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The Lawfare Podcast
Lawfare Daily: Federal Judges Rule Against Trump on National Guard Deployment, Tariffs, and Removal of Migrant Children to Guatemala
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- [00:01]
Benjamin Wittes
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- [00:34]
Adam Grant
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- [01:07]
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- [01:31]
Anna Bauer
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- [01:32]
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- [01:46]
Scott R. Anderson
The reason the Trump administration thinks it can implement these policies is because it reads the case law, reads the circumstances, the political government conditions, the institutional inclinations to all say the president can do what he wants with the statute, and there's not really meaningful limits on that.
- [02:01]
Benjamin Wittes
It's the lawfare podcast. I'm Benjamin Wittes, editor in chief of lawfare, with lawfare senior editors Scott R. Andersen and Anna Bauer and lawfare public service fellow Lauren Voss.
- [02:15]
Lauren Voss
This is the first time that protective argument has really seen the light of day. It's all based on an OLC DOJ opinion from 1971, right? So we haven't seen this conversation. So it's kind of new right now, but interesting nonetheless. And so just I'm happy that it's finally out in public today.
- [02:33]
Benjamin Wittes
We're talking about Sunday's emergency hearing in LGML et al. V. Christi Nome, in which Judge Sparkle Sukhnanan blocked the Trump administration's plans to send unaccompanied migrant children to Guatemala. We're also talking Judge Charles Breyer's ruling in Newsom v. Trump, which found that President Trump's use of the National Guard and U.S. marines in Los Angeles violated the Posse Comitatus Act. And we're talking about the Federal Circuit Court of Appeals ruling striking down Trump's tariffs on International Emergency Economic Powers act grounds.
- [03:18]
Scott R. Anderson
Foreign.
- [03:23]
Benjamin Wittes
Let's get started. First of all, where does the name Sparkle Sukhna Non come from? Because I can't, I still can't say it without a grin on my face. And let's, let's just identify, let's just get it off the table. Who is Judge Sukmanan? And. And is Sparkle a nickname or is that actually her first name?
- [03:47]
Anna Bauer
As far as I'm aware, her first name is actually Sparkle Sukhnon. Judge Suknan was born in Trinidad and Tobago. To be honest, I did not, I'm not aware of much more of her background than that. So my apologies that I didn't come.
- [04:04]
Benjamin Wittes
For the best name of anybody on the federal bench.
- [04:08]
Anna Bauer
Yeah, that's what I was going to say. Is that all that I know is that whatever the origin of the name, it is a fantastic name, and I think only closely rivaled by maybe Sunshine Sykes in, I think, sitting in California. I can't think of another name of a judge.
- [04:29]
Benjamin Wittes
Sunshine is awesome, but Sykes is kind of boring. Whereas the thing about Sparkle Sukhnaan is that she's got an awesome first name and an awesome last name. She also was only recently on the bench. It's not quite Judge Ali kind of recent, but it's, it's like she showed up there and it's like trial by fire. Right, Right.
- [04:53]
Anna Bauer
I mean, and, and look, she, this is. She was on emergency judge duty when this case arose. And so it's kind of. And it was over a holiday weekend, Labor Day weekend. And we can talk a little bit more about the circumstances of the case. But, you know, regardless, she certainly was. Did not have a normal Labor Day weekend.
- [05:18]
Benjamin Wittes
Well, and neither did it turned out. And the country owes you a bit of a debt of gratitude because you spent your weekend making sure that anybody who wanted to know about this case could, in fact, know about it. So set it up for us. It's Sunday morning. You're minding your own business, having a normal Labor Day weekend. And what happens.
