme Court twice already catch us up.
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Speaker 4: This is a case involving President Trump's proclamation in March
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Speaker 4: of twenty twenty five that the Venezuelan gang Trend de
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Speaker 4: Arragua was a dangerous invading force into the United States
14:17
Speaker 4: such that its members should be deported under the Alien
14:20
Speaker 4: Enemies Act, which permits deportation without due process. Essentially, the
14:25
Speaker 4: government can just apprehend anyone it says is in the
14:28
Speaker 4: Alien Enemies Act group, which in this case is Trend
14:31
Speaker 4: the Arragua, and deport them. And people are being deported
14:34
Speaker 4: to El Savador, to the Sea Coats Prison. Now There
14:38
Speaker 4: was two iterations of this case. The first one started
14:40
Speaker 4: in DC where just Bozberg had said that the government
14:43
Speaker 4: couldn't do this, and there was the debate about the
14:46
Speaker 4: flights and the debate about whether there should be contempt.
14:49
Speaker 4: But nevertheless, the Supreme Court comes in and says, no, no, no,
14:53
Speaker 4: all of that was wrong. None of that should have
14:55
Speaker 4: been filed in DC. These kinds of cases should be
14:58
Speaker 4: filed as abias cases. Now. Mind you, there was a
15:01
Speaker 4: decision a couple of years ago where just as Alito
15:04
Speaker 4: had said no more habeas for immigration. But nevertheless, I
15:08
Speaker 4: think that these facts on the ground concerned the Supreme
15:12
Speaker 4: Court so much they said, well, you've got to be
15:14
Speaker 4: able to file something, so fine, we're back to habeas again.
15:18
Speaker 4: So you've got to file them as habeas cases. And
15:20
Speaker 4: the habeas cases have to be in the locations where
15:23
Speaker 4: people were being detained. Well where were people being detained.
15:26
Speaker 4: They were being detained all over Texas. So there were
15:29
Speaker 4: district court decisions all over Texas. But now finally the
15:32
Speaker 4: main case reaches the Fifth Circuit and the Fifth Circuit
15:36
Speaker 4: grants the preliminary injunction preventing the removal of the petitioners
15:41
Speaker 4: who were the Venezuelan nationals that the Trump administration wanted
15:45
Speaker 4: to deport under the Alien Enemies Act.
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Speaker 2: Federal judges in Colorado, New York, and Texas have ruled
15:52
Speaker 2: that Trump improperly invoked that act. How did the Fifth
15:56
Speaker 2: Circuit come to that same conclusion?
15:58
Speaker 4: The Fifth Circuit, in a two to one decision, said
16:01
Speaker 4: that at the end of the day, the Alien Enemies
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Speaker 4: Act doesn't justify their removals because there isn't a declared
16:08
Speaker 4: war and that the actions of this trend that Aragua
16:11
Speaker 4: gang do not constitute an invasion or a predatory incursion
16:16
Speaker 4: by a foreign nation or a government, which requires, in
16:19
Speaker 4: their view, military like actions directed by a foreign power.
16:24
Speaker 4: They're saying, this is more of sort of a gang
16:26
Speaker 4: or criminal type of thing, but it isn't actually a
16:30
Speaker 4: military incursion. They don't even get into anything about whether
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Speaker 4: these individuals specifically are members of trend the Aragua or
16:39
Speaker 4: anything like that. They just say that this invocation of
16:42
Speaker 4: the Alien Enemies Act is unlawful and so it cannot
16:46
Speaker 4: be used to create deportation without due process. Now, they
16:50
Speaker 4: did say, if the Trump administration wants to deport these people,
16:53
Speaker 4: they can deport them under any other grounds that's permissible.
16:56
Speaker 2: The borders are Tom Holman and others in the administration
17:00
Speaker 2: and kept saying that the Venezuelans were terrorists. Was that
17:04
Speaker 2: part of their legal argument?
