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This is FRESH air. I'm Terry Gross. President Donald Trump has said he would institute the Insurrection act in Minneapolis if the people he describes as professional agitators and insurrectionists continue attacking the the patriots of ICE. There are now about 3,000 Department of Homeland Security agents, which includes ICE and Customs and Border Patrol, the CBP, in the Minneapolis St. Paul region to search for and deport immigrants here illegally. What does this say about President Trump and his administration? How is this playing out in the courts? What does it mean for the first and Fourth Amendment rights of Americans to peacefully protest and express their opinions and for our democracy? I have two guests who have been looking at these issues. Emmanuel Malion is a professor at the University of Minnesota Law School. He lives in the Twin Cities. He writes about the roles that police and other state security actors play in producing social, political and legal regimes of domination and subordination. He's a former fellow at the Brennan center for justice, where he focused on white nationalist domestic terrorism and hate crime policy and police access to surveillance technology and military weapons. Elizabeth Goitein is senior director of Liberty and national security at the Brennan center for Justice. She's an expert on presidential emergency powers, government surveillance and government secrecy. She's testified before Senate and House Judiciary Committee several times. We recorded our interview yesterday morning before it was confirmed that subpoenas were issued to Minnesota Governor Tim Walsh, Minneapolis Mayor Jacob Fry, the state's attorney general Keith Ellison, as well as the mayor of St. Paul and the Hennepin county attorney. The subpoenas are reportedly part of a Justice Department probe into whether state officials were conspiring to impede federal immigration law enforcement operations. Elizabeth Goytin, Emmanuel Malion, welcome to FRESH air. I want to start with an overview, asking each of you to just like run through a list of some of the things that President Trump and his administration are doing that you find most confounding or legally out of bounds.
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C
So as a scholar that studies primarily policing criminal procedure, the rights that we have secured against the government in that realm, I'm certainly very concerned about violations of the Fourth Amendment. That's unreasonable searches and seizures, warrantless searches and seizures, certainly some Fifth Amendment due process violations of invocations, of the right to silence, violations of Miranda. Certainly we've seen in the last month or so violations of access to Counsel, for example, all of these things are fundamental rights which ensure the fairness and justice to the extent that they can of people's interactions with the criminal legal process and some civil legal processes. And to the extent that these are violated, it essentially robs individuals of the ability to have their fair day in court.
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D
And, Liza, one of the things that concerns me the most is the way in which this administration is using the apparatus of the federal government to go after perceived political enemies. I'm thinking about, you know, canceling grants to states and to institutions, bringing prosecutions against those who the president perceives have wronged him based on flimsy charges, deploying the military in cities and states that are led by people who, again, the president perceives as his political enemies. That kind of deploying the federal government against political enemies is a hallmark of authoritarian regimes, and it has major implications for basic First Amendment rights and for the functioning of our democracy. Another thing that I'm quite worried about is the militarization of US Cities. In the last nine presidencies, not including the first Trump presidency, presidents deployed the military to quell civil unrest or to enforce the law. Twice President Trump has either deployed the military, attempted to deploy the military, or requested deployment seven times in his first year in office. He is violating a longstanding legal principle against using the military as a domestic police force. And that principle is a critical safeguard for democracy and individual liberties. So those are some of the things that I'm most concerned about.
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B
Well, you both have pretty long lists. So let's start with ICE and what's happening in Minnesota. And Emmanuel, I'm going to ask you. You were born in Mexico, and I am wondering if you've been stopped by ICE and if anyone in your family has come in direct contact with ice.
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C
No, I have not been stopped by ice, certainly not yet, but. But it is a ever present concern, I would say. And so I do live in Minneapolis now. I grew up in the city, so I'm returning after about 20 years away with my recent position at the University of Minnesota. My interest in policing and in particular in the questions of race and policing have stemmed from past experiences with police that have involved very explicit racial stereotyping, targeting explicit epithets, being arrested without a basis, being threatened with deportation despite the fact that I was a citizen. And so that's all personal background that animates my professional interest. But certainly in this moment, the line between the two is bleeding quite quickly.
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B
When were you threatened with deportation?