- [05:48]
Anna Bauer
And well, okay, so this is. I first became aware actually of the case because luckily, Kyle Cheney was watching the docket as he usually is, and he mentioned at one point on Sunday morning that there was an emergency filing the night before, or I guess technically the same day, around 1:00am in the morning, a group of attorneys acting on behalf of a number of unaccompanied migrant children from Guatemala filed a complaint in D.C. district Court and then subsequently about an hour later, filed a motion for a tro. The reason being that a few hours earlier that night, and I want to check myself, I think it was like around like 10 or 11 attorneys and care facilities for some of these children. And these are children who, because they are unaccompanied migrants, are in the custody and care of orr, which is a part of Health and Human Services Department. Many of them are in different care facilities throughout the United States and different states, foster care programs, that kind of thing. So in the days leading up, and then even some of them, you know, hours before this happened, the attorneys and care facilities started receiving notices that the children were going to be moved out of, you know, where they were, and then they were starting to be, you know, moved, and then the. With the intention of putting them on planes. So this suit was filed to, you know, put a stop to this because some of these kids are people who still have ongoing immigration proceedings. It was unclear precisely what authority the government was going to be relying on to kind of summarily remove them from the United States to Guatemala. And this emergency motion was filed, as we later learned from Judge Sukhnen, during the hearing, the judge was alerted to all of this. Around two in the morning. She called her clerks. Her clerks got up, they tried to get in touch with the government, called the people at doj, trying to get in touch with them to get what the government's position was. And without hearing from the government, they couldn't get in touch with them to see what was going on, to get a grasp of what the government's position would be. The judge went ahead and entered a temporary restraining order as to the 10 named plaintiffs who were were a part of the suit that was filed around 1am so that's where it was when I woke up on Sunday morning and see that we've had this action overnight with a suit has been filed, a motion for a tro. A TRO has been entered as to the name plaintiffs. But the bigger question is what's going to happen with the people who aren't named plaintiffs? Because at this point, counsel for the children in the case have been made aware that there's all these other children who could be impacted by this. So there's a motion to certify the class that could affect any child who potentially would be removed to Guatemala. And so Judge suknan sets a 3pm hearing. And I see this, and I'm like, oh, great, I've got some time to go out and do whatever I have planned for the day, and then I'll come back and listen to this 3pm hearing. But sure enough, the judge gets word from the plaintiff's attorneys, who report to the judge that even though there's a 3pm hearing on this motion to certify the class, there's kids who are being loaded onto planes, and that it's a very imminent situation. So the judge moves this hearing up to 12:30pm as a way to try to get ahead of it. And then we haven't heard anything still from the government at this point, at least not on the public docket. And we later learned that the judge wasn't able to get in touch with the government even until later that morning. And so right when this hearing is about to start, Ben, at 12:30pm on the docket, hits a new TRO that is covering the entire class. And that turns out to make all the difference, because in the first five minutes of the hearing, the judge informs Drew Ensign, who people might remember as a DOJ attorney who's handled a lot of these high profile cases, including the Alien Enemies act case, before Judge Boasberg. Immediately when the hearing starts, Judge Suktanon says, Mr. Ensign, I just entered a TRO. Were you aware of it? He says, no. She says, okay, well, I'm going to pause and I want you to go inform your clients, communicate this to them, and tell me what the situation is with the planes. He goes and does that. He comes back and he tells her, judge, my understanding is that the planes have been grounded. There may have been one plane that was in the process of taking off or took off, but it has since, as I understand it, been turned around. So, Ben, it's very much a repeat situation of what we saw in the JGG case before Judge Boasberg, where there's a TRO hearing that's ongoing and the government is making efforts to go ahead and remove people before the resolution of that hearing. And in this case, it made all the difference that Judge Sukhna at the beginning of the hearing, went ahead and enjoined or restrained that.
- [12:11]
Benjamin Wittes
And it makes a difference that she did it in writing rather than an oral opinion that is subsequently memorialized, right?