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Speaker 4: Well, first of all, you're correct. There's a very concerted effort,
17:08
Speaker 4: even in this bombing that occurred this week with the
17:11
Speaker 4: Venezuelan drug lords on the boat, that everybody calling them
17:15
Speaker 4: in the administration terrorists, to try to link that with
17:20
Speaker 4: some sort of military like action directed by a foreign power,
17:26
Speaker 4: to get it as close as possible to the Alien
17:28
Speaker 4: Enemies Act. But what this court is saying is that's
17:31
Speaker 4: not really what these people are. These people are not
17:35
Speaker 4: being instructed by the Venezuelan government to come to the
17:38
Speaker 4: United States and commit war acts against the United States.
17:43
Speaker 4: These are just individual criminals trying to profit off of
17:46
Speaker 4: drug and gang activities. They're not soldiers or quasi soldiers
17:50
Speaker 4: acting on behalf of the Venezuelan government.
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Speaker 2: This is a Fifth Circuit decision, the most conservative appellate
17:56
Speaker 2: court in the country, George W. Bush appointing Biden appointee
18:01
Speaker 2: in the majority and in descent a Trump appointee. What
18:05
Speaker 2: did the dissent argue.
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Speaker 4: Well, the dissenting judge who used to be the Solicitor
18:11
Speaker 4: General of the State of Texas, a very well known,
18:13
Speaker 4: strong conservative judge, Judge Oldham. He basically argued that the
18:18
Speaker 4: Alien Enemies Act is something that is so broad in
18:23
Speaker 4: terms of the congressional authority that the courts really don't
18:27
Speaker 4: have a role in reviewing a presidential determination under the
18:32
Speaker 4: Alien Enemies Act. Basically, what he was saying is that
18:35
Speaker 4: the courts should not second guess when the president says
18:39
Speaker 4: there's a war, because this can lead to very dangerous circumstances,
18:44
Speaker 4: and that you know, you have the president who has
18:46
Speaker 4: all of this sort of expertise in the sense that
18:49
Speaker 4: they have the Defense Department and the CIA and the
18:52
Speaker 4: Department of Homeland Security and the NSA to do all
18:56
Speaker 4: of this work and consultation, and they make a determination
19:01
Speaker 4: that there is a dangerous environment akin to the environment
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Speaker 4: that's required under the Alien Enemies Act. For the courts
19:09
Speaker 4: who are just judges sitting there in you know, Louisiana
19:12
Speaker 4: or Texas or wherever they're sitting that don't have all
19:16
Speaker 4: of this access to be able to come in and say, well,
19:18
Speaker 4: we don't actually think this rises to the kind of
19:22
Speaker 4: war level threat that is required under the Alien Enemies Act.
19:26
Speaker 4: Keeps saying that is incredibly dangerous because what is the
19:29
Speaker 4: limiting principle there? Now the judges can decide what is
19:33
Speaker 4: a war, what is in a war, and that's not
19:36
Speaker 4: what Congress had intended here. The problem with that is,
19:41
Speaker 4: at the end of the day, if you really have
19:43
Speaker 4: no limiting principle on the Alien Enemies Act at all,
19:47
Speaker 4: including whether it can be invoked and who it can
19:51
Speaker 4: be invoked again, then at that point, I mean, there
19:54
Speaker 4: really would be no way for either you or I
19:56
Speaker 4: or any of your listeners to go into court if
19:59
Speaker 4: we were mistaken Lee apprehended by Ice. Ice could say,
20:02
Speaker 4: you know, Leon or June, you're members of this trend,
20:05
Speaker 4: that Ragua gang, and we're sending you te El Salvador.
20:08
Speaker 4: And you could say, yeah, but I've never visited Venezuela,
20:11
Speaker 4: and I don't even know any Venezuelans and I'm not
20:13
Speaker 4: a member of a gang. I toast the bloomberg. So
20:16
Speaker 4: and it won't matter because there's no court to bring
20:19
Speaker 4: it to. And so I don't think anyone will be
20:23
Speaker 4: fully comfortable with that kind of decision. And I don't
20:27
Speaker 4: think the Supreme Court was comfortable with that, which is
20:29
Speaker 4: why they didn't issue that decision. And moving forward, I
20:34
Speaker 4: don't think they're gonna get there in terms of to
20:37
Speaker 4: just not have any due process determination as to these decisions.
20:41
Speaker 2: Yeah, Colorado judge called that argument nonsense.
