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California vs Trump & Big Beautiful Bill · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
0:08
Speaker 2: Yesterday, while announcing the federal takeover of DC's police department
0:13
Speaker 2: and the deployment of the National Guard to crack down
0:16
Speaker 2: on crime in the nation's capital, President Trump threatened to
0:20
Speaker 2: apply the same unprecedented action to other democratic run cities
0:26
Speaker 2: like New York and Chicago.
0:28
Speaker 3: And if we need to, we're going to do the
0:30
Speaker 3: same thing in Chicago, which is a disaster. We have
0:33
Speaker 3: a mayor there who's totally incompetent. He's an incompetent man.
0:38
Speaker 3: And we have an incompetent governor there. Pritzker is an
0:42
Speaker 3: incompetent But when.
0:44
Speaker 4: I look at Chicago and I look at LA, if
0:49
Speaker 4: we didn't go to LA three months ago, La would
0:53
Speaker 4: be burning like the part that didn't burn.
0:55
Speaker 2: But the legality of that deployment of the National Guard
0:59
Speaker 2: in Marines to Los Angeles in June is a question
1:02
Speaker 2: that will be determined at a trial this week in
1:05
Speaker 2: San Francisco Federal Court. Trump sent the troops to the
1:09
Speaker 2: nation's second largest city to address protests against immigration arrests
1:14
Speaker 2: against the wishes of California Governor Gavin Newsom Newsom and
1:18
Speaker 2: La Mayor Karen Bass have argued that the troops weren't
1:22
Speaker 2: needed and their presence actually inflamed tensions in the city.
1:27
Speaker 1: He federalized another two thousand Guard members. He deployed more
1:31
Speaker 1: than seven hundred active US Marines. These are the men
1:36
Speaker 1: and women trained for foreign combat, not domestic law enforcement.
1:42
Speaker 2: We're working with officials, we're organizing resources.
1:46
Speaker 3: But what we're seeing in Los Angeles is chaos that
1:49
Speaker 3: is provoked by the administration.
1:51
Speaker 2: My guest is Claire Finkelstein, a professor of law at
1:54
Speaker 2: the University of Pennsylvania. She's an expert in war powers
1:58
Speaker 2: and national security life. Claire tell us about California's suit
2:02
Speaker 2: against the Trump administration.
2:04
Speaker 5: So, California filed suit to object to the federalization of
2:11
Speaker 5: the California National Guard. And there were two bases that
2:16
Speaker 5: the Trump administration has claimed for federalizing the California National Guard,
2:22
Speaker 5: and one is the protective power. This is claimed to
2:26
Speaker 5: be an inherent article to power that the president can
2:30
Speaker 5: wield in order to protect federal assets. That means federal persons,
2:35
Speaker 5: federal buildings, and to say we're out there in order
2:40
Speaker 5: to protect anything federal, so that means ice agents, and
2:46
Speaker 5: the claim is ice agents couldn't do their jobs. There
2:49
Speaker 5: are also federal buildings under threat, and so we had
2:53
Speaker 5: to federalize the National Guard in order to protect federal assets.
2:57
Speaker 5: So that's number one, and then the other one is
2:59
Speaker 5: ten USC. Twelve four h six, which is a little
3:02
Speaker 5: use statute. The last time it was used was actually
3:06
Speaker 5: in the Nixon era to federalize the Guard on the
3:09
Speaker 5: grounds that there was a rebellion or that they could
3:14
Speaker 5: not otherwise get compliance with the law, and that was
3:19
Speaker 5: something that the Trump administration was claiming in this instance.
3:23
Speaker 5: The State of California challenged that and said, what's the
3:27
Speaker 5: basis for the federal government thinking that there was a rebellion?
3:31
Speaker 5: No signs of rebellion here, just some law enforcement issues
3:35
Speaker 5: which we, the State of California, can handle on top
3:38
Speaker 5: of it. California was saying, this is a violation of
3:40
Speaker 5: the tenth Amendments. We, the State of California, California governor,
3:45
Speaker 5: California officials are in charge of law enforcement and police powers,
3:51
Speaker 5: and we are not asking you to come in. So that,
3:54
Speaker 5: in general, when there is federalization to assist with police
3:58
Speaker 5: thing that is normally at the request of a governor.
4:03
Speaker 5: There's some other issues, other arguments that they made about
4:07
Speaker 5: how twelve four h six was applied, such as the
4:10
Speaker 5: fact that twelve four h six requires that troops be
4:14
Speaker 5: deployed with coordination of the governor, that the troops have
4:19
Speaker 5: to be deployed through the governor, and that wasn't done.
