← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Is The National Guard Coming To Your City?
00:57:52
The legal loopholes that enabled Trump to call in the troops, and what can stop him.
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C
Hi, I'm Dahlia Lithwick and this is Amicus Slate's podcast about the courts and the Supreme Court and the law. Before we kick off the show proper, I really want to give a huge shout out to Mark Joseph Stern, who worked tirelessly the last couple of weeks so that I could have a little bit of time off this summer. And hello, I'm back, somewhat rested, somewhat restored. Very, very happy to be with you again. Okay, onto this week's show.
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National Guard troops deployed in D.C. amid Trump's crime emergency will now be allowed to carry weapons.
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B
Trump has already sent 2200 National Guard members to the nation's capital, where police say violent crime is actually at a 30 year low to down 26% from last year.
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A
The president says Democratic run cities are facing a crime emergency. So the line is that I'm a dictator but I stop crime. And he says he may do the same in places like Baltimore, New York and Chicago. So a lot of people say, you know, if that's the case, I'd rather have a dictator. But I'm not a dictator. I just had to stop crime. This is not about fighting crime. This is about Donald Trump searching for any justification to deploy the military in a blue city in a blue state to try and intimidate his political rivals. What he is proposing at this point would be the most flagrant violation of our constitution in the 21st century. The state of Illinois is ready to stand against this military deployment with every peaceful tool we have. We will see the Trump administration in court.
- [02:53]
C
There are so many chilling new developments as we roll on into this Labor Day weekend. But this one feels especially seismic for people who think in terms of checks and balances, states rights and the rule of law. The president's deployment of the National Guard in the District of Columbia, ostensibly to respond to an existential crime wave that isn't happening, but also to participate in immigration enforcement and domestic policing. Some of this was trial ballooned in Los Angeles earlier this year. We covered it on the show. But this past week, the president's despotic escalations, well, they escalated. National Guard members deployed to the Capitol shifted to carrying weapons. The president threatened to unleash yet more armed military forces on American cities, including Baltimore and Chicago. And on Monday, President Trump signed a new executive order expanding the use of the National Guard across the country. The order is obliquely titled Additional Measures to Address the Crime Emergency in the District of Columbia. It purports to use the same legal authorities that allowed for the deployment of the guard in D.C. to, quote, Quell civil disturbances across the country. Whether, like DC's alleged crime emergency, such civil disturbances would actually have to exist for Trump to pull this move remains to be seen. But as the president said on Tuesday.
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Not that I don't have the right.
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To do anything I want to do. I'm the president of the United States. If I think our country's in danger and it is in danger in these.
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B
Cities, I can do it.
- [04:36]
C
Well, can he do it? On this week's show, we are going to dig into what's at stake in Washington, D.C. chicago and Blue cities around the country, what the law has to say about it, and also what's to come if President Trump, Stephen Miller and Pete Hegseth are allowed to trammel statutory and constitutional constraints on police work. Elizabeth Liza Goytin has been ringing alarm bells for a long time about the dangers of allowing the military to do domestic police work. She is senior director of the nonpartisan Brennan Center's Liberty and National Security Program. Goitein is a nationally recognized expert on presidential emergency powers, government surveillance and government secrecy. Before jo the Brennan center, she served as counsel to Senator Russ Feingold, chair of the Constitution Subcommittee of the Senate Judiciary Committee, and as a trial attorney in the Federal Programs Branch of the Civil Division of the Department of Justice. Liza, I have been really desperate to talk to you for a couple of weeks now. Welcome to Amicus.
- [05:41]
B
Thank you so much for having me.
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C
And I wonder if just at the most sort of abstract level, we could just open with a bracing reminder from you of what it is the framers of the Constitution worried about when it came to allowing the military to engage in domestic policing.
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B
Yes, that is such important context, because what we are seeing from this president is an assault on the core principle and tradition against using the military as a domestic police force. And the reason for this principle, in some ways is really obvious. If the president can turn the army inward against the people of this country, that can be an extremely powerful tool of oppression and tyranny. And at a minimum, it creates a chilling effect on the willingness of the people of this country to speak out and to express dissent or disagreement with the policies of the person who's commanding the soldiers who have been deployed into their streets. So this is fundamentally at odds with democracy and with individual freedom. And that's why we had this principle. That's why we had this tradition. Unfortunately, the law that enshrines this principle, the Posse Comitatus act, does have some loopholes, particularly when it comes to the National Guard and particularly when it comes to the District of Columbia. And so what we are seeing is that the President is trying to exploit these loopholes in a way that previous presidents haven't done. They have refrained from exploiting, exploiting those loopholes in this way. And so, despite its weaknesses, the Posse Comitatus act has served as a very powerful norm, but Trump is now shredding that norm.