20:45
Speaker 4: It's a difficult argument to make. I mean, look, it
20:48
Speaker 4: all depends where you're approaching this from. If you're approaching
20:52
Speaker 4: this from a belief system that everybody in the world
20:56
Speaker 4: acts in good faith, then you could conceivably understand you'd say, well,
21:00
Speaker 4: why would a president ever want to do something like
21:03
Speaker 4: this put someone in a detention if it wasn't absolutely necessary.
21:09
Speaker 4: But if you were to approach it from the perspective
21:11
Speaker 4: that sometimes people don't act in good faith or sometimes
21:14
Speaker 4: people make a mistake, then maybe you do need some
21:17
Speaker 4: due process in that system, because otherwise, what is checking
21:21
Speaker 4: those kinds of abuses from occurring.
21:23
Speaker 2: The ruling could be appealed to the full Fifth Circuit
21:26
Speaker 2: or could be appealed directly to the Supreme Court. Is
21:30
Speaker 2: there any reason to bother going for and on bank
21:33
Speaker 2: hearing at the Fifth Circuit when the case is just
21:36
Speaker 2: going to end up at the Supreme Court.
21:38
Speaker 4: Anyway, you know, right now, the government doesn't have the
21:41
Speaker 4: strongest hand, and maybe you know, the government wins in
21:44
Speaker 4: the Fifth Circuit fully, and so then it would be
21:48
Speaker 4: the onus then on the foreign nationals to actually then
21:51
Speaker 4: appeal to the Supreme Court. So from that perspective, they
21:55
Speaker 4: may want to strengthen their hand. But honestly, if the
21:59
Speaker 4: trumpet is trying to really say, hey, these are the
22:03
Speaker 4: most dangerous people in the world and we need to
22:05
Speaker 4: get them out as soon as possible, asking for Unbank
22:08
Speaker 4: review of the Fifth Circuit doesn't seem to make a
22:10
Speaker 4: lot of sense, because why are you delaying getting to
22:13
Speaker 4: the ultimate outcome here. So I don't think from a
22:17
Speaker 4: political perspective it makes a lot of sense to go
22:20
Speaker 4: for Unbank review. It may make sense strengthening the argument
22:24
Speaker 4: in a typical case because you might win in the
22:27
Speaker 4: en Bank. But at the end of the day, if
22:29
Speaker 4: what you're trying to say is, look, we need to
22:31
Speaker 4: final answer, we need to get these theorists out of
22:33
Speaker 4: the country as soon as possible, I think you would
22:35
Speaker 4: want the Supreme Court to look at this as soon
22:38
Speaker 4: as possible.
22:39
Speaker 2: So the Supreme Court never answered the question of whether
22:43
Speaker 2: Trump's use of the Alien Enemies Act is valid. Do
22:47
Speaker 2: you have any inkling from the way they ruled twice before.
22:51
Speaker 4: Well, I think that at the end of the day,
22:53
Speaker 4: there won't be five justices that say that you can't
22:58
Speaker 4: review this general concept of whether it was proper to
23:02
Speaker 4: have an Alien Enemies Act determination. Now, they may give
23:07
Speaker 4: some very strong difference to the administration. In fact, I
23:10
Speaker 4: would be shocked if they didn't give strong difference to
23:13
Speaker 4: the administration. But they may say, look, even with very
23:16
Speaker 4: strong difference, this isn't the kind of case that gets it.
23:19
Speaker 4: I mean that issue is going to be closed. I
23:22
Speaker 4: don't think there will be any justice that says that
23:25
Speaker 4: an individual person can't come forward and make a claim
23:29
Speaker 4: that look, you may claim there's a problem, but I'm
23:31
Speaker 4: not a member of the problem group. I think those
23:34
Speaker 4: people will nine nothing be able to get due process,
23:38
Speaker 4: in habeas or in some other way to be able
23:41
Speaker 4: to make that argument. That's the second thing. And then
23:44
Speaker 4: the third thing. The court said that seven days is
23:47
Speaker 4: enough to make these claims, so that the government, if
23:50
Speaker 4: they designate you as part of the problem group, you
23:53
Speaker 4: have seven days to file a lawsuit or you can
23:55
Speaker 4: be deported and the dissenting judged there, Judge Ramirez said, no,
24:00
Speaker 4: you need twenty one days at least. And you know
24:03
Speaker 4: this is everybody just making this up out of old clause.