- [12:21]
Anna Bauer
That's right. And so then, Ben, we, during the hearing, still get into these issues. You know, like I said, one of the questions was kind of, what is the legal authority for this? Because there's a lot of protections that, especially unaccompanied children in the United States have regarding access to counsel before they're removed, you know, being able to access immigration proceedings before they're removed, all. All types of things that are, you know, statutorily afforded to children like this, particularly because of their uniquely vulnerable status. And the judge tries to get a sense of what exactly the government's doing here by kind of just summarily removing these kids, many of whom have ongoing proceedings. The answer that we get from Drew Ensign is, to my mind, a bit odd, and I am still looking at the issue. But the. The answer that he gave is that under Title 6, Section 279, which is a part of the United States Code, that basically transfers functions of DHS having custody over these kids to putting them in the care of ORR under hhs. And it sets out a number of different responsibilities that ORR has, including looking after the best interest of the child, coordinating and implementing their care arrangements, various different responsibilities that they have as to the custody of these children. Provision under that list says something to the effect of reunifying children with parents abroad where appropriate. And the idea that the government seems to be going with as its legal basis is that that sets out an independent statutory basis for the removal of children where it's for the purpose of reunifying them with parents who are abro. The government has said that the Guatemalan government requested the return of these children and that, you know, their parents requested their return or a custodian requested their return. That's something, though, that the plaintiffs very much disagreed with that account, at least in some instances. Some of the declarations that they filed with representations from some of these children include children who said that, you know, they're afraid to return to Guatemala because they're their kids who suffered abuse by one or both parents. In some instances. You know, there are kids who said that their parents received a call from someone who said, your. Your child's going to be deported as a part of a larger group. Their parents, in other words, never requested their return. They just kind of were told that the child was going to be returned. So there's a lot of stuff going on here that contradicts the government's narrative. And Judge Suktanan was not really buying it, because if the government's legal basis, if you follow their argument, it would mean basically that this one little provision about ORR would displace all of these other protections that these kids have in other statutes, including the Immigration and Nationality act and the Trafficking Victims Protection Reauthorization Act. So she's not buying it. Decides to keep everything in place. But the issue is that the government wants five whole days to be able to brief this. And Judge Sufden finds that a bit odd, given that, you know, this is such a rushed effort and then, you know, they come in there and suddenly need five days to even brief the issue and don't seem to have a lot of answers for the judge about what the exact legal argument is, but she's willing to give that to them. So she says, all right, well, I'll give you until Friday, and then we're going to have a response and a hearing and all that. However, I will say that this case, keep in mind, was just. She was the emergency duty judge. So the case was never actually fully assigned to Judge Sukhnen. And so we got a new assignment of a judge today. It has gone to Judge Tim Kelly, who's a Trump appointee. So although Judge Suktanan has already set a schedule for the briefing and had planned to keep her TRO in place for 14 days until this briefing and the hearing could be complete, now the case will go to another judge. I also will add to Ben, that in this whole scenario, one of the more remarkable things is that Judge Sukhnon kept a very tight leash on the government, and particularly on Drew Ensign, who was handling the matter after the hearing was over, because she ordered the government to return these kids to where they came from in ORR custody, meaning the foster care programs or the care facilities that they had come from. And she, every few hours, asked the government to provide a status report on whether each one of these kids had been returned to their respective facilities. In total, there were five status reports that the government was required to file before the end of it all. So I think, again, she had learned from the situation with Judge Boasberg and the Alien Enemies act case that you kind of have to keep tabs on the government because the presumption of regularity has been obliterated at this point.
- [18:50]
Benjamin Wittes
Yeah, I mean, I think this is what it looks like when a judge does not attach a presumption of regularity to government action or to attorney representations in her courtroom. So the way it has been resolved at this point is that the planes were unloaded, everybody went back to where they came from. We have a briefing schedule on Friday, and it is in front of Tim Kelly, not in front of Sparkle Suknan. Is that right?
- [19:21]
Anna Bauer
That is right, yes.
- [19:23]
Benjamin Wittes
And I will just remind everybody that Judge Kelly, though he is a Trump appointee, was the judge who handled, I believe, the Proud Boys case. Acquitted himself extremely well in that case and is a. A very good citizen of the D.C. district Court and certainly somebody who deserves a presumption of regularity as a judge.
- [19:59]
Anna Bauer
Oh, sorry. Just quickly, I'm reminded that there is a motion to extend the briefing deadline from the parties. I am not sure if Judge Kelly has issued an order to that effect, though, so things could be extended even further.
- [20:12]
Benjamin Wittes
And when is the hearing currently scheduled for?
- [20:16]
Anna Bauer
It was previously scheduled for the week of September 10th, I believe, but I can't recall. Was it the 12th? Maybe John will correct me. I think it might have been the 10th.
- [20:37]
Benjamin Wittes
And the government is not trying to do any of these deportations before then.