- [07:37]
C
Two kind of vital things that you're saying. One is sometimes when we look at the sort of ideas that animated the framers and their concerns, they just seem archaic. They do not map onto anything that we could really connect to liberty as we could conceive of it in 2025. And what you're saying is actually this is exactly the same concern that was embodied, you know, first in the Constitution than in Posse Comitatus. This is a sort of bone deep, recognizable sense of what it is to be free. The other thing that I just want to pull on before we get to the sort of statutory and other guardrails, is if you could just very briefly for listeners who, again, are hearing a lot about this, but, but don't know the terms. Who is the military, who is the police? The military can engage in some forms of what we think of as police work. They're barred from others. Can you just try to help us understand? Because I think for a lot of us, we're just looking at a bunch of guys in uniforms and it's hard to be crystal clear, Liza, about the categories.
- [08:49]
B
Right. So we have the active duty armed forces, you know, the army, the Navy, the Marines. Right. They are professional soldiers. The active duty armed forces are always under the President's command and control. The National Guard is the modern incarnation of the state militias that existed at the founding. They are under state command and control. And actually it's not just state because there are National Guard forces in federal territories as well. So. So in Puerto Rico, in Guam, in the US Virgin Islands, these National Guard forces are under local control unless or until called into federal service. So it is the governor who commands these forces unless they have been federalized. And there are various statutes that allow the President to federalize the Guard, at which point the President assumes command and control and the Guard forces become for all practical purposes, part of the federal armed forces of the United States. And they can be used, used and increasingly have been used in recent decades to deploy overseas, shoulder to shoulder with the active duty armed forces to fight on behalf of the United States. Now, ordinarily, when they haven't been federalized, the National Guard is used for very critical local purposes. Particularly relevant right now, the Guard is often on the front lines in responding to natural disasters. Hurricane response. Right. We're in the middle of hurricane season. Members of the National Guard during the week, they have day jobs, they are teachers, they are nurses, medical professionals, they own stores, they perform all kinds of vital functions within their own communities. And then they can also be called into service by the governor to perform these sort of life and death functions of responding to crises such as natural disasters. They were on the front lines in responding to COVID 19 during the height of the pandemic and things like that.
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C
You suggest to me that we know when something is policing and when something is this other thing. And I would love for you to walk me through how we know that.
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B
That's a great question. If you look at the Posse Comitatus act, what it prohibits is using the military as a posse Comitatus. That's not very helpful. Right? That's, that's Latin. What it basically means is that the military can't be used for law enforcement purposes. But it's not always clear what is a law enforcement purpose and what isn't a law enforcement purpose. And frankly, this administration has taken an incredibly cramped view of what constitutes law enforcement being performed by troops. So we have to look at how the courts have interpreted this and why the courts haven't interpreted it that way. And basically what the courts have said is that Anytime the use of the military pervades civilian operations or when the military is used in a way that subjects civilians to an exercise of military power that is compulsory in nature. And really, if you look at this case law, the court was particularly concerned with face to face interactions between soldiers and civilians. That's when you get the chilling effect. That's when you get the potential for the military to be used in ways that constrain full participation in our democracy that can constrain the freedom to express dissent. When you have these actions by the military that directly affect the liberties of civilians, that's when you trigger the concerns that underlie the posse Comitatus act. And when this administration says things like, oh, well, if the soldiers are protecting federal property, then the posse Comitatus act just doesn't apply. That is not consistent with either the purpose of the posse Comitatus act or the case law interpreting the act. As long as you have soldiers exercising this power over civilians to compel them to do certain things or not do certain things, that is when the posse Comitatus act is triggered. And that's when we have those concerns.
- [13:19]
C
Okay, so the national guard, you know, can't detain, but they can arrest, but they can't search, but they can ask questions. Like those are sort of objective questions about behaviors. What you're saying is at root there is a subjective question about whether I feel as though they are doing domestic policing.
- [13:42]
B
Well, no, I wouldn't say it's subjective. I think it's whether or not somebody has been subject to a power that is compulsory in nature is fairly objective. And I don't think there's any question when a member of the national guard who has been Federalized or a U.S. marine temporarily detains someone. Right. The question is, is that person free to go? And I don't think anyone would say in these cases that that person is free to go. I don't think the marines are saying, if you would be so kind, why don't you hang out here a minute? But if you have somewhere else to be, go ahead. Right. That's not what's happening. There is a compulsory power that's being exercised when a person is temporarily detained. So the line the administration is trying to draw between a temporary detention and an arrest doesn't matter for purposes of the posse Comitatus act as that law has been interpreted by the courts.