24:05
Speaker 4: But the question is, you know, if you don't speak English,
24:07
Speaker 4: you don't have access to a lawyer, what is a
24:09
Speaker 4: reasonable amount of time to give you to file a
24:12
Speaker 4: federal Habeast complaint in the court. That's not the easiest
24:16
Speaker 4: thing for someone to do. Imagine you know, you or
24:18
Speaker 4: I going to China right now and trying to file
24:21
Speaker 4: a court document there when we don't speak Chinese, we
24:24
Speaker 4: don't know anything about the law, We don't know anything.
24:27
Speaker 4: You know, what would be a reasonable amount of time
24:29
Speaker 4: to give a person in that situation? And so that's
24:33
Speaker 4: the question here, and you know the Supreme Court's going
24:35
Speaker 4: to have to grapple with that too.
24:37
Speaker 2: We'll see if the administration appeals this directly to the
24:40
Speaker 2: Supreme Court. Thanks so much, Leon. That's Leon Fresco of
24:43
Speaker 2: Hollanden Night. Coming up next, a judge rules the National
24:47
Speaker 2: Guard deployment to La broke the law. I'm June Grosso
24:51
Speaker 2: and you're listening to Bloomberg.
24:54
Speaker 5: If I didn't send the National Guard into Los Angeles.
24:57
Speaker 1: You wouldn't.
24:57
Speaker 5: I would be making an announcement to that be talking
25:00
Speaker 5: about Huntsville, and I'd simultaneously be saying, by the way,
25:04
Speaker 5: the Olympics is not coming to Los Angeles.
25:07
Speaker 2: But a federal judge ruled on Tuesday that President Trump's
25:11
Speaker 2: deployment of National Guard troops and US Marines to carry
25:15
Speaker 2: out law enforcement activities in Los Angeles this summer was illegal.
25:20
Speaker 2: In a scathing decision, Judge Charles Bryer noted that Trump
25:24
Speaker 2: has made threats to deploy the Guard and troops in
25:28
Speaker 2: other cities, which would create a national police force with
25:31
Speaker 2: the President as its chief.
25:34
Speaker 5: I could do that with Chicago, We could do that
25:36
Speaker 5: with New York. We could do it with Los Angeles.
25:40
Speaker 5: So we're making a determination, now do we go to Chicago.
25:44
Speaker 7: I find this extraordinarily strange, as Chicago does not want
25:47
Speaker 7: troops on our streets.
25:49
Speaker 2: Illinois Governor JB. Pritzker has said he'll challenge in court
25:53
Speaker 2: any deployment of troops to Chicago, where a violent crime
25:57
Speaker 2: is down twenty three percent over last year, and Mayor
26:01
Speaker 2: Brandon Johnson has issued an executive order outlining the city's
26:05
Speaker 2: plans to resist any deployment of troops.
26:08
Speaker 7: The sweeping executive order directs our Department of Law to
26:11
Speaker 7: pursue any and every legal mechanism to hold this administration
26:15
Speaker 7: accountable for violating the rights of chicagoan's. This order affirms
26:20
Speaker 7: that the Chicago Police Department will not collaborate with military
26:24
Speaker 7: personnel on police patrols or civil immigration enforcement.
26:29
Speaker 5: Now we're going to do it anyway. We have the
26:32
Speaker 5: right to do it because I have an obligation to
26:34
Speaker 5: protect this country.
26:36
Speaker 2: It remains unclear what actions Trump may take in Chicago
26:40
Speaker 2: and when. My guest is constitutional law expert Harold Krant,
26:44
Speaker 2: a professor at the Chicago Kent College of Law, hal
26:48
Speaker 2: is Judge Briar's decision a complete refutation of Trump's sending
26:54
Speaker 2: troops into Los Angeles.
26:56
Speaker 8: It's a partial reputation. And indeed, just Buyer's order allows
27:00
Speaker 8: the military to remain. What he has done is delineate
27:05
Speaker 8: what they can and cannot do. And so this is
27:08
Speaker 8: an effort by the judge. This steer clear of the
27:11
Speaker 8: earlier Ninth Circuit decision which lifted Day on his earlier
27:15
Speaker 8: preliminary injunction. So the court here is trying to be
27:18
Speaker 8: careful in trying to say what the National Guard can
27:22
Speaker 8: do and can't do.