4:22
Speaker 5: Governor Newsom wasn't even informed about the federalization of the
4:27
Speaker 5: National Guard before it occurred, and a number of other
4:30
Speaker 5: points that they argued. But that's the gist of their claim.
4:34
Speaker 2: The trial judge Charles Bryer, who by the way, is
4:37
Speaker 2: retired Justice Stephen Bryer's younger brother, so that the factual
4:42
Speaker 2: issue is did the Marines and National Guard violate the
4:46
Speaker 2: Posse Comma Tatis Act? Tell us about that Act from
4:50
Speaker 2: eighteen seventy eight.
4:52
Speaker 5: So the puss commatadism that's what's being litigated this week,
4:56
Speaker 5: says that federal troops normally cannot engage in law enforcement.
5:02
Speaker 5: So that is very different from when the governor is
5:06
Speaker 5: in control of the California National Guard under States active
5:10
Speaker 5: duty status or Title thirty two, because in that case
5:14
Speaker 5: there is an exception to Posse coomatadis when it is
5:19
Speaker 5: under control of state and local authorities. But when troops
5:23
Speaker 5: are federalized, the Posse Coomatadas Act applies, and that is
5:28
Speaker 5: a criminal statute that says federal troops cannot engage in
5:32
Speaker 5: law enforcement activities. That the federal government says, in this case,
5:36
Speaker 5: under the protective Power and under twelve four h six
5:39
Speaker 5: number one, we were not engaged in law enforcement activities.
5:43
Speaker 5: The rules for the use of force that we gave
5:46
Speaker 5: to the troops, that's like their rules of engagement. Exception
5:50
Speaker 5: in domestic context, we call that rules for the use
5:52
Speaker 5: of force did not involve, for example, making arrest. Troops
5:56
Speaker 5: were told that they could not make arrests specifically, and
5:59
Speaker 5: therefore they were not violating Posse coomatatis because they weren't
6:02
Speaker 5: involved in law enforcement activities. But California has said, in fact,
6:07
Speaker 5: you were involved in law enforcement activities and cited a
6:12
Speaker 5: number of instances such as the ability to detain individuals
6:18
Speaker 5: waiting for law enforcements such as LAPD to show up.
6:22
Speaker 5: They maintain that that's a violation of passcommatatas.
6:26
Speaker 2: Is Judge Bryer only going to consider the posse comma
6:29
Speaker 2: Tatis Act, or will you also consider the claims that
6:32
Speaker 2: the deployment violates the Tenth Amendment.
6:35
Speaker 5: From what I understand, passi commatatas is the main issue
6:38
Speaker 5: under consideration, but it looks very much as though issues
6:41
Speaker 5: of federalization will be considered as well, because it's really
6:46
Speaker 5: impossible to consider one without considering the other. The administration,
6:52
Speaker 5: in addition to everything else, rejects the claim that posse
6:56
Speaker 5: comma tatis applies when the troops are deployed in their
7:04
Speaker 5: protective capacity, namely engaged in protection for federal assets. They
7:11
Speaker 5: also deny that it applies under twelve four h six,
7:16
Speaker 5: and they say twelve four h six is like the
7:18
Speaker 5: Insurrection Act. Under the Insurrection Act, is generally recognized that
7:23
Speaker 5: there is an exception to prosecommatatis and that the president
7:29
Speaker 5: is allowed to deploy federal troops in a law enforcement capacity,
7:35
Speaker 5: but only because there is seemed to be a situation
7:40
Speaker 5: that is so serious that in fact there's an full
7:44
Speaker 5: blown insurrection and there is no way to gain control
7:48
Speaker 5: over the region or that part of the country, whatever
7:52
Speaker 5: is an issue without having federal troops engage in law
7:56
Speaker 5: enforcement activities.
7:58
Speaker 2: One of the first witnesses on the stand was a
8:01
Speaker 2: longtime military leader, Major General Scott Sherman, who commanded the
8:05
Speaker 2: Guard troops in La. So he testified that he'd never
8:10
Speaker 2: heard the word rebellion used to describe the situation in
8:14
Speaker 2: LA and also he expressed resistance at first when federal
8:20
Speaker 2: immigration authorities wanted military support.
8:23
Speaker 5: So his testimony was important for a couple of reasons.
