Military In The Streets?! This Is MARTIAL LAW by Another Name

Summary

Bulwark Takes: Detailed Summary of "Military In The Streets?! This Is MARTIAL LAW by Another Name"

Release Date: June 10, 2025

---

Introduction

In the June 10, 2025 episode of Bulwark Takes, hosted by Sam Stein from The Bulwark, the focus is on a highly contentious memorandum issued on June 7th that authorizes the federalization of the National Guard in Los Angeles amidst ongoing protests. Sam Stein is joined by Ryan Goodman, co-editor of Just Security, to dissect the legal and constitutional implications of this memorandum. The discussion delves deep into the potential overreach of federal authority, the impact on First Amendment rights, and the broader national implications of deploying military forces in civilian spaces.

Background: The June 7th Memorandum

The episode begins with Sam Stein introducing Ryan Goodman to discuss a memorandum signed by Stephen Miller, which authorizes the National Guard and active armed forces to be deployed in Los Angeles without explicit request from California's Governor Gavin Newsom. This move has sparked significant concern regarding its legality and the potential suppression of nonviolent protests.

Key Quote:

"Ryan, what prompted us to reach out to you is this post you put on Blue sky about the memorandum that was issued, I want to say yesterday, but everything's fuzzy. No, it's June 7th memorandum." [00:00]

Legal Ramifications of Federalizing the National Guard

Ryan Goodman elaborates on the breadth of the memorandum, highlighting that it not only authorizes the National Guard but also delegates significant authority to Secretary Hegseth. One of the primary concerns is the memorandum’s vague language, particularly the use of the conjunction "or," which could be interpreted to include nonviolent protests under the umbrella of "protests or acts of violence."

Key Quotes:

"The memorandum is much broader than what we're currently seeing on the ground... providing a huge amount of authority that it also then delegates down to none other than Secretary Hegseth." [01:17]

"It is authorizing the use of the National Guard and the active armed forces to respond to protests or acts of violence." [01:17]

Goodman argues that the memorandum's preemptive nature allows for the deployment of military forces nationwide in anticipation of protests that might disrupt federal law, rather than responding to existing civil unrest. This broad authorization bypasses the necessity for specific, localized requests for assistance, thereby potentially infringing on states' rights and individual freedoms.

First Amendment Concerns

A significant portion of the discussion centers on First Amendment rights. Goodman emphasizes that the memorandum’s language could be used to suppress nonviolent protests, effectively throttling free speech and assembly.

Key Quotes:

"The memorandum is not geared towards riots and it's not geared towards violence or violent action... However, the use of the word 'or' explicitly gives them leeway to go after nonviolent protests." [02:27 - 02:51]

"On the face of it, it says that they will deploy the National Guard just for nonviolent protests. And that is, excuse me, trying to stamp it out, stamp out First Amendment activity." [15:17]

Sam Stein probes further into how this could enable the National Guard to manage even peaceful demonstrations, raising alarms about the potential for abuse of military power in civilian contexts.

Preemptive Action and Escalation

Goodman critiques the memorandum’s preemptive stance, noting that it allows for military intervention before any actual violence has occurred. This approach contradicts longstanding Department of Justice positions that military deployment should be a last resort.

Key Quotes:

"The preemptive action is also remarkable because the Department of Justice has said for decades that the deployment of U.S. forces inside the United States... should be one of last resort." [03:45]

"It's not just the National Guard. It has taken that additional step by including the active arm, the regular armed forces." [05:35]

The discussion highlights the memorandum's lack of geographical restrictions, meaning it can be applied nationwide without targeting a specific state or city, thereby setting a precedent for future interventions.

Governor Gavin Newsom’s Legal Challenge

The episode addresses Governor Gavin Newsom’s lawsuit against the federalization of the National Guard, arguing that the President overstepped by not requesting his authorization. Goodman argues that Newsom not only has standing but also a strong case, especially if the federal actions are deemed to exceed legal authority or involve prohibited law enforcement activities.

Key Quotes:

"So the big question is going to be, ordinarily, the courts defer very much to the president on these kinds of questions. But even in the Insurrection act cases, there's this indication that they would not defer if the president's acting in bad faith." [11:47]

"The Kristi Noem letter to Hegseth seems to be a clear violation of the latter. She's asking the DOD to participate in civil law enforcement. That's a red line." [07:07]

Goodman further explains that if the military begins to engage in activities typically reserved for civil law enforcement, it would violate the Posse Comitatus Act, which strictly limits military involvement in domestic affairs.