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C
Okay, so now I think we really do have to unpack. We've said posse comitatus 40 times in a couple minutes, and I think we should Unpack, pack what is, as you've said, a kind of complicated network of, you know, statutory and constitutional authorities, all of which play into this debate that the President is kind of charging through right now. And so, you know, we hear references to the Insurrection act, there's anti commandeering provisions of the 10th Amendment. Can you give us a sense of where you would start? And I think you're going to say Posse Comitatus to map out what the guardrails are that people need to know about in this statutory and constitutional structure.
- [15:23]
B
Sure. So I want to start with first principles. And the first principle is that the President normally should not be using the military to engage in domestic law enforcement. That principle is enshrined in the Posse Comitatus act, which prohibits federal forces from participating in law enforcement unless it has been expressly authorized by Congress or in the Constitution. Now, if you read the Constitution, it doesn't give any powers to the President to deploy the military for law enforcement. So really there aren't any express exceptions in the Constitution, But Congress has enacted several. And the most potent by far is the Insurrection Act. That is the primary statutory exception to the Posse Comitatus Act. But in addition to the Insurrection act and the exceptions Congress has passed, there are also some loopholes and some gaps. And the main one is this general rule that the Posse Comitatus act does not apply to the National Guard unless the National Guard has been called into federal service. And that is because the Posse Comitatus act is primarily concerned with potential abuses of the military by the President. And because the National Guard in every case except for Washington D.C. is not under the President's command and control unless it's been called into federal service. The Paste ditatus Act doesn't apply if the Guard hasn't been federalized. We have a couple of pretty big loopholes here. The first loophole is that the D.C. national Guard, unlike every other National Guard of every other state and federal territory, is always under the President's command and control. Now, you might think that that would mean that the national guard in D.C. is always subject to the Posse Comitatus Act. But the Department of Justice has a long standing view that as long as the President hasn't formally called the D.C. national Guard into federal service, which he basically never has to do because he already has command and control of the D.C. national Guard, the Posse Comitatus act doesn't apply. And that is a huge loophole that would allow the President to use the D.C. national Guard as a domestic police force pretty much whenever he wants now to be clear. This theory of the Department of Justice hasn't been tested in the courts, but it has been the understanding, the longstanding understanding and practice of the executive branch. That's the first loophole. Another loophole is that there is an intermediate status, a hybrid status for the National Guard in between what's called state active duty status, which is when the Guard is under the Governor's command and control and is performing a station state mission or a state function funded by the state. And on the other end of the spectrum, when the Guard is called into federal service as performing federal missions under the President's command and control, federally funded, et cetera. In between we have hybrid status under Title 32, in which the Guard remains as a legal matter under the command and control of the state governors. But the Guard may be performing a federal mission, including missions or operations requested by the President or the Secretary of Defense. Because the National Guard in this hybrid status remains as a legal matter, at least nominally under state command and control, it is not subject to the Posse Comitatus Act. But because the Guard is performing a federal mission, as a practical matter, the Guard may be following the direction of the President or the Secretary of Defense in very significant ways and really may be effectively under federal control, even though at least nominally and legally the Guard remains under state command and control. And that creates a very significant and concerning loophole in the Pasa Comitatus Act.
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C
And we are back with Liza Goytin of the Brennan Center. So if we can go back to la, when Trump federalized the National Guard there and then sent in the Marines, what was the legal authority being cited for both those moves?