27:24
Speaker 2: Judge Briar delayed his ruling until next week to give
27:27
Speaker 2: the administration ten days to appeal, but it didn't take
27:31
Speaker 2: them that long. They appealed the next day on Wednesday,
27:35
Speaker 2: and the Ninth Circuit put this second order on hold
27:39
Speaker 2: on Thursday to give it more time to rule on
27:43
Speaker 2: the administration's request for an indefinite pause. So a fast
27:47
Speaker 2: moving case now. Judge Briar did rule that the deployment
27:52
Speaker 2: was a violation of the Posse Commatantis Act that bars
27:56
Speaker 2: the military from engaging in domes law enforcement.
28:02
Speaker 8: He did, but he said that there were some duties
28:04
Speaker 8: that the federalized National Guard could in fact undertake consistent
28:10
Speaker 8: with the pass Comatatas Act. But he made a fatual
28:12
Speaker 8: finding that the troops had done more than that they
28:15
Speaker 8: had engaged in general law enforcement activity, which she said
28:20
Speaker 8: was proscribed under the camatatas aac and tradition. So he
28:24
Speaker 8: made a more narrow nuance finding when they had previously.
28:27
Speaker 8: He didn't even question the ability of the president to
28:31
Speaker 8: federalize the National Guard against the governor's wishes, but he
28:34
Speaker 8: said even if the president can do that the National
28:37
Speaker 8: Guard can't engage in general law enforcement activities, including covering
28:43
Speaker 8: ice agents, including dispersing crowds and so forth.
28:49
Speaker 2: And just to clarify, Judge Bryer had previously ruled that
28:52
Speaker 2: Trump had to return control of the National Guard to
28:56
Speaker 2: the state, but that ruling was put on hold by
28:59
Speaker 2: the Ninth Circuit, And this new ruling applies specifically to
29:03
Speaker 2: the Possi Cooma Tatis Act.
29:05
Speaker 8: So he is trying to create a decision in my
29:08
Speaker 8: mind here that is consistent with the broad principles he articulated,
29:13
Speaker 8: previously limiting the president's abilities to nationalize the Federal Guard,
29:17
Speaker 8: but then, realizing that the Ninth Circuit had overruled him
29:20
Speaker 8: in part previously, then decided to add more granually that
29:25
Speaker 8: even if the President could nationalize the National Guard, that
29:29
Speaker 8: they could not engage in sort of typical law enforcement authorities.
29:34
Speaker 8: But I think the consensus has been that the president
29:38
Speaker 8: cannot nationalize the National Guard. You know, unless all typical
29:43
Speaker 8: law enforcement has collapsed, you can't enforce court orders or
29:47
Speaker 8: there's an insurrection, and obviously those two things are not
29:51
Speaker 8: in place in Los Angeles. In my mind, though, this
29:53
Speaker 8: is a sideshow because President Trump continually says that he
29:58
Speaker 8: can federalize the National Guard and send them wherever he wants,
30:01
Speaker 8: to include Chicago, just for ordinary criminal law enforcements. So
30:04
Speaker 8: it's clear that there's a clash between the Court's view
30:08
Speaker 8: of the limits of the president's authority under the Pasi
30:12
Speaker 8: Coomatatis Act and what the President thinks he can do
30:15
Speaker 8: and has continually espoused he can do in terms of
30:18
Speaker 8: federalizing the troops at a moment's notice.
30:21
Speaker 2: And the judge said he was applying his injunction statewide
30:25
Speaker 2: instead of just in Los Angeles, because Trump had demonstrated
30:30
Speaker 2: a desire to violate the Passikama Tatis Act in other cities.
30:35
Speaker 2: And Judge Briar cited this statement by Trump in an
30:39
Speaker 2: August twenty seventh cabinet meeting where he discussed sending the
30:43
Speaker 2: National Guard into Chicago.
30:46
Speaker 8: Have the right to do anything I want to do.
30:48
Speaker 5: I'm the President of the United States. If I think
30:50
Speaker 5: our country is in danger, and it is in danger
30:52
Speaker 5: in these cities, I can do it.