Implications of Deploying Active Armed Forces

The memorandum not only allows for the deployment of the National Guard but also the regular armed forces, such as Marines, which marks a significant escalation in federal intervention. Goodman expresses skepticism about Secretary Hegseth’s ability to adhere to legal constraints, citing his inflammatory statements and the tone of internal communications advocating for a militarized approach to civil unrest.

Key Quotes:

"If that's your worldview of what's actually going on, then I have no reason to think that he's going to be constrained with the legal niceties that I've just described." [10:03]

"We're not doing law enforcement, we're just doing military." [11:20]

This militarization raises concerns about the erosion of democratic principles and the potential for authoritarian governance under the guise of maintaining order.

Potential Legal and Constitutional Challenges

Goodman discusses the likelihood of successful legal challenges against the memorandum, noting that courts may scrutinize the definitions and justifications used by the federal government. He anticipates that courts would closely examine whether the conditions for invoking Article II protective powers—or similar statutes—are genuinely met.

Key Quotes:

"They'll take a look at it and make a determination as to, at a minimum, whether the allegations being made in the memorandum or elsewhere meet the definition of rebellion." [12:49]

"I think there's a pretty sound argument for that regarding the First Amendment." [11:55]

Goodman also points out that individual protesters or organized groups could serve as plaintiffs in First Amendment lawsuits, challenging the government's overreach and defending their rights to peaceful assembly.

Conclusion: The Road Ahead and National Impact

As the episode draws to a close, Goodman and Stein reflect on the broader implications of this memorandum. They express deep concern that this action signifies a dangerous shift towards normalizing military involvement in domestic affairs, which historically has been a safeguard against authoritarianism.

Key Quotes:

"I think we should be very worried... what is one of the cherished parts of American society? It's that we do not have the military policing Americans on their city streets." [16:32]

"It really is testing, I think, for Stephen Miller how far they can go on violating that kind of cherished American principle." [16:32]

They emphasize the importance of vigilant legal and public opposition to prevent the erosion of civil liberties and maintain the separation between military and civilian spheres.

---

Final Thoughts

This episode of Bulwark Takes serves as a crucial analysis of a pivotal moment in American governance, questioning the balance between national security and individual freedoms. Through Ryan Goodman's expert insights, listeners gain a comprehensive understanding of the potential legal pitfalls and constitutional crises emerging from the federalization of the National Guard and the deployment of active military forces in civilian contexts. The discussion underscores the necessity for legal challenges and public awareness to safeguard democratic principles against possible overreach by federal authorities.

---

For those who haven't listened to the episode, this summary captures the essence of the conversation, highlighting the significant legal and constitutional concerns surrounding the federalization of the National Guard and the deployment of military forces in response to civil protests.

Transcript

[Sam Stein]

Hey guys, it's me, Sam Stein, managing editor at the Bulwark. And I'm joined by Ryan Goodman, who's the co editor of Just Security. He is going to be talking about the situation in Los Angeles and what I would argue, or I guess what he would argue are the sort of very dire, very concerning legal ramifications behind the memorandum to authorize the National Guard and then relatedly, the use of military on the ground in Los Angeles. Ryan, thanks for joining us. I really appreciate it. Before we get into the interview, as always to the people out there, do subscribe to this feed. It supports conversations like this. So, Ryan, what prompted us to reach out to you is this post you put on Blue sky about the memorandum that was issued, I want to say yesterday, but everything's fuzzy. No, it's June 7th memorandum. So it was three days ago. And this was federalizing the National Guard. And what was distinct about this is that a number of things, but first and foremost that Gavin Newsom, the governor of California, had never actually asked for the National Guard to be federalized to help with the protests in in his city in Los Angeles, I should say. But you pointed out another of other very alarming elements of this memorandum. Can you walk us through what stood out for you?