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B
Liza in Los Angeles, The President federalized 4,000 members of the California National Guard under 10 USC 124 06. And I'm sorry, I wish it had a catchy name like the Insurrection act or something like that, but that's what it is. It's section 12406 and that's a law that allows the President to federalize the National Guard if there is a rebellion or an invasion or if the President cannot enforce the laws of the United States without federalizing the National Guard. And in that case, the President said there was a rebellion. The courts kind of gave that the back of their hand when it was challenged by Governor Newsom. But the president also, in litigation, took the position that he was unable to execute federal law, in that case, immigration using the regular forces. That's the language of the law. So that he had to federalize the National Guard in order to do that. And he was pointing to the protests. He was saying that the protest over ICE raids rendered him, you know, for purposes of the statute, unable to enforce immigration law under the terms of the statute. Now, if you actually look at the facts on the ground, ICE conducted dozens of raids while the protests were happening. And in fact, the administration did not point to a single raid that was thwarted by the protests. But the Ninth Circuit held that it was bound by an 1827 Supreme Court case to give the President significant deference in the President's assessment that he could not execute immigration law without federalizing the National Guard. And so the Ninth Circuit upheld that use of the statute. The President also deployed the US Marines in Los Angeles. And section 12406 only authorizes the federalization of the Guard. It does not authorize deployment of active duty armed forces. So in that case, what the President was relying on was a claim of inherent constitutional power to deploy the military to protect federal property, personnel, and functions. This is an executive branch theory. Again, not something that has been squarely endorsed by the courts. There are a couple of Supreme Court cases dating from the 1890s that mention a version of such a power, although that was in a part of the opinions that that is not binding. But this is really an executive branch theory that has expanded over time to the point that the administration now takes the position not only that troops can be deployed to protect federal personnel, property, and functions, any federal function, anywhere that function is happening, but also that the Posse Comitatus act just literally doesn't apply when that particular power is being invoked. And under this reading, I mean, the. It's hard to know when the Posse Comitatus act would ever apply. Right? Because there are federal functions taking place everywhere at all times. A postal carrier walking down the street, delivering the mail is performing a federal function. So this is an executive branch theory that would just completely swallow the rule. And this theory has not. Has not yet sort of wended its way through the courts in California. But it's very, very dangerous. And I'm hoping the courts will nip it in the bud.
- [24:24]
C
So instead of being scared of one thing, you're saying be scared of two things. Because they.
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B
Did I say two. Cause I meant ten.
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C
Oh, I know. We're getting there. Don't you worry.
- [24:33]
B
Okay.
- [24:34]
C
But I think that one of the things that has happened in the conversation about what happened in la, and you've just flicked it one, which is it's still in the courts. And so we actually still don't know what the courts are thinking and certain what the Supreme Court is going to do and say. The other thing that happened, of course, is that it all just went away and Guardsmen were pulled out and Marines were pulled out. And, you know, there is this version of the story that is like, nothing happened, no harm, no foul. But because everything is unsettled now for the reasons you just laid out, doesn't mean this has been resolved. It just means we've moved to D.C.
- [25:15]
B
Well, the crisis in Los Angeles hasn't ended. I mean, there are still National Guard forces in California that are in federal service and that are deployed. I mean, the numbers have gone way, way down. So at this point, I think we have a couple of hundred National Guard forces deployed in Los Angeles, but those are Guard forces that are not available to perform the job that they are needed to perform in California. And they are in the streets of Los Angeles, essentially acting as a domestic police force. It only seems to be less of an issue in comparison to the 4,000 guard members that were called into federal service previously. But if you rolled back the clock to before this administration, and you imagine a situation in which a president federalized, you know, two or three hundred National Guard forces and deployed them in response to protests and on a claim of sort of needing them to enforce immigration law in the streets of our cities, that would set off alarm bells, as it should. Right. So I don't think we should be complacent in any way simply because the number of Guard forces was so much higher a few weeks ago and the litigation is ongoing.
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C
Do you want to tell us for a minute the status of the litigation so we can know what we're watching for?
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B
Okay. The Ninth Circuit did address this question of whether the California Guard could be called into federal service. And so for the time being, that is not at issue before the District Court. But there was a trial recently on the question of whether the Posse Comitatus act was violated or has been or is being violated in Los Angeles. And that question actually lumps together a few questions, including whether the Posse Comitatus act can be a basis for civil litigation at all. Because if you look at the law, it's a criminal prohibition. It provides criminal penalties for violations. And so there is an open question about whether or not it can also be used as a basis for a civil lawsuit. There is a question of whether Section 12406, this federal statute that I mentioned, the Ninth Circuit, held that it could be used to federalize the National Guard. But the question of whether the Guard can then engage in law enforcement activities, in other words, is 12406 an exception to the Posse Comitatus Act? That question is before the district court. If you look at the statute, it certainly doesn't expressly say that it operates as an exception to the Posse Comitatus Act. So that is really a question of first impression for the district court. There's a third question of whether the Posse Comitatus act applies when the purpose of deployment is to protect federal personnel, property, and functions, in this case, to protect a law enforcement function. And then finally there's the question of whether, as a factual matter, what the National Guard has been doing on the ground includes law enforcement activities. And again, under the case law, that is, you know, activities that exercise some kind of compulsory power over civilians. There's evidence that troops have engaged in things like temporary detentions, which really fall squarely within the prohibitions of the Pasa Comitatus Act.