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C
I'd say about 20 years ago. I was arrested and charged with A crime that I did not commit. But while I was in jail here in Hennepin County, I was brought at some point in time to a room that was very quickly apparent to me was all Latinos. And I got the inkling that something was going to happen. And I had this strange interaction, you know, with a well meaning, I think, government attorney who was speaking broken Spanish to me as I was responding in English, as I am speaking on the radio today, telling me that because I was born in Mexico, I was at risk of deportation. And, you know, I explained clearly that I was a citizen and that they could not deport me. But I think that this goes to the logic that just some markers, immediate markers like that just put you into a lane where the presumption is that you're an outsider to the country.
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B
So my understanding is that your nephew goes to the school where there was an anti ICE protest outside of the school, and ICE came to the protest and tried to break it up. Tell us the story.
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D
Sure.
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C
So it's been challenging here. Certainly this operation's been ongoing for about eight weeks now. But in the last two weeks or so since the shooting of Renee Goode, things have certainly escalated. So the same day that Renee Goode was shot here I was responding both personally and professionally, and then later got a call from my brother to say, hey, I'm concerned. CBP just showed up, arrested two teachers at my nephew's school. And this is how it's been for the last two weeks. It's been ping ponging between taking calls, trying to respond in a professional capacity, and then honestly, every single day getting alerts, getting calls from either family members, friends, neighbors, that ICE is spotted, that ICE is taking someone. How do we help? Is this legal? All these sorts of things. And so certainly I think that for the people in Minneapolis on the ground, I cannot emphasize enough that ICE has just become this constant background presence. And in some neighborhoods, not a background presence, it's whistles and car horns and honking at every moment of the day.
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B
So, I mean, you're a lawyer, you know the law. So what advice are you giving your students and your nephew about how to stay safe?
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C
My general advice is to both know your rights, know the extent of your rights, know that you can ask if you're free to leave any sort of encounter so that it's not, you know, you can determine whether it's a consensual encounter, whether it's a stop, understand what sorts of questions you're obligated to answer under certain statuses. Understand that you can invoke your right to silence, and that should be respected. But these are rights in theory, so long as the government is willing to acknowledge them, protect them, and obey the law. And what we've seen here is that that's not been the case. And so when that is the truth, then I suggest that, you know, they understand the risks. Invol that if they're going to go out and observe. We've seen a range of, you know, what courts have found to be quite lawless retaliation against legal observers, people that are, you know, filming ICE in their enforcement activities. You know, there are people being sprayed in the face with all sorts of chemical rounds. People have been shot with less lethal ammunition. You know, all these sorts of things. And so what I try to tell them is know your rights and understand that your rights are tentative and tenuous and that there are real risks. Anytime that you go and confront somebody that has, you know, the ability under law to enforce with violence and at this point in time seem to believe themselves to be unaccountable.
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B
I want to play something that the mayor of Minneapolis had to say recently about ICE in his city. This is Jacob Fry.
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E
We have tens of thousands of people throughout the city that are peacefully protesting. Of course they're marching. Of course they're exploring, expressing their First Amendment rights. Yes, they are able to record what is taking place. I mean, that's part of their right as citizens of the United States. And no ICE agents can't stop, nor can they hide from a recording that is taking place. And at the same time, the message is very clear that we are not going to take the bait. We will not counter Donald Trump's chaos with our own brand of chaos here. And we're not going to give them an excuse to do the thing that clearly they're trying to set up to do right now, which is these 1,500 troops. The fact that we're saying this out loud, Jake, is bizarre. You know, I never thought in a million years that we would be invaded by our own federal government.
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B
So that was Mayor Jacob Fry on CNN's State of the Union speaking with Jake Tapper over the weekend. On Sunday, Liza, you had mentioned in your list of things that you find troubling right now on that list is how Trump has turned the government against perceived enemies. We just heard Mayor Jacob Fry talking about how he never expected to see the US Military used against Americans, like in Minnesota. Do you see this as an example of Trump using government against his perceived enemies? Can you flesh that out? For us.
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D
Well, if President Trump were to deploy troops in Minneapolis, presumably, and I should.
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B
Mention that that reference to 1500 troops is there are 1500 troops being readied to deploy to Minnesota, and these troops are based in Alaska, where they have training in. In cold weather.