[Ryan Goodman]

So the memorandum is much broader than what we're currently seeing on the ground in the sense that it provides a huge amount of authority that it also then delegates down to none other than Secretary Hegseth. So the issues I think are, let me put one of them front and foremost, which is First Amendment issues. The memorandum is not geared towards riots and it's not geared towards violence or violent action. It is authorizing the use of the National Guard and the active armed forces to respond to protests or acts of violence. That's one and two. It's also preemptive force. It's not just to respond to like an existing civil unrest, but it allows for the deployment of forces, military forces, National Guard, Marines, et cetera, anywhere in the country in anticipation of protests that might disrupt, as the memorandum says, federal law, federal enforcement.

[Sam Stein]

Let's take those one by one. The use of the word or, which you highlighted as consequential protests or acts of violence, your contention here is that explicitly this gives them leeway to go after nonviolent protests.

[Ryan Goodman]

Yes, it does, on the very face of it.

[Sam Stein]

Because they could have used a different word than or. Right. More or less. Or they could have been more explicit.

[Ryan Goodman]

Yeah. I would think they should say violent civil unrest or acts of violence that disrupt the Federal government's ability to function in some situation, but they don't.

[Sam Stein]

Under this. Under this reading, the National Guard, in theory or in practice, could go and say, you are protesting, and that is causing a form of civil unrest, the protest itself. And therefore, even if those protests are nonviolent, we have the authority to suppress and manage them, do whatever we want with them.

[Ryan Goodman]

That's right. So it's so outrageous. It's like the fact that I'm even saying that's right. It's just. Part of me just thinks that it's cooked up in Stephen Miller's mind. I mean, it's just that far afield of anything you might imagine the preemptive.

[Sam Stein]

Action, one, the phrase you highlight is or are likely to occur. Talk about the significance of that phrasing.

[Ryan Goodman]

The preemptive action is also remarkable because the Department of Justice has said for decades that the deployment of U.S. forces inside the United States under the Insurrection act or similar situations should be one of last resort. So the idea that this is in fact, kind of like as potentially first resort is extraordinary. And to add to it that this is obviously, therefore not talking just about LA. They're talking about other instances. Chicago, St. Louis. I could just start reeling them off in the future anywhere in the country. The other part of the order that's the memorandum that's really remarkable is there's no reference to California, there's no reference to la. It is across the United States. It's geographically unbound.

[Sam Stein]

So in theory, they could use this memorandum in a separate state. They wouldn't have to issue a separate memorandum to authorize National Guard and say, let's just say Illinois. Right. For Chicago. And they can say, we have some sort of intelligence or something of that matter to suggest that there are going to be disruptive protests in Chicago that require us to preemptively go in with the National Guard so that they don't get to a place where they are, you know, threatening federal buildings or potentially endangering ICE officers.

[Ryan Goodman]

That's right. And that they override the ability of the governor to direct, in that case his. But his or her state guards. They commandeer them. Exactly. And. And I should say. And the memorandum also includes authorization for the active arm, the regular armed forces. So it's not even just the National Guard. It has taken that additional step.

[Sam Stein]

The no geographical. Let me just my own take on this is that they've been fairly explicit that they want to use what's happening in LA as a deterrent for future protests. I mean, they're saying outwardly, we want them set an example here so that there are no similar instances in the future. And they're not saying instances in LA in the future. They're just saying instances in the future. So I think it's fairly clear to them that this is a staging ground designed to dissuade any potential protests in the future.

[Ryan Goodman]

Yes. And the only question I have is whether they really are trying to deter or instead it's just a stepwise process of trying to escalate. In that case, they're to also send in the Marines is just incredibly escalatory.

[Sam Stein]

Like, why in that case? Yeah, in that case, the predicate that they're laying is we're going to do this everywhere. It's not. We don't want to prevent it. We just want to set the expectations that this is now the new norm.

[Ryan Goodman]

Yes.

[Sam Stein]

Kristi Gnome sent a letter to the the Department of Defense yesterday which was directing the military to basically help detain and arrest lawbreakers. This was picked up by the San Francisco Chronicle, but it didn't really get as much attention as the memorandum. I would argue that probably deserves more attention. I know you've looked into it. Does this escalate beyond the memorandum, and if so, in what ways?