8:26
Speaker 5: The first reason is that he testified that he expressed
8:30
Speaker 5: reservations and stronger than that, that he voiced opposition to
8:36
Speaker 5: this operation, and that he was rebuked by a senior
8:40
Speaker 5: Customs and Border Patrol official who questioned his loyalty to
8:45
Speaker 5: the nation, which is very surprising. It's very important that
8:48
Speaker 5: the military are able to express their concerns about the
8:53
Speaker 5: boundaries of the operations that they're being asked to undertake,
8:57
Speaker 5: and normally that would be given an awful lot of difference.
9:01
Speaker 5: When you have a senior military leader who was saying,
9:05
Speaker 5: this is not an operation that we should be undertaking.
9:07
Speaker 5: It's not appropriate for the military. You would expect an
9:11
Speaker 5: administration to be sensitive and respectful of that. But it
9:15
Speaker 5: also suggests that there was a sort of pecking order
9:20
Speaker 5: and that was a concern about this operation to begin with,
9:24
Speaker 5: that customs and Border patrol were sort of calling the
9:27
Speaker 5: shot and that the military was going to be placed
9:33
Speaker 5: in a subordinate position to customs and border patrol. That's
9:38
Speaker 5: problematic from the standpoint of fasecomatatas since the military is
9:43
Speaker 5: not supposed to be subordinate to civilian law enforcement agents
9:48
Speaker 5: because it sort of turns them into law enforcement agents.
9:53
Speaker 5: So that's one reason this is problematic. Another reason his
9:57
Speaker 5: testimony was important is that he talked about what troops
10:03
Speaker 5: were allowed to do, what they were told they were
10:05
Speaker 5: allowed to do, and what they were not allowed to do.
10:08
Speaker 5: So though the administration has been very insistent that the
10:14
Speaker 5: orders to troops did not violate Polsicoma tatis, his testimony
10:19
Speaker 5: suggested that they were allowed to turn military force to
10:27
Speaker 5: civilians if civilians were impeding federal operations such as ICE operations. Now,
10:34
Speaker 5: that might be what you would expect if they're there
10:37
Speaker 5: in their protective capacity, but it shows how tricky it
10:41
Speaker 5: is to have troops out there and to expect that
10:44
Speaker 5: they're not going to be involved in law enforcement activities,
10:49
Speaker 5: because it's very hard to draw the boundary there. If
10:52
Speaker 5: they're in a protective capacity, they could very well end
10:55
Speaker 5: up having to engage in law enforcement activities, and typically
11:00
Speaker 5: our troops are not trained for that. They don't know
11:03
Speaker 5: how to conduct arrests, they don't necessarily know how to
11:07
Speaker 5: intersect with civilians who were engaged in criminal activities. They
11:12
Speaker 5: don't know how to preserve a crime scene. They're not
11:15
Speaker 5: necessarily trained in that. And so though our National Guard
11:19
Speaker 5: troops are excellent at what they do, crime control is
11:23
Speaker 5: not their beat. And this is presumably one of the
11:26
Speaker 5: reasons why General Sherman was concerned about this operation.
11:30
Speaker 2: Another witness who's taken the Standofready is the Los Angeles
11:35
Speaker 2: Field Office director for the Department of Homeland Security, and
11:38
Speaker 2: he testified that before the deployment they received multiple reports
11:43
Speaker 2: daily of attacks on his officers, but after we still
11:47
Speaker 2: had officer assault situations, but they did reduce drastically. If
11:52
Speaker 2: all they were doing was guarding the officers, there wouldn't
11:56
Speaker 2: be a problem under posse comma tatis would there?
11:59
Speaker 5: Well again, in theory no, but as soon as you're
12:03
Speaker 5: guarding personnel, you could very easily stray into activity that
12:10
Speaker 5: implicates passcomatatas. So again, what if there's an attack on
12:16
Speaker 5: a federal officer and there's no one around but National
12:22
Speaker 5: Guard troops to engage in the detention or make that arrest.
12:27
Speaker 5: This is what happened in one incident involving a veteran
12:31
Speaker 5: who was trying to enter the Bureau of Veterans' Affairs,
12:35
Speaker 5: and the Marines detained him and he was detained for
12:41
Speaker 5: two hours. Roughly. They mistook his intentions and they did
12:46
Speaker 5: not understand what he was there for. It was really
12:49
Speaker 5: a mistake, but because there were no LAPD present at
12:54
Speaker 5: the time, they viewed it necessary to hold him and
12:57
Speaker 5: detain him until law enforcement officer could show up. The
13:01
Speaker 5: question is whether or not there was a violation of
13:05
Speaker 5: Pussey coomatadas just in the detention itself.