- [20:43]
Lauren Voss
Right.
- [20:43]
Benjamin Wittes
It's not like they're gonna go to the DC Circuit tomorrow and say, hey, dissolve the tro.
- [20:50]
Anna Bauer
We don't know. It's unclear. They potentially could try to do that. You never know. But frankly, my perception of Drew Ensign's handling of the matter during the hearing is that he himself did not have a great grasp on what exactly legal basis and legal arguments the government would intended to make would be. He even told Judge Sukhnen, you know, your honor, this case is new to me, too. He did some. He made some odd representations that just gave me the idea that maybe it's not something that he himself was fully, you know, had a handle on. Like, he said at one point that the statutory authority they were invoking gave the Secretary of Homeland Security the power to reunify unaccompanied children with their parents abroad. But the statute itself actually is about Orr's authority. And so that's a little bit odd. You know, there were just a few things that it seemed like he said, oh, other secretaries have done this before. It's not new. But then he never gave any examples. So I'm just not entirely convinced that the people at DOJ who need to have a handle on this are fully up to date on it and maybe need a little bit of time to figure out what. What the plan is.
- [22:21]
Benjamin Wittes
Gotcha. All right. Meanwhile, in Los Angeles, California, a different case was in front of a different district judge. Lauren, we have been following Judge Breyer's handling of the National Guard deployment in Los Angeles, but it's all been kind of forgotten about, at least on this coast, because of stuff going on in D.C. seems like Judge Breyer did not forget about it and this morning declared it all unlawful. So what's going on in California?
- [23:05]
Lauren Voss
Yeah, it's kind of like Christmas came early because we're finally talking about the protective power openly and what it means. So Justice Breyer came out and held that the federal deployment of National Guard and active duty troops in California violated the Posse Comitatus act with their actions. So he enjoined future use for law enforcement, not just the National Guard, but active duty troops, until they're able to satisfy the constitutional statutory exceptions to the, to the PCA, however, that he stayed that injunction until the 12th of September.
- [23:44]
Unidentified Legal Analyst
Right.
- [23:44]
Lauren Voss
So not, not in place right now. So but remember this was, you know, the case Newsom v. Trump filed back in, in June. There was the TRO that was approved not to deploy the National Guard. It was National Guard specific right. So not to deploy the National Guard and return control to the state.
- [24:04]
Unidentified Legal Analyst
Right.
- [24:04]
Lauren Voss
Because they've been federalized. Defendants appealed Ninth Circuit originally administratively stayed the order. They expedited the argument and then issued an order staying the temporary restraining order pending appeal. Interestingly, they concluded that the National Guard was likely lawfully federalized.
- [24:22]
Unidentified Legal Analyst
Right.
- [24:23]
Lauren Voss
Under title 1012 403. The third justification, which was that the President is unable with the regular forces to execute the laws of the United States case, which is interesting from a factual basis, but they said that's because there should be significant discretion to the President.
- [24:42]
Unidentified Legal Analyst
Right.
- [24:42]
Lauren Voss
As long as there is a colorable good faith basis for this justification. They did not weigh in on the PCA issue.
- [24:50]
Unidentified Legal Analyst
Right.
- [24:51]
Lauren Voss
So Judge Breyer advanced the trial on the merits on the PCA claim. He had the trial that Anna covered 11 to 13 August. The the opinion, it's about 54 pages. You know, it's worth reading. I'd say, you know, he, he walks through some really interesting things. So he goes through there's three tests for the pca, right. But he says actually, you know, if at the core it's just one, did the military execute domestic law or actively assist in the execution of domestic law in such a way that it would violate the pca?
- [25:25]
Unidentified Legal Analyst
Right.
- [25:27]
Lauren Voss
And remember, the PCA allows for explicit constitutional or legislative exceptions. And I say explicit like that because the argument here from the defendants is the protective power and that it's an inherent constitutional authority to protect federal property, federal purposes, federal personnel. Right. And so by claiming it's inherent, it's not explicit.
- [25:50]
Unidentified Legal Analyst
Right.