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D
Well, if President Trump were to deploy troops in Minneapolis, for example, if he were to invoke the Insurrection act, that would be a clear abuse of power. The Insurrection act is designed for extraordinary circumstances where mass violence has absolutely overwhelmed state and local law enforcement. I'll give you an example. The last time that a president invoked the Insurrection act was in 1992, when riots in Los Angeles after a jury acquitted the police officer who had beaten Rodney King, killed 63 people, and caused more than a billion dollars worth of damage. There's nothing like that that's happening right now in Minneapolis. There is chaos, I would say, in the city, but it's chaos of the federal government's own making. The lawlessness and violence is overwhelmingly coming from ice. Yes, some protesters have crossed the line into unlawful conduct, things like throwing objects at officers or vandalizing ICE vehicles. And the police have responded, the police have made arrests. But the level of, I guess, misconduct by the protesters is well within the levels that state and local law enforcement can handle. This is not a situation in which deploying the military is necessary. And really, in this case, the military would be deployed not for the purpose of quelling violence and lawlessness, but for the purpose of enabling the violence and lawlessness that we are seeing from ice. I'm talking about smashing car windows, ramming vehicles, forcibly entering homes, using a battering ram without a warrant. These are all things that have been filmed, and we know they're happening. And that is what the military would be deployed to protect. That is an abuse of the Insurrection Act. It would be.
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B
So would Donald Trump be required to invoke the Insurrection act before sending in the military?
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D
Well, he might try to claim that he has an inherent constitutional right to deploy the military to protect federal personnel and property. That is something that the administration has argued in other cases. It is a longstanding position of the executive branch that there is such an inherent constitutional power. However, no court has ever squarely endorsed such a power. And so I believe he would be on very tenuous legal ground to rely on this inherent constitutional power. Moreover, even if there were such an inherent power, it would still be subject to the Posse Comitatus Act. That is the law that prohibits federal armed forces from engaging in law enforcement activities unless expressly authorized by a statute or by the Constitution. And an inherent constitutional power, by definition, is not an express power. And the types of activities that the military would be doing in a protective function, such as security patrols, crowd control, riot control, these are all things that the Department of Defense has long recognized constitute law enforcement activities that require an express exception under the Posse Comitatus Act.
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B
And some of this dates back to, like, the pre Revolutionary War days, right, when people living in the colonies were attacked by the British military and.
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D
Absolutely, absolutely. The principle that the military should not act as a domestic police force goes back centuries, all the way to the Magna Carta. So even though the Posse Comitatus act was passed in 1878, the principle that it enshrines is a core American value. And it is reflected in the allocation of powers between Congress and the President in the Constitution when it regards the military. And it's really baked into our nation's DNA. I think that's the best way to put it. And I think the reason for it is obvious. If a leader can turn the army inward against the people, that can be a very powerful instrument of tyranny and oppression. And at a minimum, it can shill the exercise of. Of the rights that the people have.
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B
Emmanuel, since a lot of your focus has been on policing, what are some of the differences between what police are allowed to do and what ICE is legally allowed to do?
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C
We should understand that the general police power is reserved to the states, to local authorities. And so generalized response to crime, charging people, arrests for, you know, any number of municipal violations, state violations of criminal statutes, all of that is firmly within the jurisdiction of state and local policing. Whereas ICE is really supposed to be doing one thing, and that's enforcing federal law under federal statute. And one of the things that we are seeing, especially in the lawsuit from Minnesota v. Noem, this is the lawsuit that was filed last week from the state against DHS and a number of actors, is this argument that ICE is impeding the ability of state and local law enforcement to do its job, that it's essentially commandeering state and local law enforcement for its purposes, not because they're carrying out immigration enforcement on their behalf, but because they're having to respond so much to the lawlessness of ICE activity here in the state that we're not able to direct our policing resources where they otherwise might be needed. ICE is supposed to be enforcing the law as authorized under statute or federally, and that is the limitation to the extent that they can arrest somebody for impeding or obstructing their authorization under federal statute, they can do that. They can. You know, for example, if somebody throws a snowball at them while they're conducting an ICE arrest, it would be, you know, fairly clear that they'd be entitled to go and arrest that person for a violation, for trying to impede their enforcement authority. But what they're certainly not supposed to be doing is general protest control, crowd control. They're not supposed to be really engaging legal observers. They're not supposed to be enforcing traffic stops, for example. And so what we're seeing certainly on the ground is that they seem to be reading their authority as incredibly expansive and in some cases making the suggestion that they can not only engage in targeted immigration stops, but they're entitled to stop anybody in the city of Minneapolis for any reason as part of this overall operation. And that certainly would be contrary to what I think any court has found in the past.