13:09
Speaker 2: Coming up next, the importance of the trial judge's decision
13:13
Speaker 2: in the context of Trump's threats to exercise similar powers
13:18
Speaker 2: in other cities. You're listening to Bloomberg this week. The
13:22
Speaker 2: Trump administration and California are facing off in court for
13:27
Speaker 2: a three day trial over President Trump's decision to deploy
13:31
Speaker 2: the National Guard in Marines in Los Angeles. Trump sent
13:35
Speaker 2: the troops to address protests against immigration arrests against the
13:40
Speaker 2: wishes of Governor Gavin Newsom. I've been talking to Claire Finkelstein,
13:44
Speaker 2: a professor of law at the University of Pennsylvania. Claire
13:48
Speaker 2: the Governor said that because the National Guard was being
13:51
Speaker 2: used in this capacity, they weren't available to do the
13:55
Speaker 2: things they would normally do in California, for example, helping
14:00
Speaker 2: with suppressing the wildfires. Will the judge be considering that
14:04
Speaker 2: aspect of it.
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Speaker 5: I do think that's something that a judge could take
14:07
Speaker 5: into account. But now we start to get into the
14:10
Speaker 5: tricky territory of exercising judgments over where troops are best used,
14:16
Speaker 5: and that's normally not really within the purview of a
14:21
Speaker 5: judge to make those decisions in any way. But if
14:25
Speaker 5: the judge here's testimony to the effect that, you know,
14:29
Speaker 5: there really wasn't an emergency in Los Angeles, that really
14:33
Speaker 5: wasn't necessary to have federal troops out there, which indeed
14:39
Speaker 5: is supported by the fact that many of them were
14:42
Speaker 5: just sort of standing around doing nothing and there were
14:45
Speaker 5: needs that the state was not able to fill because
14:49
Speaker 5: of the commandeering of National Guard troops, then I think
14:53
Speaker 5: that that may weigh in the judge's calculation.
14:56
Speaker 2: So the administration says the troops were there to escore
15:00
Speaker 2: federal agents to protect federal personnel and property. They deployed
15:04
Speaker 2: about five thousand California National Guard members and seven hundred
15:09
Speaker 2: marines to Los Angeles. Do the numbers seem out of kilter?
15:13
Speaker 5: They do seem out of kilter, And clearly it wasn't
15:16
Speaker 5: necessary because most of the troops were not doing anything.
15:20
Speaker 5: Some of the descriptions were sitting around with playing cards.
15:24
Speaker 5: That's the ones who weren't even properly deployed. They were
15:29
Speaker 5: just held in reserve. And then among those who were deployed,
15:31
Speaker 5: it was really more of a show of force. For
15:34
Speaker 5: those who were put into an active posture. Some of
15:39
Speaker 5: the things that they did were very inappropriate, and of
15:44
Speaker 5: course that was upon orders. It wasn't the fault of
15:47
Speaker 5: those who engaged in those activities. But for example, there
15:51
Speaker 5: was a park that was very aggressively visited by National
15:57
Speaker 5: Guard that was a freak when play location for children
16:02
Speaker 5: and children who were going off to summer camp on buses.
16:07
Speaker 5: There was no criminal activity, there were no demonstrations going on,
16:11
Speaker 5: there were no federal buildings, and so the idea that
16:16
Speaker 5: National Guard were needed on horseback in that instance, to
16:20
Speaker 5: go through the park is a very questionable one and
16:24
Speaker 5: sort of makes you wonder what the purpose was the
16:26
Speaker 5: deployment in the first place.
16:28
Speaker 2: What kinds of things would the Trump administration have to
16:31
Speaker 2: show in order to prevail at this trial.
16:35
Speaker 5: There was certainly criminal wrongdoing in some of the demonstrations
16:39
Speaker 5: that occurred early on, but what they would have to show,
16:44
Speaker 5: it seems to me is that the California administration Los
16:47
Speaker 5: Angeles was not able to handle that from the standpoint
16:51
Speaker 5: of ordinary law enforcement. Question whether or not, even if
16:55
Speaker 5: they could show that the fact that California itself was
16:59
Speaker 5: not requested the presence of those troops was not saying, look,
17:03
Speaker 5: we really need your help, as in the Rodney King situation.
17:07
Speaker 5: That is a point of law for the judge to
17:09
Speaker 5: decide whether or not it was even legal under the
17:13
Speaker 5: authorities that the Trump administration used for them to federalize
17:17
Speaker 5: the California National Guard.