[Ryan Goodman]

I think one of the most important things that to keep one's eye on the ball going forward is that the question at hand is that the government is using this idea that they have, the President has Article 2 inherent authority to protect federal buildings. And two questions we need to be focused on. One, do they ever exceed that authority? And two, do they ever get into what would otherwise be defined as law enforcement? If they do, then that's in violation of the Posse Comitatus Act. The Kristi Noem letter to Hegseth seems to be a clear violation of the latter. She's asking the DOD to participate in civil law enforcement. That's a red line. I worked at dod. There are multiple DOD docs and regulations that have a list of impermissible action. And the impermissible action is directly assisting civil law enforcement for the very kinds of things that she's asking Heath to do. My only hope in that respect is that she got out over her skis. And it's a request that the DoD would reject. So we don't know that what the DoD's response to that was, but it just shows you how lawless it is internally because it's an internal document that was leaked. It's not like that's for public messaging purposes.

[Sam Stein]

Yeah, but the DoD did send 700, 500, 700 Marines to LA yesterday. Or at least they said they were going to send them to LA yesterday. What's our understanding of the legal bounds upon which within which they can act here?

[Ryan Goodman]

The idea is that the Office of Legal Counsel, the Department of Justice 1971 Opinions and Other Opinions, 1967, have this argument that there does not need to be a statutory Authority, that Article 2 alone gives the President the power to use troops to protect federal buildings, federal personnel. And. And that's the authority. So it's not waiting for an Insurrection act proclamation to drop.

[Sam Stein]

Just so understand was already given.

[Ryan Goodman]

Yeah.

[Sam Stein]

Just so I understand. The distinction here is that military personnel can protect federal buildings, but they cannot be involved in the arrest or detention of people who are rioting or protesting. Because that would be a proactive policing that the military is prohibited from doing.

[Ryan Goodman]

That's the idea. Yeah.

[Sam Stein]

Okay.

[Ryan Goodman]

And there's going to be a blur of something there between those lines, but. Yeah, exactly.

[Sam Stein]

Right. What have we seen? This is kind of a rhetorical question, but what have we seen from Hegseth in terms of how he's approaching this? And if he has sort of an appreciation for that line, I don't trust that he does.

[Ryan Goodman]

On Saturday night he put out a post on X from his personal account. Inflammatory. Yeah, and super inflammatory based on false statements about. And that's also in the other piece of it in the GNOME letter to him. These ideas that they really may be cooked up in this like Fox News reality of there's an invasion and terrorists are inside LA and the like. So I mean, if that is your actual worldview, that's in his post and that's in the letter from Noam to him. If that's your worldview of what's actually going on, then I have no reason to think that he's going to be constrained with the legal niceties that I've just described. I mean, in some sense he might start to think of it as a military operation. That is not even. We don't need to worry about it as law enforcement. And the one. The reason I say that is not just speculating out the wazoo. One of the first executive orders on clarifying the role of the military made it sound like it is now a military mission with respect to immigration enforcement. And that's another way of potentially around the Posse Comitatus act because you just say we're not doing law enforcement, we're just doing military.

[Sam Stein]

Right.

[Ryan Goodman]

And.

[Sam Stein]

Yeah, if it's an invasion and no longer has become. Becomes anything Other than a military exercise. Gavin Newsom, let's talk a little bit about that, because he's sued over the federalization of the National Guard, arguing that they did not request or even ask about whether he would authorize it. Does he have any standing? Well, he might have standing here. Does he have a case here?

[Ryan Goodman]

Yeah, I mean, the first thing on standing is he's the best plaintiff.

[Sam Stein]

I was gonna say standing is a very technical term. I didn't mean it in that sense. But does he have a case here?

[Ryan Goodman]

I mean, I think he has a case. The big question is going to be, ordinarily, the courts defer very much to the president on these kinds of questions. But even in the Insurrection act cases, there's this indication that they would not defer if the president's acting in bad faith. And I think there's a good argument for that here. Also, part of his complaint says, look, another predicate that they have made in order to federalize the National Guard is that there's a rebellion. There's no rebellion in Los Angeles. Or Bailin is like trying to overturn the government.

[Sam Stein]

I'm not trying to be a devil's advocate here, but who makes that determination? Right. I agree with you. Obviously, this is. A lot of this is cooked up in a Fox News fever dream, but surely they'll have some sort of presentation they can make that says, look, waymos are on fire, buildings are defaced, people are fearing for their lives, streets are closed down. If that's not a rebellion, what is? Right. I mean, they will make the case.