- [25:50]
Lauren Voss
And this goes back to the Take Care clause, right? Laws be faithfully executed, which is just interesting because you have explicit constitutional provisions. And Breyer, you know, kind of goes through these and he also goes through the legislative exceptions. So there's an argument that 12406 is also a legislative exception that the defendants make. He Says, you know, I can't find anyone has ever made this claim before.
- [26:15]
Unidentified Legal Analyst
Right.
- [26:15]
Lauren Voss
The Department of Defense has an instruction on defense support to civil authorities. It lists all the exceptions. This one's not included. There's all of these other scholars cases. They never cite this. And that's because 12406 is thought of as a mobilization authority.
- [26:30]
Unidentified Legal Analyst
Right.
- [26:30]
Lauren Voss
Not a mission authority. But he goes on to say, if you read 124 06, and specifically the third provision, if the president is unable with the regular forces to execute the laws, as the ninth Circuit did, he said, they actually said, as long as it's significantly impeded, you don't need to necessarily go to the extreme of the statute that said unable with regular forces to execute the laws, and you give all this deference to the president, then this exception to the PCA actually swallows the rule. And he gives a great example of if the IRS data says people are using tax shelters, you could claim that you're unable to execute the tax laws. And kind of shows you the extremes here. But looking at the facts on the ground here, you have the military deployed and doing law enforcement missions in areas where there's arguably low to no risk. The military did their own assessments of what the risk would be. In some cases, like MacArthur park said this was low risk, no known threats, and that it's a show of presence. It's not even, you know, they're actually a protective mission. But you see them time and time again, blocking roads, stopping people, doing a number of things that, you know, they actually got briefed on what you can't do under the Posse Comitatus Act. And there were four things on the slide in red that, you know, these are things you cannot do. But they were verbally told that there is a constitutional exception that the president can make and so that they can do those four things.
- [28:11]
Unidentified Legal Analyst
Right.
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Lauren Voss
And so they continued to do those and admit it, that they can do security patrols, traffic control, crowd control, riot control. And in some cases, we saw some things that they could do, you know, quick seizures and searches. And so we see these violations popping up and being told that, well, there's this exception that exists. But it's really interesting from the standpoint of in situations where there was no real threat, then you could basically be using federal forces all over. And that's kind of what you saw in California. But you see implications for this, I think, in various other uses, too. Right. So the administration usually says the mobilization authority when they do things, but not the mission authority. So we're seeing this in D.C. right now, it's a Title 32 deployment.
- [29:02]
Unidentified Legal Analyst
Right.
- [29:02]
Lauren Voss
But arguably the assumption is that there is a similar argument behind it on the protective power. That was the argument they made in 2020 when they, when they deployed the National Guard. It's probably the argument that they're thinking of making in Chicago, in Baltimore, San Francisco was referenced. So you could really see this continuing on. It's just this is the first time that protective argument has really seen the light of day. It's all based on, you know, an OLC DOJ opinion from 1971.
- [29:35]
Unidentified Legal Analyst
Right.
- [29:35]
Lauren Voss
So we haven't seen this conversation. So it's kind of new right now, but interesting nonetheless. And so just. I'm happy that it's finally out in. Out in public.
- [29:47]
Scott R. Anderson
I can't believe they're having a gender reveal for their dog.
- [29:49]
Benjamin Wittes
No, no, no.
- [29:50]
Scott R. Anderson
This is a breed reveal. Oh. So, yeah, they're finding out the breed of the puppy they're rescuing, so they could just be spending all their money on, like, pet insurance instead. We got lemonade for Roscoe and it covered vaccines, microchipping. We save 90% on vet bills.
- [30:05]
Benjamin Wittes
Oh, here we go.
- [30:09]
Scott R. Anderson
What do you think beige confetti means? I don't know that we'll never get this Saturday back. Get a quote for any breed@lemonade.com pet.
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- [31:49]
Benjamin Wittes
All right, so help me out here. I, in my entire adult lifetime, I have exactly zero experience with a successful Posse Comitatus act claim. It's kind of one of those phrases I learned when I was 23, and it was cool to say, oh, but the Posse Comitatis Act. And then you see how many cases there are where people say, oh, but the Posse Comitatus act says blah, blah, blah. And it never actually means that you can't do whatever the President is doing. And so my question. Talk me out of my cynicism here. This will get reversed by the ninth Circuit, and if it doesn't, it'll get reversed by the Supreme Court because the Posse Commentators act actually doesn't prevent the President from doing. I think the technical term is jack shit. What am I getting? What am I wrong about here?