17:20
Speaker 2: There are only, I think a few hundred National Guards
17:23
Speaker 2: still deployed in LA. What kind of a decision could
17:28
Speaker 2: Judge Briar make? Could it be a broad decision with
17:32
Speaker 2: prospective application?
17:36
Speaker 5: He could say the National Guard is bound by posse
17:40
Speaker 5: comitatas and here's what Posse Commatadas needs. It means they
17:45
Speaker 5: can't do X, Y and z. So therefore it could
17:50
Speaker 5: be a very important decision for setting the tone elsewhere
17:55
Speaker 5: other places where pusse Comatadas applies. So it wouldn't strictly
17:59
Speaker 5: be binding on other states. It is a very important
18:03
Speaker 5: decision interpreting the Posse Commatatus Act, and there are not
18:08
Speaker 5: a lot of decisions under the Posse Coommatatus Act, So
18:11
Speaker 5: it would be very important to have a judge say,
18:15
Speaker 5: here's what we understand the Posse Commatatis Act allows and
18:20
Speaker 5: doesn't allow. I'll also say the mere fact that a
18:23
Speaker 5: judge was willing to get in there and render a
18:27
Speaker 5: decision on this issue, If indeed the judge is willing
18:30
Speaker 5: to do, that would be very important because a lot
18:34
Speaker 5: of the times you might find judges unwilling to address
18:38
Speaker 5: the nitty gritty of such a question and say, you
18:41
Speaker 5: know what, we're going to leave it to the administration
18:43
Speaker 5: to exercise its judgments here. So here is a very
18:47
Speaker 5: important national security matter in which a court is willing
18:51
Speaker 5: to hold hearings, entertain witnesses, listen to evidence, to weigh
18:56
Speaker 5: the actual meaning of possecommatatus and what the restrictions are
19:00
Speaker 5: on an administration that is trying to federalize troops and
19:06
Speaker 5: invoke other troops such as Marines, to engage in something
19:10
Speaker 5: that comes at least very close to the law enforcement activities.
19:14
Speaker 2: Do the same rules apply to the Marines as applied
19:18
Speaker 2: to the National Guard as far as possicomatatis is concerned.
19:22
Speaker 5: Yes, they do so all federal troops if the authorities
19:26
Speaker 5: are the same. Now, if the Trump administration was using
19:30
Speaker 5: the Insurrection Act, that would be a different matter. But
19:34
Speaker 5: given that they decided to proceed with ten USC. Twelve
19:38
Speaker 5: four h six for the federalization and for the Marines,
19:42
Speaker 5: it's the protective power, I will say that the case
19:47
Speaker 5: for suspending posse coomatatis is even weaker with the Marines
19:52
Speaker 5: because the protective power is an implicit not an explicit power,
19:58
Speaker 5: and any exception to post commatadis clearly has to be explicit,
20:05
Speaker 5: not implicit. So Congress has to have explicitly exempted the
20:12
Speaker 5: federal authority in question from possecommatadis in order for that
20:17
Speaker 5: exception to apply. And in the case of the Marine,
20:20
Speaker 5: since they were deployed primarily under the protective power. The
20:25
Speaker 5: authority for the deployment was implicit, not explicit.
20:29
Speaker 2: And is Judge Bryer's decision going to be even more
20:33
Speaker 2: important because President Trump is threatening to deploy troops similarly
20:40
Speaker 2: in other cities that he says are out of control
20:43
Speaker 2: with crime, and because of what's happening in DC right now.
20:48
Speaker 5: Well, with DC it is potentially a different story. So
20:53
Speaker 5: the Justice Department has argued that passcomatadis doesn't apply when
21:00
Speaker 5: the President invokes the National Guard in DC because the
21:04
Speaker 5: President is sort of in the position of the Adjutant
21:07
Speaker 5: General with regard to DC troops. I would myself question that.
21:12
Speaker 5: I think there are reasons why pascomatatis may still apply,
21:16
Speaker 5: and there are many reasons to think that it's not
21:18
Speaker 5: appropriate for troops to be involved in law enforcement, even
21:25
Speaker 5: in DC, but the legalities will be subtly different, and
21:29
Speaker 5: so they're going to be slightly different arguments that apply.