- [28:29]
C
So one of the things that I'm hearing you say is that some of this is just laying the groundwork for what then happens in D.C. and D.C. represents an escalation on a whole bunch of fronts. And one of the things that I guess D.C. really represents, which is viscerally chilling for folks watching, is that they're carrying weapons. NBC reporting that there are forces walking around with M17 pistols and M4 rifles. And again, I think it goes back to this. Well, you know, soldiers carry guns, so that's what they do. But it seems like this is a doubling down that isn't just feelings ball. Something is happening. And I think it goes to some of your first answers about what we fear.
- [29:20]
B
Yeah, I mean, that's relevant. The National Guard being armed in D.C. is really problematic for several reasons. I mean, one is it goes back to this issue of what is a prohibited law enforcement activity under the Posse Comitatus Act. Now, understanding that the Department of Justice believes the Posse Comitatus act doesn't apply in this scenario, but still, what that law is concerned with, again, is the exercise of sort of compulsory force essentially over civilians. And when the guard is armed, that really adds to this sense of compulsion. Right, that people are being forced to do certain things by the military. It also adds to the chilling effect of having soldiers deployed in the streets, which is something that the Posse Comitatus act is concerned with. That is one of the harms of having soldiers engage in law enforcement activities. And finally, it contributes to the public safety concerns. One of the reasons why we don't have soldiers acting as a domestic police force in this country is because soldiers are trained to fight and destroy an enemy. They are not trained in municipal policing. They are not trained to deal with civilian populations in ways that deescalate and respect constitutional rights. And so if you throw soldiers into this unfamiliar role, with their very different training and experience and mission, that creates significant public safety risks, not just for civilians, but for the soldiers themselves. Because in that moment where they are in a tense situation or a situation that, you know, might even involve violence, are they going to fall back on their combat training? Right. I mean, that is really one of the main concerns here. And it is something we have seen play out in the past. When troops have been deployed domestically in this country. And when the troops are armed, that takes that danger and that public safety risk to an entirely different level.
- [31:27]
C
So the flip side of that coin, in addition to having, you know, military forces working alongside the police, we also have the police working. Working alongside military forces. Last week, the president invoked a statutory emergency power to requisition the services of the city's Metropolitan Police Department. So now we have regular police working alongside, you know, armed federal troops. That seems to raise a similar subset of problems to the ones you just laid out, but kind of in reverse, where we have police performing what. What feels like quasi military action, and then the guard is doing policing, the sort of conflation seems to be, if I may say, bringing out the worst in both.
- [32:15]
B
Yeah. And it's not just the Metropolitan Police Department, the local police. It's also the federal agents who have been deployed. There have been 500 federal law enforcement officials from Department of Homeland Security and the Department of Justice who have been sent all over the city. They are also working, you know, alongside the military here. And what we're seeing, as you're referring to, really, is a blurring of the line between military and civilian law enforcement. And whether or not you believe that the deployment of the military in D.C. has in some way emboldened federal agents or local Police, whatever the cause, some of the most disturbing actions that we've seen on the ground in D.C. has in fact come from civilian law enforcement. And especially, I mean, I think a lot of us saw that video of six masked armed federal agents tackling a delivery driver, an unarmed delivery driver, right. Tackling him to the ground, using a stun gun on him. Federal agents are pulling people over when they're just walking down the street and to question them, they've set up checkpoints on commercial corridors where they're stopping cars. There are reports that they are stopping every car in some cases and that would be a violation of the Constitution under Supreme Court precedent. So there's been a lot of behavior on the part of civilian law enforcement that is extremely disturbing here. That is one thing that you're concerned about when you have troops deployed side by side with civilian law enforcement. Are you blurring the line in a way that kind of goes in both directions?
- [33:55]
C
I wonder if you could talk for one moment about the way this story is being told by the, you know, media is that there is this bizarre now two tracks of how this is playing out in the District, which is the beautification, right. We're mulching cherry trees, we're picking up trash. You know, completely benign conduct that seems like this is not anything to get alarmed about. And at the same time, just like descending on Union Station, right. And doing, as you say, what looks like absolute coercive policing. So there is a strange way in which all the loopholes in this sort of map that you've described and the efforts to just careen through the loopholes means that you have this weird split screen lysa where some of the Guardsmen are doing something that, that seems utterly trivial and others are doing stuff that looks absolutely violent and coercive.