30:54
Speaker 2: Do you think Judge Briar went too far in his opinion.
30:58
Speaker 8: My only concern about the the Court's opinion is that
31:01
Speaker 8: the Court seemed to be dismissing the president's sort of
31:05
Speaker 8: inherent authority. As a statutory matter, I think the Court
31:08
Speaker 8: is on strong ground, both historically and in terms of
31:11
Speaker 8: textually of understanding the limits of the pass comatatous Act.
31:15
Speaker 8: I think the Court was a little bit quick in
31:18
Speaker 8: terms of dismissing the president sort of inherent authority under
31:22
Speaker 8: the Commander and Chief clause of the Constitution. Clearly, presidents
31:26
Speaker 8: have to make tough costs, tough cause in terms of
31:29
Speaker 8: lias on the streets, tough cause in terms of potential
31:32
Speaker 8: invasions and so forth. And so if the president said
31:36
Speaker 8: we need to protect federal buildings, we need to protect
31:40
Speaker 8: federal instrumentalities, might think that Article to itself might give
31:44
Speaker 8: the president arguably does give it the president that kind
31:46
Speaker 8: of authority to order troops to protect those even if
31:50
Speaker 8: states say they don't need it. So that's not at
31:52
Speaker 8: stake here, and President Trump's news conference clearly illustrates that
31:57
Speaker 8: that's not at stake here. But I think that might
32:00
Speaker 8: be a weakness in the Court's opinion, because I do
32:04
Speaker 8: think that the chief executive has to make those tough
32:06
Speaker 8: calls if there are threats in the president's mind to
32:10
Speaker 8: federal instrumentalities within the states.
32:12
Speaker 2: With regard to Chicago, Trump's only stated justification for sending
32:18
Speaker 2: troops in is to combat what he says is rampant crime.
32:23
Speaker 2: The same goes for New York and Baltimore, despite the
32:27
Speaker 2: data showing that crime has dropped in those cities, and
32:31
Speaker 2: Chicago isn't even on the list of the ten most
32:34
Speaker 2: dangerous cities in the country.
32:36
Speaker 8: Well, absolutely no justification for what the President said he's
32:39
Speaker 8: going to do in Chicago, which is even more indefensible
32:43
Speaker 8: than what he did in California. And I would expect
32:48
Speaker 8: that the mayor of Chicago, Mayor Johnson, and the governor of Illinois,
32:51
Speaker 8: Governor Pritsker, will immediately go to court not only cite
32:55
Speaker 8: the most recent Judge Briar decision, but cite just more
32:58
Speaker 8: convincingly that the President has acknowledged the purpose for why
33:02
Speaker 8: he's sending in troops into Chicago, and that's absolutely prohibited
33:06
Speaker 8: by the pussy com pat effect under any construction of
33:09
Speaker 8: the terms of the statute.
33:11
Speaker 2: So Judge Briar's decision has no effect in Illinois, correct,
33:17
Speaker 2: But is the reasoning strong enough to apply to Illinois?
33:22
Speaker 8: I think that reasoning will cover the same situation, and again,
33:26
Speaker 8: Chicago is an easier case. And I think that to
33:28
Speaker 8: the extent that the President would say that ICE agents
33:32
Speaker 8: are under attack and that he is commander Chief can't
33:36
Speaker 8: ensure an orderly function of immigration processes in this country
33:40
Speaker 8: without calling in supportive troops. That would be the strongest
33:43
Speaker 8: sort of justification that I can understand in the California
33:47
Speaker 8: context for the use of either the federalized National Guard
33:50
Speaker 8: or for the Marines. But he clearly in Chicago's built
33:53
Speaker 8: is that I don't even need that justification. I can
33:55
Speaker 8: send troops wherever I want, whenever I want, because I'm
33:58
Speaker 8: the President of United States, And that downright is frightening.
34:01
Speaker 8: Not only is it clearly outlawed by the Pussy Comatatas
34:04
Speaker 8: Act and by the history that led to the act,
34:07
Speaker 8: but it's a huge step towards autocracy.