21:32
Speaker 5: In addition, in DC, we have the issue of takeover
21:34
Speaker 5: of the DC Police, and that's under the Home Rule
21:41
Speaker 5: legislation that is explicitly provided for under that legislation, and
21:48
Speaker 5: for thirty days, the president does have the ability under
21:52
Speaker 5: that legislation to take over the DC police in an emergency.
21:58
Speaker 2: President Trump was also talking about Chicago and New York.
22:03
Speaker 2: He's talked about New York before.
22:06
Speaker 5: So that would be back to the California situation. If
22:09
Speaker 5: President Trump tries, to, for example, take over the New
22:14
Speaker 5: York Police or the Chicago Police there, he will not
22:19
Speaker 5: have the home rule advantage that he has in DC,
22:22
Speaker 5: and he will not find himself in a very good
22:25
Speaker 5: legal posture there. He really doesn't have any basis and
22:29
Speaker 5: the control over the police is strictly reserved to the
22:32
Speaker 5: states under the Tenth Amendment. That's core Tenth Amendment doctrine.
22:37
Speaker 5: So it'd be very surprising if he would try to
22:41
Speaker 5: take over the police in a major city other than DC.
22:48
Speaker 5: I think that's something that any federal judge would reject
22:51
Speaker 5: very quickly. Now, as far as federalization of the National
22:56
Speaker 5: Guard in any other states, he will be in a
22:59
Speaker 5: state similar posture to California, which is why this California
23:04
Speaker 5: trial is so important. It will teach judges what Judge
23:09
Speaker 5: Briar is going through right now, and the evidence that
23:12
Speaker 5: Judge Briar is fifting through will be extremely instructive for
23:16
Speaker 5: federal judges in other jurisdictions as they inevitably wake possecommatadas
23:22
Speaker 5: issues in potentially the state of New York or the
23:25
Speaker 5: state of Pennsylvania or the state of Illinois. I think
23:29
Speaker 5: we're going to find a situation replicated, and clarity about
23:32
Speaker 5: the boundaries set by posscomatadis and what federal troops are
23:36
Speaker 5: permitted to do and not do will be extremely important
23:40
Speaker 5: in the coming weeks.
23:42
Speaker 2: Has the Supreme Court ruled in this area.
23:46
Speaker 5: While there's no Supreme Court decision on possecommatadis, there's a
23:50
Speaker 5: long line of Supreme Court decisions on related themes that
23:55
Speaker 5: I think have implications for interpreting possecomatatas. For example, the
24:01
Speaker 5: presence of troops in and around demonstrations may put a
24:06
Speaker 5: chilling effect on the ability to gather and assemble to
24:12
Speaker 5: protest the government. Now that's a core First Amendment right,
24:16
Speaker 5: and so what you find is that does tailing between
24:21
Speaker 5: the requirements of the Possecommatatis Act that says federal troops
24:25
Speaker 5: can't engage in law enforcements and the requirements of First
24:28
Speaker 5: Amendment doctrines that say people should be able to protest
24:34
Speaker 5: the government express their views freely assembled in the streets.
24:38
Speaker 5: So if troops are being used to chill free expression,
24:44
Speaker 5: that would be a violation potentially both of possecommatatis if
24:49
Speaker 5: they're engaging in law enforcement, and of the First Amendment.
24:52
Speaker 5: Or take Fourth Amendment doctrine for example, there's lots and
24:56
Speaker 5: lots of Supreme Court decisions on Fourth Amendment doctrine, and
25:00
Speaker 5: we know that there were Fourth Amendment issues implicated in
25:06
Speaker 5: the holding and detention of the veteran who was just
25:10
Speaker 5: seeking to go into the Bureau of Veterans' Affairs, who
25:15
Speaker 5: was held by the Marine. That is a core Fourth
25:18
Speaker 5: Amendment issue. If federal troops are not in a position
25:22
Speaker 5: to meet Fourth Amendment doctrines, are not in a position
25:27
Speaker 5: to read people their miranda rights, are not in a
25:30
Speaker 5: position to follow due process in engaging in detentions and
25:34
Speaker 5: potentially arrests, then they would be constrained in what they
25:39
Speaker 5: could do acting in a law enforcement capacity by the Constitution,
25:44
Speaker 5: not just by passcomatadis. So I think there is a
25:47
Speaker 5: lot of constitutional doctrine in and around postcommatadis that has
25:53
Speaker 5: implications in this area.