- [32:52]
Lauren Voss
Yeah, I'm a pessimist, so I don't know that I would say that you're wrong. I think the Judge Breyer made some interesting arguments here specifically about the need for injunctive relief. And while it's a criminal statute, that there simply isn't any other option here except for the injunction as. As he sees it, and that otherwise you would just have this law on the books that has no way to implement it. And it is one that is, you know, grass is it is inherently put into the Constitution.
- [33:28]
Unidentified Legal Analyst
Right.
- [33:28]
Lauren Voss
Like this is not a power for the President.
- [33:32]
Unidentified Legal Analyst
Right.
- [33:32]
Lauren Voss
This is a power for. For Congress. This is in the calling forth clause.
- [33:37]
Unidentified Legal Analyst
Right.
- [33:38]
Lauren Voss
Like that they had this power. They've put out these other provisions, whether it be the Insurrection act or a number of very, very narrow ones. And so Justice Breyer actually walks through Youngstown Steel, not because it is a military deployment, but just that same type of idea that this is not an area where the President has exclusive power. This is an area where Congress has much of the power. The President has the Commander in Chief clause, but the power to actually use the militia in this way is given to Congress and they have legislated in this area. And he would argue legislated very clearly.
- [34:21]
Scott R. Anderson
Yeah, it's a really interesting part of the argument. Just to layer one observation on here. To get to this sort of claim, the court has to buy into the theory put forward by the plaintiffs that there is a valid ultra virus claim here, which is a difficult argument. To make most of the time it's a sort of a claim exists only where the government is alleged to have violated a direct and express statutory obligation or direction. Now they have that here, arguably with the pca. Except the PCA as, as Lauren just described and as Anna noted in describing the this is a big point of contention in the hearings around this is described as a criminal prohibition. So is that actually a prohibition on the executive branch or is it a provision that says hey is a criminal law and therefore the president gets to exercise prosecutorial discretion over how it is enforced? That discretion, remember after the Trump immunity decision from last term has become a big focus of this administration, they really lean into dicta in that opinion that suggests the President has exclusive authority over prosecutorial discretion. And that's something that the government really tried to lean into in arguing this is not the sort of clause that provides a clear statutory conflict that can rise to an ultra virus claim. The judge rejected that here. I have to say it is the weakest part of the opinion. He doesn't make a real life effort. He does it in a paragraph and he basically says, like Lauren described, if you're going to have this sort of prohibition, it would never have been effective in the first place if it's always up to the executive branch to enforce it against the executive branch. I think what he's neglecting is that actually it was intended to be enforced not against the President. It was intended to be enforced against like military commanders in the field who were deployed in frankly the people, the post bellum south after the Civil War and using military in ways that were very controversial. Remember this was a measure installed by Congress to restrict the ability to use the military in the post, post Confederacy states. Right. So it's a tricky part and I think that's the part we're going to see some real pushback. The rest of the analysis strikes me as like fairly sound and frankly in some ways hard to reach an alternative conclusion. Although there's little, you know, nuances in different places. But that, you know, this jurisdictional question is, is a real one. Doesn't mean the PCA doesn't do anything. It does in other cases. Ninth Circuit has said, hey, the PCA can mean you don't get evidence in your criminal case. It means detentions can violate the fourth Amendment. There are lots of recent cases on the books on this relatively recent 10 years ago is the most recent one I'm aware of. But, but that doesn't necessarily provide the affirmative basis for a claim like this because there's also no statutory. You can't bring an APA claim. There's a military exception, there's no other statutory cause of action. So in the absence of this, the hook for an ultravioles is I think, the weakest part of the opinion. And the judge doesn't help himself in treating it pretty cursorily.
- [37:06]
Benjamin Wittes
And so where do you think this fails? Is this a situation where this goes up and the ninth Circuit says, come on, or is this a situation where, you know, in a kind of very 1990s sort of way, there's the law of the Ninth Circuit and then the Supreme Court reigns the whole thing in.