- [35:01]
B
Yeah. It seems trivial to, to have, you know, members of the National Guard sodding the National Mall. But you also have to look at this in context. Look at the countries where leaders spend billions of dollars turning their capitals into a show place and gilding the capital. These something in common. Right. And it's not that they're thriving democracies. I don't think that local government in D.C. would object to getting federal dollars to, you know, I don't know, clean up graffiti in the city or, or what have you. I think they would want to prioritize and they would want to have a bigger budget to address crime through thoughtful long term solutions. Right. Which is something that D.C. has been focused on for a while and which has had, you know, significant impact. But instead what we're seeing is Congress trying to cut a billion dollars from DC's budget and, you know, threatening to override DC's gun control laws, which is obviously, those are obviously important tools in trying to control crime, those gun control laws. So I don't think that the local government in D.C. would object to you federal assistance and support in some actual, common sense, effective, empirically tested measures to control crime or, you know, to spruce up the city a little bit. Although, you know, that's not going to be a $2 billion priority for the city. What we're seeing from this administration is about something else.
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C
We are going to take a short break.
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A
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- [38:14]
C
And now let's return to my conversation with Liza Goytin. So while the National Guard mulches the mall, Trump turned his attention to other cities. As I mentioned, he's talked about Chicago, Baltimore and New York as cities he'd like to quote go into. Next, let's listen to Illinois Governor J.B. pritzker's reaction to that.
- [38:40]
A
Donald Trump wants to use the military to occupy a US City, punish his dissidents and score political points. If this were happening in any other country, we would have no trouble calling it what it is, a dangerous power grab. Mr. President, do not come to Chicago. You are neither wanted here nor needed here.
- [39:07]
C
That is a pretty resounding hell, no. But what do you think the president is going to invoke in order to say that he doesn't care that the governor of Illinois says, no, don't come?
- [39:19]
B
So the president cannot replicate what he has done in D.C. in Illinois, he just couldn't do that. Under the relevant legal authorities in D.C. he was able to deploy the D.C. national Guard because he has command and control over the D.C. national Guard, and he was able to ask governors from other states to send their guard forces into D.C. because D.C. is not a state, it is a federal territory. It would be very different in Illinois, where the president doesn't have command and control of the Illinois National Guard as a default, and he could not ask governors to send their Guard forces into Illinois without the governor's consent, because under the Constitution, states are sovereign entities with respect to one another, and so one state cannot invade another state even if the president asks them to. Right. As long as the Guard force remains, as a legal matter, under state command and control, then those Guard forces are state officers, and they cannot enter another state without that state's consent. What that means is that if President Trump wants to deploy Guard forces in Illinois, he is going to have to federalize them, and that means he has to rely on a federal statute that authorizes federalization. There is no federal law that authorizes federalizing the National Guard for local crime control. It doesn't exist even under the Insurrection act, which is probably the broadest authority that a president has to deploy the military domestically. If the president wants to use the military to execute the law, that has to either be a federal law or it has to be a state law that protects the constitutional rights of a class of people. Basically, civil rights law law. Those are the laws that the president can use the military to enforce under the Insurrection Act. So local crime is never going to be a basis for the president to federalize the National Guard and to deploy troops to enforce the law. What Trump might do is change his tune once he gets into court and say that this is not about local crime, this is about enforcing immigration law law, which is what he did in Los Angeles. In Los Angeles, he had the same constraints. He doesn't control the California National Guard as a matter of default. He can't send other Guard forces. He can't ask governors of other states to send their Guard forces into California. So he had to federalize the Guard there. And he relied on a Law 10 USC 12406, that authorizes him to federalize the National Guard to execute federal law when necessary. So he might try to do something similar in Illinois. The problem is there aren't currently mass protests in Chicago against ICE raids, and that was the pretext in California. So he'll need another pretext. And it's not clear what he would point to or what he could point to. He might try to say that the fact that there are sanctuary policies somehow interferes with the execution of federal law. The courts have heard challenges to these sanctuary policies, and one of the things that they have emphasized, emphasize is that there is a distinction between what these policies do, which is withhold assistance from federal law enforcement, and actual obstruction of federal law. And sanctuary policies fall into the former category that is protected by the 10th Amendment. Under the 10th Amendment, the President cannot force, coerce states into using their local law enforcement or their resources to execute federal law or to assist with the execution of federal law. That would violate the Constitution. So if the President tried to rely on that, he would run into some 10th Amendment problems. So it's not clear then. I'm not being Pollyanna ish about this. President Trump will, if he wants to do this, he'll try to find a legal hook.