25:56
Speaker 2: I'm guessing that Judge Bryer's decision will be a Lene,
26:00
Speaker 2: thanks so much for joining me. Claire. That's Claire Finkelstein,
26:04
Speaker 2: a professor of law at the University of Pennsylvania. Coming up,
26:09
Speaker 2: we'll take a look at the Big Beautiful Bill. This
26:11
Speaker 2: is Bloomberg. Senate Democrats fanned out to their states this
26:15
Speaker 2: month to host Town Hall's arm with attack lines against
26:19
Speaker 2: President Donald Trump's signature legislative achievement, the so called Big
26:24
Speaker 2: Beautiful Bill. Democrats are trying to highlight the act's impact
26:28
Speaker 2: on voters, saying it will cut medicaid, benefit the rich,
26:32
Speaker 2: and make middle class life more expensive. One thing they
26:36
Speaker 2: haven't argued in all the months the Republicans spent laboring
26:40
Speaker 2: to pass the massive tax and spending law is that
26:43
Speaker 2: there's a section of the bill that violates the Constitution.
26:47
Speaker 2: My guest is David Souper, a professor at Georgetown Law,
26:51
Speaker 2: who's written about this in the Balkanization Blog. It's entitled
26:56
Speaker 2: some casual Unconstitutionality. David tell us about this section.
27:00
Speaker 5: In the law.
27:02
Speaker 6: Section twenty zero one, one of the President's One Big
27:07
Speaker 6: Beautiful Bill Act, funds the army and other military forces
27:13
Speaker 6: intervening against immigration for more than four years. The Constitution
27:19
Speaker 6: unfortunately limits appropriations for the army to know more than
27:23
Speaker 6: two years.
27:25
Speaker 2: So how was this missed?
27:27
Speaker 6: I don't know. The bill was drafted in a very
27:31
Speaker 6: secretive and partisan manner. Very few people were involved. Ordinarily,
27:37
Speaker 6: the military is funded through the appropriations process each year,
27:41
Speaker 6: so this doesn't become a problem. But here they gave
27:46
Speaker 6: an ongoing support of funds separate from appropriations to the army.
27:53
Speaker 6: And I'm guessing that the committee that handled that just
27:56
Speaker 6: doesn't understand that part of the Constitution tell us about.
28:00
Speaker 2: But the principles of federal appropriations law.
28:03
Speaker 6: Certainly, the Government Accountability Office has been assigned responsibility for
28:10
Speaker 6: overseeing appropriation's law by Congress. They have a multi volume
28:16
Speaker 6: manual out explaining all the principles of appropriation's law. And
28:21
Speaker 6: they have concluded many years ago that while it's okay
28:26
Speaker 6: to have a multi year appropriation to buy something for
28:32
Speaker 6: the military a tank or an airplane or something that
28:35
Speaker 6: may not be built within two years, that for actually
28:40
Speaker 6: funding the activities, operations salaries of the army, that that
28:46
Speaker 6: may not extend beyond two years.
28:49
Speaker 2: What did the founders make this distinction as far as
28:52
Speaker 2: the military is concerned.
28:54
Speaker 6: The Founders saw a military as being one one of
29:00
Speaker 6: the biggest threats to freedom. They talked a great deal
29:05
Speaker 6: about former republics that had been destroyed by their military,
29:10
Speaker 6: most prominently Rome, but others as well, and one of
29:15
Speaker 6: their greatest concerns is that could happen here. They preferred
29:20
Speaker 6: that we not have a permanent peacetime army. We've obviously
29:24
Speaker 6: rejected that advice a long time ago, but to make
29:27
Speaker 6: sure that the army doesn't become independent of the people's
29:31
Speaker 6: representatives in Congress, they made sure that all money had
29:36
Speaker 6: to be reappropriated at least every other year, so that
29:42
Speaker 6: if the army oversteps its bounds at the president's behest,
29:47
Speaker 6: that Congress can rein it. In ignoring that principle in
29:50
Speaker 6: giving the army a long term source of funds is
29:54
Speaker 6: not just unconstitutional, but it rejects that basic warning about
29:58
Speaker 6: civil liberties.
30:00
Speaker 2: Has this happened before and has it been thought over?
30:03
Speaker 6: This is a relatively novel thing. Ordinarily, defense appropriations are
30:10
Speaker 6: handled every year in the Annual Appropriations Bill, and it
30:14
Speaker 6: hasn't been thought of. But this is giving a permanent law,
30:19
Speaker 6: in this case, one that lasts for over four years
30:22
Speaker 6: to fund the army in the same way that permanent
30:25
Speaker 6: law funds social Security or Medicare. We don't usually think
30:29
Speaker 6: of the army as being like social Security and Medicare,
30:33
Speaker 6: but in the law this summer, President Trump and Congressional
30:37
Speaker 6: Republicans decided to put it on that same level.