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B
Is it legal for an ICE agent to confiscate a camera, a phone camera, if somebody is shooting video of what that agent is doing on their phone?
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C
Certainly it would be if the only thing that's occurring is that somebody is observing, certainly they're doing it from a distance. That's not impeding an actual enforcement act. So if there's an ICE arrest occurring and you're filming from 15ft away and an agent approaches you and takes your phone, almost every court has found that that would be a violation of the Observer's First Amendment rights. And that's whether or not you're a citizen or not, if you're entitled to record the government in carrying out its duties. And we understand one of the reasons why is because we want to ensure accountability and transparency. To the extent that the government is trying to hide what it's doing, it certainly doesn't engender any sort of confidence that they're following the law.
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B
My guests are Elizabeth Goytin, senior director of liberty and national security at the Brennan center for justice, and Emmanuel Malone, a professor at the University of Minnesota Law School. We'll be right back after a short break. I'm Terry Gross, and this is FRESH air.
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B
What is the status of racial profiling now? Is that now considered a more legitimate thing to do? Like what have the courts said about racial profiling recently?
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C
So there was a case that was filed in Los Angeles based on the also recent surge of ICE and immigration enforcement activity there. There were claims of widespread racial profiling. In that case is Vasquez Perdomo versus Noem. And you know, without getting into the complicated procedural history, essentially the district court found that ICE was engaged in widespread racial profiling, particularly of Latino men. And it said that they were using four different factors, one of them including apparent race or ethnicity, to determine who was going to be stopped and questioned about their immigration status. This would seem to fly in the face not only of established precedent from a case called Wren versus The US which explicitly said that race should have no bearing in the production of reasonable suspicion or probable cause when determining who to stop. Now Wren is not a great case for other reasons, but at a baseline it said that, you know, race cannot be an objective reason to stop someone. The case in Perdomo v. Noem was appealed by the government all the way up to the Supreme Court which responded on its emergency docket. And so it issued an unsigned opinion that essentially overturned temporary restraining order against ICE for engaging in that kind of conduct. And the only insight that we got into why the Supreme Court did this came from a 10 page concurrence written by Justice Kavanaugh which was not joined by any other justice. But he went to great lengths to make the case for why using race, apparent race or ethnicity is reasonable under the Constitution. And I think that it was an opinion that really struck many scholars of policing, certainly immigration advocates, as a concerted effort to move the constitutional goalpost. And when race and ethnicity is allowed to be taken into account, so much so that these interactions now between ICE enforcement officers, these type of street level interactions that we see racial profiling as their foundation, these are now being referred to as Kavanaugh stops.
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B
Can you elaborate on what Kavanaugh said in his concurrence?
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C
Yes. So Kavanaugh endorsed the idea that you could derive reasonable suspicion that someone is in the country illegally, you know, without documentation, based on four factors. This included the type of work that somebody did, whether or not they were in locations where immigrants tend to congregate. This included places, you know, from a Home Depot parking lot to a bus stop in Los Angeles to whether someone spoke English with an accent or was found speaking Spanish in public, and then finally whether they had apparent Mexican ancestry. And so this was the apparent race or ethnicity point. What the district court had found was that this was clearly prohibited by the Constitution, and it found many, many instances where the sole reason that someone was stopped was because of their apparent race or ethnicity.
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D
The fact that people have been calling these stops, Kavanaugh stops seems to have gotten to Justice Kavanaugh. And in a subsequent decision, he, in a footnote, you know, went to great lengths to say that, in fact, race cannot on its own be a basis for law enforcement investigatory activity. And that appeared to be a way to try to walk back what he had said previously, at least to some extent.
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C
Liza's exactly right. Kavanaugh does seem to walk it back in this case, Trump v. Illinois. But one of the critical issues here is that that's what we call in the legal world dicta. It was not squarely about the case that was presented at issue. So it has no legal authority. And so certainly while Kavanaugh tried to walk it back in the footnote, he's not making any sort of departure from his earlier comment that it cannot be the sole factor. But certainly this accumulation of factors is so tied to structural racism, racialization within this country anyway, that it's almost as if you're counting race on several different vectors and suggesting that it's not race at all.