- [37:30]
Scott R. Anderson
Lauren now, if you have thoughts on that, I don't think we know what panel is going to get the 9th Circuit, so we don't know that yet. The overall 9th Circuit is not the friendliest, but also not the least friendly. The Trump administration, I don't think we really know how they're going to come down on this. I don't think the panel opinion previously was a big departure from how the whole en bang court may look at it. We also have to remember there's a, there's a mootness argument here. Like there are still federal troops in la. They're not actually doing a lot of this stuff currently. And so a court that's anxious to avoid the constitutional questions may have see good reason to say, well, this is moot and we have this ultraviolet issue and we have all these other issues, maybe we just moot out this whole thing so we don't have to deal with it. And then the risk of a contrary legal action will still hang over the administration in the future and maybe help to curtail some of these things in other contexts. I think it's very plausible and it's.
- [38:17]
Benjamin Wittes
Moot because the deployment is over in LA or because the deployment is ending. Why is it moot?
- [38:25]
Scott R. Anderson
So the judge denied, like found it was not moot in this case. But I still think there's a colorable moodist argument because there's 300, I think, current soldiers still deployed in LA and they're not actually actively engaged in a lot of these activities at present. They might again in the future. That's why the judge in this case said, oh, this isn't moot. We're going to go ahead and reach this issue and that's why it warrants an injunction. But I don't think you are. I don't. I could see other courts, particularly those anxious to avoid reaching the difficult statutory and underlying constitutional question, saying, look, if this isn't currently happening, we're not going to deal with this on a hypothetical basis. Let's wait for some ongoing actions and then we'll address them when they arise. I don't know if you disagree, Lauren. That was my sense of this.
- [39:06]
Lauren Voss
But no, I actually think that that's the most likely with the 300 that are left and the missions that they're currently taking on. And I think that that might be something that the administration purposely sets up to make to help make that argument. The only thing that I would add is I just think I just agree on, like, this criminal statute piece. There's a lot of debate on the history of the PCA and what it was actually meant to apply to and whether or not it was meant to apply to the President. But one of the things that's more recent that we have is the sense of Congress that came out in 2002 on the PCA. And when you read that, you, you can make a credible argument that what they're saying is like, it was not meant to apply to the President.
- [39:54]
Unidentified Legal Analyst
Right.
- [39:55]
Lauren Voss
You know, they say things like, you know, it's authorized by an act of Congress or the President determines that the use of the armed forces is required to fulfill the President's obligations under the Constitution.
- [40:07]
Unidentified Legal Analyst
Right.
- [40:07]
Lauren Voss
Like they're writing that deference into there. This is complicated. This hasn't come up much in court. I would think that they would find a way not to actually get to the answer. So I agree with Scott on most of those points.
- [40:19]
Benjamin Wittes
So one additional question on this, I would be remiss if I didn't ask whether it has any implications for the District of Columbia, which also has a National Guard slash federal deployment. My impression is that the authorities for that are a completely different and B, that they are National Guard, not regular troops, and therefore nothing about this would have application to the current deployment in the District. Is that correct?
- [40:51]
Lauren Voss
So you can't directly map it on. Right. Because they're in, you know, the D.C. guard is, is mobilized under D.C. code. The other states are under Title 32, 502 F. But there is this argument that 502 F, because it is a federal mission, but you stand your state command and control, Posse Comitatus doesn't apply.
- [41:14]
Unidentified Legal Analyst
Right.
- [41:15]
Lauren Voss
And that really also hasn't been fully argued out in the light of day. So you could see a, a parallel argument. But you also, as of now, you have the administration saying that the national guard in D.C. are not doing law enforcement functions. They're not doing anything. So you don't have to get to the issue of whether or not the PCA applies because they're not doing anything that would violate it.
- [41:38]
Benjamin Wittes
Right. They're picking up the trash, standing around looking bored.
- [41:43]
Lauren Voss
Yeah, but I mean they are, they're armed now.
- [41:46]
Unidentified Legal Analyst
Right.