- [43:26]
C
So now we're at Monday's quote, unquote, crime emergency executive order, because, of course, it purports to apply to DC but then it claims to be expanding the authority to use these arguments and to use forces nationwide. It does sound like the President is standing up his own militia to use domestically for whatever he says is, quote, unquote, civil unrest. But what does the law have to say about this? Because, you know, even the pretexts that were trotted out in LA and DC Certainly don't seem to exist in Baltimore, say. Or is this all not a law question? Is this just an executive order that, you know, is a push, push, push, Overton window that's meant to desensitize all of us to the idea of, you know, armed military folks walking around on the streets of big cities?
- [44:24]
B
The executive order has a couple of very disturbing provisions relating to the National Guard. First, it establishes a specialized Unit within the D.C. national Guard, subject to activation under Title 32, this hybrid authority that is dedicated to ensuring public safety and order in the nation's capital. In any other place other than D.C. that would be a violation of the Posse Comitatus act for the President to direct the National Guard to do this. Because by necessity, if you have a unit of the National Guard that is devoted to ensuring public safety and order, that is going to involve law enforcement activities. So the only way that this could pass legal muster is through this loophole in the Posse Comitatus act for the D.C. national Guard. And even if it doesn't violate the letter of the Posse Comitatus act, it definitely violates the spirit having a standing unit of soldiers under the command and control of the President, whose purpose is essentially law enforcement. And this is a permanent unit. It seems that these National Guard forces are going to be out there enforcing the law under the President's command and control. I mean, that is everything that the Posse Comitatus act was intended to prevent. Separately, the Executive Order directs the Secretary of Defense to ensure that each state's National Guard forces are trained, equipped, and available to assist in quelling civil disturbances and ensuring the public safety and order. The President does have significant authority over National Guard training under the law, with the idea being that if the President needs to call the Guard into federal service for, you know, overseas deployments or other federal missions, it's important that the Guard be ready for that. Still, this part of the order is highly irregular and deeply concerning. Quelling civil disturbances and ensuring public safety and order are the responsibility of state and local law enforcement. Except in the most extreme instances. The President Confederate federalized Guard forces for those purposes only. If he invokes the Insurrection act or potentially section 12, 406 of title 10. And that has happened only 30 times in the nation's history. Before Trump federalized the Guard in Los Angeles, it hadn't happened for 33 years. So Trump wants to force governors to prepare their Guard forces for an activity that they should almost never be engaged in. And the concern here is, you know, if you build it, they will come, right? If you make this sort of part of the integral mission and training of the Guard forces, it is that much more likely that Guard forces are going to be used for this purpose that they really should not be used for. The Executive Order also directs the Secretary of Defense to create a standing quick reaction force of National Guard members who are ready to deploy nationwide. If the President wanted to deploy this force in states under Title 32, right. That's its hybrid status. The governor of the state where the force was being deployed would have to consent. This is because, again, as we discussed, the governor of one state cannot constitutionally invade another state, regardless of whether they're acting as part of a quick reaction force, regardless of whether they're acting at the request of the president, that would be unconstitutional. So in order to make use of this force in a state where the governor wasn't willing, the president would again have to federalize the National Guard. And that means the president would have to have some statutory authority to federalize the National Guard. There is no statutory authority to use the Guard for local crime control.
- [48:10]
C
You know, as long as I've been reading you and listening to you, Liza, you've been calling for clarification and reforms to things like the Insurrection act and to Posse Comitat status and all the other loaded guns that have been left lying around. I think you've often run into the problem that there is just not a lot of civic energy or attention focused on these kinds of reforms. And I'm kind of guessing a lot of listeners right now are saying, ugh, it doesn't matter what could have been reformed back then or what the law said, because they were going to find a way around it. Right. Authoritarians going to authoritarian. But it's actually kind of important to think about and to strategize for better outcomes, even right now, maybe especially right now. And so I would love to hear from you if dare to dream. When Congress flips, the presidency flips. And before we hit snooze on these issues once again, what is your to do list, Liza, of how to think about the potential for sending the military in to do domestic policing? All these loopholes that we have talked about today. What do you want us to learn from this moment as kind of your checklist of reforms we have to take very seriously next to time?