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B
Well, we need to take a short break here, so let me reintroduce you. If you're just joining us, my guests are Emmanuel Malion, who is a professor at the University of Minnesota Law School, and Elizabeth Goytin, who's a senior director at the Brennan center for Justice. We'll be right back after a short break. This is FRESH air. Liza, I want to get back to the Insurrection Act. If Trump does invoke the Insurrection act, as he has threatened to do, what exactly would that give him power to do?
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D
The Insurrection act is the primary exception to the Posse Comitatus act, and that's the law that normally prohibits federal armed forces from engaging in law enforcement. So if he were to invoke the act, that would give him the authority to deploy active duty armed forces or to federalize National Guard forces and deploy them to quell civil unrest or to execute the law. And that could include law enforcement activities such as conducting arrests and seizures and searches. And under the Insurrection act, the president has broad discretion to decide how many troops need to be deployed and what activities the troops can conduct. It is really the biggest gun in the president's domestic deployment arsenal.
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B
So what do you fear that the military could be ordered to do if the Insurrection act was invoked by Trump?
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D
Well, my main fear is less about the specific actions that they will take, but the consequences of militarizing US Cities and militarizing law enforcement functions. I think the immediate effect of deploying them will be to enable and embolden ICE officers in their own disruptive and illegal conduct. But I think there are concerns beyond that, because I think the presence of the military in the numbers that I expect we would see in our cities would be extremely, on the one hand, chilling. I think there are a lot of people who would be afraid to just live their lives and go outside and go to restaurants. And we saw a little of that here in Washington, D.C. when National Guard forces were deployed here. But on the other side, I think there will be people for whom this is such an outrage that it really is going to inflame tensions rather than diffusing the situation, and that it will escalate matters. And in that context, one of the things I worry about is the fact that I do think that service members are better trained and more disciplined and more professional than the ICE agents that we've seen in Minneapolis. But their training is fundamentally different. They are not trained to handle civil unrest situations. They're not trained to do civilian law enforcement. And my concern is that in a face off or a tense confrontation, they might fall back on their combat training. And that is something that we have seen in the past when soldiers have been deployed in a domestic context.
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B
I'm wondering if you think that sending in the National Guard against various governors will and then threatening to invoke the Insurrection act, what happens next? Can it be instituting martial law?
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D
Well, martial law is different than deploying troops under the Insurrection act, at least as it's commonly understood. I mean, there's no single official definition of martial law, but it's generally understood to refer to a situation where the military actually supplants and displaces civilian government, rather than a situation where troops are deployed to a assist civilian law enforcement. And the Brennan center did a major study of martial law a few years ago, and we concluded that it would be illegal that there is no provision in the Constitution or in current legislation that would authorize martial law. And so the president would have no authority to do it because all of the president's powers derive either from the Constitution or from statutes passed by Congress. Now, that doesn't mean he wouldn't try it, but I do think it's different from the Insurrection act or the laws that President Trump has relied on in his previous deployments, in the sense that there is no congressional authorization for this. And because it's also not in the Constitution, it's really something that the president could not do.
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B
But who's to stop him? Congress hasn't stood up to him. Republicans in Congress haven't stood up to him. He appointed a majority of the Supreme Court.
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D
Yeah, well, the Supreme Court stopped him from using the law that he was relying on to federalize the National Guard in Illinois.
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B
But there are two other states where they didn't stop him, but they held.
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D
That the law couldn't be used for that purpose. And so President Trump saw the writing on the wall and he demobilized the troops in those other cities. I mean, the Supreme Court didn't allow federalization in those cities. The Supreme Court just didn't hear those cases. But because the Supreme Court said he could not rely on the law that he was using, at least under. In the way that he was using it, I'll put it that way, that decision basically applied to the other cities as well. Now, I think it's important to understand that the law in that case is a law that really had not been used previously in the way that President Trump had used it.
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B
Which case are you referring to?
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D
I'm talking about the Illinois case. And also similarly so in Los Angeles, in Portland, in Chicago, the places where.
- [32:09]
B
He sent in the National Guard against the governor's will.