[Ryan Goodman]

Yeah, they'll make the case. But that's one in which I'm thinking that the courts might actually review it. Like, they'll take a look at it and make a determination as to, at a minimum, whether or not the allegations being made in the memorandum or elsewhere meet the definition of rebellion. What is the definition of rebellion? And they should define that as statutory construction. And why I'm thinking the courts will do that is it's very analogous to the Alien Enemies act cases, where the proclamation declares that there's been an invasion by the TDA gang, the Tagua gang. And there the courts have been mostly willing to say, well, that's statutory construction. We'll tell you what the definition of invasion is. So I think that they might do that. One important piece. There are two important pieces about the Gavin Newsom complaint. One, it is totally about federalizing the National Guard. All of the arguments that he's making, rebellion, going around the governor commandeering the state by over riding the state National Guard controlled by the governor. That's all about the National Guard. And in the complaint itself, folks should realize it's written right around the time that the Marines are actually being deployed. And it actually says, reportedly Marines are being deployed, because they don't even have that as an official action yet. So I do think there's this still open question of what about litigation around the Marines? Because that's separate. And I think on that one, there's a very good argument that this idea that there's Article 2 protective power can only be exercised if the state authorities are incapable or unwilling to provide adequate protection. I'm taking those words from Justice Department memorandum, DoD documents and the like. So that condition doesn't seem to be met. That is a similar argument to what is in the complaint, which is that we had things actually under control before Trump escalated it by bringing in the Guard and now the Marines. That's one. And the second is he doesn't raise a First Amendment claim. And I think that's a huge argument that another plaintiff might be able to bring.

[Sam Stein]

Elaborate on that. The First Amendment, as in, you know, we were just demonstrating our protest rights. You put it down with brute force, National Guard, military, you have violated my First Amendment rights. But a plaintiff would be who? Any random protester could it be, you know, even Mayor Bass, for instance. I mean, who would be the plaintiff here?

[Ryan Goodman]

I think that that's just. It could be groups that have organized or want to organize around peaceful protests of ICE enforcement activities in their city, and they could just say, look facially. On the face of the memorandum, it says that they will deploy the National Guard just for nonviolent protests. And that is, excuse me, trying to stamp it out, stamp out First Amendment activity. It's trying to throttle First Amendment activity. And I think there's a pretty sound argument for that.

[Sam Stein]

Okay, this is a lot. Let's just finish on a big picture piece. Because whenever we've had these conversations, we usually end with me sort of asking you on the scale of 1 to 10, and I don't want to do that because it seems a little trite for this moment, but this does seem to be, honestly, a place. And I know my colleague Bill Kristol's written about this. I know JVL's written about this, where they're very. Actually quite frightened about the pushing of the boundaries here and the predicate that's being laid for future cases where they want to deputize the National National Guard and. Or, sorry, federalize it and. And use the military. You seemed really worried in your Blue sky thread about what's happening here. How worried should we be?

[Ryan Goodman]

I think we should be very worried. And we just published a piece in the last hour by Liza Goytan, and her piece is basically saying this is the Insurrection act invocation by another name, because. Yeah, just. And like you say, taking a step back, what is one of the cherished parts of American society? It's that we do not have the military policing Americans on their city streets. And we do not have the military certainly policing First Amendment activity or trying to crush First Amendment activity like peaceful protests. And that is what has been introduced here. Now, they're still keeping this line of only protecting the federal building. So I do think the big question is, do they either hold that line or in fact, get pushed back out of it? Because not just through litigation, but Gavin Newsom and others win the day on that this is a completely inappropriate use and an escalatory use of the National Guard, and that US Marines are not. And I think that's, to me, what's so deeply concerning. It really is testing, I think, for Stephen Miller how far they can go on violating that kind of cherished American principle.

[Sam Stein]

Yeah. It makes the next couple days incredibly important in a very chilling way, too. All right, Ryan Goodman, thank you so much, man. I appreciate it. This is heavy stuff, but you have a real gift at unpacking it for us. We'll be tuning back to you when we have the next city under siege from the National Guard, obviously. But until then, thank you and thank you guys for watching this. As always, subscribe to the feed and we will talk to you later.