30:40
Speaker 2: Has the Supreme Court ruled in this area.
30:43
Speaker 6: It hasn't ruled squarely on this because it's not clear
30:49
Speaker 6: who would have the standing to bring a lawsuit. And
30:53
Speaker 6: I hope we have more respect for our constitution than
30:57
Speaker 6: to think it only has to be followed when someone
31:00
Speaker 6: is at risk of being sued. I hope we think
31:02
Speaker 6: following the constitution is a generic value. But this does
31:07
Speaker 6: raise questions.
31:08
Speaker 2: Let's just say they saw this and said, oh, we
31:11
Speaker 2: have to cure this. Could they just sever that part?
31:15
Speaker 6: The Supreme Court has said that you several pieces from
31:19
Speaker 6: a bill. If it believes that Congress would have wanted
31:23
Speaker 6: the rest of the bill enacted without the unconstitutional part.
31:27
Speaker 6: My guess is the Supreme Court would say that Congress
31:30
Speaker 6: would prefer the rest of this bill without section two
31:34
Speaker 6: zero zero one one and would cut it out. But
31:38
Speaker 6: we don't know, and at present, it's not clear that
31:42
Speaker 6: this is going to get to the Supreme Court.
31:44
Speaker 2: So you're right, how lovely it would be if Justice
31:46
Speaker 2: as Thomas and Gorsuch led the Court to declare Section
31:50
Speaker 2: twenty zero one one unconstitutional and then remind Congress the
31:54
Speaker 2: Constitution doesn't empower the Court to blue pencil duly enacted
31:58
Speaker 2: statutes containing unco constitutional provisions. Why did you choose Justices
32:03
Speaker 2: Thomas and gorsicch.
32:04
Speaker 6: Well, just as Thomas and Gorsich have been leading an
32:08
Speaker 6: effort on the Court to say that the Court should
32:12
Speaker 6: not sever unconstitutional provisions of bills, that if Congress passes
32:18
Speaker 6: legislation that is unconstitutional, the Court should simply say so
32:23
Speaker 6: and not say, well, other parts of it are still enforceable.
32:27
Speaker 6: They believe that the judicial function is simply to strike
32:30
Speaker 6: these things down. And this is an area where if
32:34
Speaker 6: they were to strike it down, the entire one Big
32:37
Speaker 6: Beautiful Bill Act would be deemed unconstitutional and unenforceable. I
32:42
Speaker 6: don't doubt that Congress would then repass it without section
32:46
Speaker 6: two zero zero one one. But Congress should be held
32:51
Speaker 6: to passing only constitutional laws.
32:54
Speaker 2: So Article one, Section eight, clause twelve, is this something
32:58
Speaker 2: that senators and representatives should be aware of.
33:02
Speaker 6: It's not hidden the Constitution itself is very brief, only
33:07
Speaker 6: a little over four thousand words. Every member of Congress
33:11
Speaker 6: has taken an oath to obey it. I hope they're
33:13
Speaker 6: not taking an oath to obey a document they haven't
33:16
Speaker 6: read all the way through, and the terms of it
33:19
Speaker 6: are very clear. We all know what the army is,
33:21
Speaker 6: we all know what two years are, we all know
33:23
Speaker 6: what an appropriation is, so there's not much ambiguity here.
33:27
Speaker 6: There certainly are a number of things in this law
33:30
Speaker 6: and elsewhere that people could reasonably argue are unconstitutional, and
33:35
Speaker 6: others might disagree, but this one could not be clearer.
33:39
Speaker 2: But most likely nothing is going to be done about it.
33:43
Speaker 6: I'm afraid not. I would hope that Congress would set
33:47
Speaker 6: an example for the country as the series is the Constitution.
33:51
Speaker 6: Repeal section two zero one one past something else if
33:55
Speaker 6: they want to that complies with the Constitution. But I
33:59
Speaker 6: think they're going to be content to let this unconciucial
34:02
Speaker 6: loss day on the books. And that's a tragedy.
34:05
Speaker 2: It would be surprising if this got any traction, but
34:09
Speaker 2: we'll keep an eye out. Thanks so much, David. That's
34:12
Speaker 2: Professor David super of Georgetown Law and that's it for
34:16
Speaker 2: this edition of The Bloomberg Law Show. Remember you can
34:18
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34:22
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34:25
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