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D
Exactly where he federalized the Guard. He deployed the Guard in Los Angeles. He didn't quite get to the point of deploying them in Portland and Chicago because he was blocked by the courts. But in all of these cases, he was relying on an obscure law. Unfortunately, it doesn't have a catchy name like the Insurrection Act. So it's just 10 USC 12,406. And because that law had not been used previously in that way, there really was no case law. Other courts had not had a chance to interpret this law. And so the Supreme Court was writing on a blank slate to some degree. And also the law, that law is a little bit cryptic in some ways in terms of what level of sort of obstruction of the law is required in order to authorize federalization of the National Guard. And so I think if a majority of the Supreme Court had wanted that case to come out a particular way, they could have made the case come out that way. They were not bound by any existing case law or by, you know, utterly unambiguous terms in the statute. So what that tells me is that a majority of the justices were profoundly uncomfortable with the way that the president has been using the military domestically and the way the president views the role of the military inside the United States. And I think that discomfort might very well translate over into an insurrection act invocation.
- [33:48]
C
There are some ways that this moment is truly exceptional, and there are some ways that this moment is really a continuity of a path that we've been on. And so to the extent that I think Liza is correct, if we were to deploy the military, it could have a chilling presence in Minneapolis, certainly, but anywhere in the country where they're deployed. But I would hesitate to say that, you know, we don't see militarized forces on the ground already. When we see ice, they're out there with military helmets, flak jackets, military grade weapons. They have armored vehicles. The same is true for the Minneapolis Police Department. And so the line between what domestic policing looks like and what military looks like has been bleeding since certainly since 9, 11, when many of the gadgets, many of the tools, many of the strategies, much of the training that law enforcement receives now is modeled on this war on terrorism, such that our state and local police departments and our federal police departments, our federal enforcement agencies, have all become significantly militarized relative to what they were beforehand. So while it's truly exceptional, I think the degree of violence, the scale of immigration enforcement in the interior, what the seeming total disregard for the rule of law from top officials on down, these are continuities that I think trace much of the movement against policing and police violence and movements of racial protesting over the past decade plus. Right. I think that this is just a logical continuation of a backlash to those movements.
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B
Well, we need to take a short break here, so let me reintroduce you. If you're just joining us, my guests are Emmanuel Malion, who is a professor at the University of Minnesota Law School, and Elizabeth Goytin, who's a senior director at the Brennan center for Justice. We'll be right back after a short break. This is FRESH air. Emmanuel, I want to get back to you. We've talked about how what can be called racial profiling has been used in, in Minneapolis to stop people of color. And I'm wondering if you think there's an element of white nationalism behind some of the thinking here, because white nationalists don't like people of color in the US they're afraid of losing the white majority. They're afraid of losing control of our country. And I know you've studied white nationalism, so I'm interested in what you think.
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C
Sure. There's a not so discreet connection between the desires and stated policy goals of open white nationalists and this administration. Certainly Stephen Miller, who is in the administration and seems to be the principal advisor on issues of immigration enforcement, is and has been called, you know, by groups such as the Southern Poverty Law center, as someone that's openly embracing white nationalist talking points. You know, to be clear, white nationalist has been at the core of much of our immigration policy since the first Immigration and Nationality act, which limited naturalization to white people alone. And so it's not as if this is arising from the Trump administration wholeheartedly. This has been something that has animated immigration discourse and certainly exclusion, the policing of borders, the policing of racial groups within the country. For the entire history of our country. I think that what we're seeing now, certainly that is renewed since the passage of the Civil Rights act, is that Trump is openly embracing not only having people that certainly embrace and champion white nationalist talking points, but seeking to actively recruit white nationalists into doing immigration enforcement work. There are historical precedents for this. Certainly in the 1920s, when there was a resurgent KKK, one of their strategies was to openly join law enforcement, internal law enforcement agencies, and recruit amongst other KKK members to join law enforcement. So the connection, as I studied in particular when I was with Liza at the Brennan center with our colleague Mike German, is this deep and long standing history and connection between white nationalists and law enforcement.