- [49:23]
B
I think one of the things that we need to do is to reform the authorities that allow the president to deploy the military domestically or engage in other emergency actions to make sure, first of all, that we're not giving the president authority to do things that he should never be allowed to do. Right. I mean, that's just the baseline is let's do some, you know, constitutional housekeeping here and go through some of these laws to figure out where they give authority that the president simply shouldn't have. But in cases where there's authority that a president might need in a really extreme scenario, I think Congress could do a better job of defining what those scenarios are without micromanaging it. Right. I mean, Congress can't predict every emergency that can happen, but Congress can certainly set forth some principles to help define what constitutes an emergency and what doesn't. Congress can bolster its own role as a check. And I don't mean an after the fact check by virtue of Congress stepping in and passing a law to prohibit the President doing what the President's doing. That is something Congress can always do. What we have seen in this administration is that Congress is not stepping up to that responsibility. So instead we can build in a check into some of these authorities where the authority itself lapses, maybe after a particular period of time, if Congress hasn't affirmatively acted to extend that authority, that forces Congress to make a decision about whether to actively endorse these actions or not. So that is a protection. Now, it's not a. It's certainly not a panacea. There are going to be cases where for political reasons, Congress is supporting actions it shouldn't be supporting, but I think that would be a step in the right direction. Another thing is that the courts need to be very thoughtful about when and how they exercise deference to the President. Deference is appropriate in situations where the Executive branch has special expertise, and deference may be appropriate in situations where it truly is a political calculation that the President is making. But courts have gone too far, I would argue, in the direction of saying that they cannot review the President's actions at all in situations where really what they. They ought to be doing is giving some deference to actual expertise, where that expertise is being exercised. And Congress is too quick to describe something as a political matter, when in fact it's a legal matter and it's a matter that impacts the rights, the legal rights of Americans. So I do think that courts need to take a step back and rethink their role in the balance of powers. In a situation where you have a President who is showing disregard for the rule of law.
- [52:17]
C
An awful lot of democracy watchers and sort of authoritarian trackers pick this week to say, holy hell, it's over. Like something about this particular move really sent a lot of folks into DEFCON territory. And I was wondering, you know, again, as somebody who watches this so closely and who's been warning about this for so very long, I don't know what the authoritarianism sort of Richter scale on which you operate is, but is this the week that we call it and say democracy ended, or is there some version of this that is we're making too much of? And it's probably neither and both, but I'd love to hear you locate this in your or nightmare land.
- [53:12]
B
I think this is the first week where people have been able to look around and see what it looks like and feels like to live in a police state. And of course, most of the country doesn't live in Washington D.C. right. But people in D.C. especially people who live in certain neighborhoods in D.C. they have felt it at a visceral level. They have seen it. This is what a police state looks like. That is a line that has been crossed in this past week. And if we do allow that to become normalized in some way, we really could be on our way to a world or country in which, you know, major cities will become places where Americans are afraid to walk the streets for fear that they will encounter soldiers and masked federal agents spoiling for a fight. I think also know this is on the pretext of fighting crime. But of course the next pretext might not be crime. It might be supposed voter fraud, a phenomenon that is statistically almost non existent. But if we were to see, you know, federal deployment in that scenario and if that weren't stopped, that could do incalculable damage to fair and free elections. So we are are seeing concretely the threat to our freedoms and democracy in a way that maybe wasn't quite so visible before.
- [54:40]
C
I like that answer because I think what it says is the appropriate level of alarm is more about information and more about normalization than anything else. And that's just a really smart frame, I think, to look at every one of these sort of seriatim outrages. You never quite know where to place them. But I think if you place them in the land of we can't possibly get used to this because what's coming next is going to be so much worse. That's an incredibly helpful and useful frame. Liza Goytin is senior director of the non partisan Brennan Center's Liberty and National Security Program. She is a nationally recognized expert on presidential emergency powers, government surveillance and government secrecy. She is really a voice that you should be following around right now. And Liza, for all your work leading up to this moment, but for being with us in this moment, I thank you so very much for joining us this week.
- [55:49]
B
It was really my pleasure. Thanks again for having me.
- [55:55]
C
And that's all for this episode. Thank you so much for listening. Thank you so very much for your letters and your questions. You can keep in touch@amicusleet.com you can always leave a comment if you're listening in Spotify. You can rate and review us in Apple podcasts and you can find us@facebook.com Amicus Podcast on today's bonus episode for Slate plus subscribers. Friend of amicus and voting rights expert par excellence Rick Hasson is waiting on the plush velvet sofa in the smokeless cigar bar. And he is going to catch us up on the no good awful news for fair elections that is emerging from the Supreme Court. And he's going to help us understand whether Donald Trump can really ban mail in ballots. You can subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify, or you can visit slate.com amic amicus+ to get access wherever you listen. That episode is available for you to listen to right now. We'll see you there. Sara Burningham is Amicus's senior producer. Our producer is Patrick Fort, Hillary Fry is Slate's Editor in chief, Susan Matthews is Executive editor Mia Lobel is executive producer of of Slate Podcasts and Ben Richmond is our Senior Director of Operations. We will be back with another episode of Amicus next week. Until then, take good care.
- [57:34]
A
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