34:09
Speaker 2: What if instead of sending in the National Guard or
34:13
Speaker 2: the Marines, Trump just sent in lots and lots of
34:18
Speaker 2: federal agents, the FBI, the DEA ICE. Would there be
34:23
Speaker 2: any problem with that?
34:24
Speaker 8: Legally there may be pockets of restrictions, but if ordinarily
34:28
Speaker 8: that would be within his power, and certainly he can
34:32
Speaker 8: shift FBI agents over to Ice and his temporary details.
34:36
Speaker 8: He has the power to do that under prior statute.
34:38
Speaker 8: So in that respect he could accomplish at least some
34:41
Speaker 8: of his goals. But again, he could not engage those
34:45
Speaker 8: FBI agents in terms of taking over for general law
34:48
Speaker 8: enforcement for Chicago because the FBI is not authorized. The
34:52
Speaker 8: agents aren't authorized to deal with conventional robbery, theft, etc.
34:57
Speaker 8: That are state crimes, not federal crimes.
35:00
Speaker 2: Judge Bryer also said that if the President wants to
35:04
Speaker 2: avoid the restrictions of the Posse comma Tatis Act, he
35:08
Speaker 2: could invoke a valid exception like the Insurrection Act quote
35:14
Speaker 2: along with its requisite showing that state and local law
35:17
Speaker 2: enforcement are unable or unwilling to act. Obviously, Trump did
35:23
Speaker 2: not invoke the Insurrection Act when the capital was attacked
35:27
Speaker 2: in twenty twenty one, but theoretically could he do it
35:30
Speaker 2: in a city like Chicago.
35:32
Speaker 8: Well, when we had riots in the wake of the
35:35
Speaker 8: sassination of Martin Luther King, when we had the unrest
35:39
Speaker 8: because of the George Floyd murder, arguably local law enforcement
35:43
Speaker 8: could not take the helm and preserve law and order,
35:46
Speaker 8: and that is an exception of the putscun Titus Act,
35:50
Speaker 8: and indeed, the courts would be in difficult position if
35:54
Speaker 8: the president made a careful finding that that is why
35:57
Speaker 8: he is sending troops, that there is no local law
36:00
Speaker 8: enforcement that can take care of law enforcement activities. I
36:04
Speaker 8: don't even know what the theory would be in Chicago,
36:06
Speaker 8: but if he says that there is a insurrection because
36:10
Speaker 8: undocumented workers are rising up in arms against the authority,
36:15
Speaker 8: or he would say that some other kind of indirection
36:18
Speaker 8: is taking place, then he could justifiably use federal troops.
36:22
Speaker 8: He has not made that claim, and indeed, given the
36:26
Speaker 8: fact that the clim has gone down into these like Washington,
36:28
Speaker 8: DC in Chicago, it's simply far fetched. So, yes, presidents
36:33
Speaker 8: have sent in troops, and President Trump could in the future,
36:36
Speaker 8: respecting Congress, but not in these situations. Obviously, the Constitution
36:41
Speaker 8: ascribes a principal role to Congress in deciding when to
36:46
Speaker 8: introduce the military into civilian situations. Congress has done so
36:50
Speaker 8: in the Potsakakamatitis Act as well as the limitations in
36:53
Speaker 8: the Insurrection Act. And that's the role that the Constitution
36:57
Speaker 8: gives to Congress. And Trump is just writing buckshot over
37:01
Speaker 8: the constitutional structure.
37:03
Speaker 2: And with all the legal questions. We haven't discussed the cost.
37:07
Speaker 2: California Governor Gavin Newsom says that it costs the taxpayers
37:12
Speaker 2: one hundred and eighteen million dollars when Trump sent the
37:15
Speaker 2: National Guard to Los Angeles. Something else to consider, Thanks
37:20
Speaker 2: so much. How that's Professor Harold Krent of the Chicago
37:23
Speaker 2: Kent College of Law. And that's it for this edition
37:26
Speaker 2: of The Bloomberg Law Show. Remember you can always get
37:29
Speaker 2: the latest legal news on our Bloomberg Law Podcast. You
37:32
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37:36
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37:41
Speaker 2: to tune into The Bloomberg Law Show every weeknight at
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Speaker 2: ten pm Wall Street Time. I'm June Grosso and you're
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Speaker 2: listening to Bloomberg