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B
Before we wrap, I want to ask you a question about Greenland, which Trump has threatened to take over. He wants to try to buy it. He's threatened military force if he's not allowed to buy it. He's threatened tariffs if European countries don't allow him to buy it because they are doing their best to stand in the way. And he sent a text to the Prime Minister of Norway saying that he no longer felt obligated to pursue peace, considering your country decided not to give me the Nobel Peace Prize for having stopped eight wars. Plus, I no longer feel an obligation to think purely of peace, although it will always be predominant. But now I can think about what is good and proper for the United States of America. The world is not secure unless we have complete and total control of Greenland. Thank you. And then he also said that we need to have Greenland for psychological reasons. You're both experts in law. These are not legal arguments. What do you make of this?
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D
Well, first I would say that whether or not you decide to go to war turns on whether or not you got the Nobel Peace Prize. That's a pretty good sign that you shouldn't have gotten the Nobel Peace Prize. But as a matter of law, under our constitutional system, it is Congress, not the President, who decides when, where and against whom the nation goes to war. Now, certainly if the United States is attacked and if it's necessary to use force for self defense, the President does not have to wait for Congress. He does have inherent constitutional authority in that situation to use military force. But of course, that's not the case in Greenland. It wasn't the case in Venezuela. And also, you know, the United States is a signatory to the UN Charter, under which we can't just go into a sovereign country and take it over. And that treaty has been ratified by the Senate. That means it is the law of the land. And the President is required again under our Constitution to faithfully execute the law. So on numerous counts, it would be not only illegal, but a violation of the separation of powers in the Constitution, a violation of the President's obligations to execute the law. For the President to take these actions, it's not a close call. The President does not have the legal authority to invade and take over Greenland.
- [41:45]
C
Like Liza, I think clearly it shows the incredibly capricious nature on which we're supposedly running our foreign policy today. But I see really clear through lines, I think, from what is happening beyond our border to what's happening within Minneapolis. Right. And so we have this flexing of power, we have this daring of both the world and also the states and also of Congress to, to say, okay, I'm going to assert that I have this authority and I'm going to ask who's going to stop me. You know, in many ways I see that as the overriding message between not only what's happening in Greenland, but also Venezuela and also that's happening on the interior of our country. One of the other things that I think we see, and this is where I think of this as a moment of continuity, is that we've seen, you know, really since 9, 11, each successive administration, both Republican and Democrat, continue to incrementally ratchet up and push against the separation of powers question, as Liza has said. So I think that what we're seeing is what happens when our constitutional system, our separation of powers, our different branches of government abdicate their authority and abdicate their responsibility to rein in the executive. And so one of the things that I see that's occurring both on the international stage, but at home, too, is that this power imbalance is not being met with people rolling over. I think that what we see when our government withdraws protection from some while preserving it from others is that our ideas of security and our expectations of security don't disappear, they just reorganize. And so locally, we're seeing it reorganize on an interpersonal level where neighbors are taking care of each other, where we are understanding that we are responsible for our own security when we can't trust the government to secure us. And on the international stage, we see the same sort of reorganization as well. We see our NATO partners, I think, understanding that this might not be bluster and that they need to be prepared to respond both through diplomatic means, but also, I think, through a show of solidarity with the people of Greenland and the people of Denmark.
- [44:14]
B
Well, I want to thank you both very much.
- [44:17]
C
Thank you. Thank you so much, Terry.
- [44:19]
B
Elizabeth Goyting is senior director of Liberty and National Security at the Brennan center for Justice. Emmanuel Malion is a professor at the University of Minnesota Law School. Our interview was recorded yesterday morning. A few hours after our interview, federal prosecutors issued subpoenas for at least five of Minnesota Democratic officials, including Minnesota Governor Tim Walz and Minneapolis Mayor Jacob Fry. The subpoenas are reportedly part of a Justice Department probe into whether state officials were conspiring to impede federal immigration law enforcement operations. Tomorrow on FRESH air, Pulitzer Prize winner Kiera Alegria hoodies. She collaborated with Lin Manuel Miranda on the musical in the Heights and the animated film Vivo. In her debut novel, the White Hot, a mother abandons her 10 year old daughter, then writes her a letter on her 18th birthday to explain. I hope you'll join us. Fresh Air's executive producers are Danny Miller and Sam Brigger. Our technical director and engineer is Audrey Bentham. Roberta Shorrock directs the show. Our co host is Tanya Moseley. I'm Terry Gross.