- [41:46]
Lauren Voss
There is the potential that you could get into that one day. But with their, with the facts on the ground right now, you don't have to get to whether or not the PCA applies to Title 32 because they're not violating it.
- [41:57]
Benjamin Wittes
Right. All right, well, let's turn to tariffs. Scott. The Federal Circuit Court of Appeals handed down this opinion during Friday's lawfare Live. And I just want to reiterate to all federal courts of appeals that is a no go zone. Do not hand down opinions while we are recording things. It's super rude and it does keep happening. It does keep happening. There is just no respect for our production schedule here. So we only talked about it very briefly on Friday. But today is a new day and you've actually had time to to peruse it. How big a deal is this?
- [42:49]
Scott R. Anderson
It is a notable deal. I don't think it's entirely unexpected. The court reached a very similar conclusion to what the Court of International Trade reached its initial opinion. Although I should note I'm seeing in the chat somebody's flagging that they actually amended it evidently this morning, which I have not gotten to look back and see what the amendments were. They were not synced yet in court listener and I barely looked. Sounds like it was not a big amendment, but I'm talking about the Friday version, not whatever happened the last few hours which sounds like it was not too big a departure on the substance. That said in this particular opinion we had the Court of International Trade had previously determined look, IPA doesn't clearly authorize these sorts of actions. They actually go went ahead and reached summary judgment on it, reached a final judgment even though the initial motion had been for a preliminary injunction, if I recall correctly said essentially hey, you know, we are going to go ahead and just resolve this matter so we can get it on track to actually eventually reach the Supreme Court where everybody assumes is going to end up eventually to the on full appeal to the Federal Circuit, the federal circuits that also trying to expedite things said hey, we're going to skip that whole step where we usually have a three judge panel hear this first. We're going to go straight on bonk and hear it herd argument on it. Considered it with the full 11 judge panel of active judges on the Federal Circuit seven of those judges basically agreed with the Court of International Trade. What they said was, look, this is a case where IIPA is, while it has very broad language, doesn't specifically talk about tariffs, doesn't specifically talk about regulating and collecting taxes and that sort of thing that you associate with tariffs. It talks really about blocking, stopping, regulating economic transactions, but not the sort of things we might associate more specifically with tariffs, which is a very well established category of sort of economic action or economic policy, both at the time it was enacted and for a long time in American history. I mean, tariffs have been around since the Constitution was written. And, and I noted that in those sorts of cases here, we're dealing with a set of policies that under the major questions doctrine that the Roberts Court has really laid out over the past two or three terms. These are clearly things that fall into the major questions doctrine category. And they do actually some direct comparisons between the sheer dollar amount, a number of peoples implicated between the policies the Trump administration is implementing here and those adopted, those that the Roberts Court found qualified for the majors question doctrine in the last few years, like the Biden administration's student loan forgiven program. They pointed out the sheer scale of economic impact and individual impact is massively larger than a lot of these policies that implicated the majors questions doctrine in the Supreme Court's view. So this kind of has to implicate major questions doctrine. And that means we're supposed to look with a lot of scrutiny and say, did the statute actually authorize this? Is this clearly within the contemplation? It's not quite a clear statement rule or express authorization rule, but it is in that direction, saying, is this something clearly Congress intended to authorize? And the Court said, no, we just can't get there because IIPA doesn't specifically address any of this stuff. They noted their the legislative history that was leaned on by the Court of International Trade, pointing out the. The Trade Reform act and other acts that were enacted in 1974 around the same time as IPA that more specifically addressed state tariffs. And there was no sign that there was an effort to kind of like just completely supersede those with IPA or overcome them. And it did spend some time addressing the Uchida opinion. This was an opinion addressing a set of tariffs the Nixon Admin had implemented under the Trading with the Enemies act, which has very similar language and was the predecessor to ipa, where it actually upheld tariffs the Nixon administration had imposed. But the Court here pointed out, yeah, it upheld them, but only on the express grounds that it laid out, saying because they're very narrow, they're very calculated. They don't really buck up against what Congress had authorized or the broader tariff policy. There are small exceptions to that. That's not what's happening here. So essentially the court came out of the view that yeah, maybe the President can impose some small tariffs under aipa. There are certain situations, but these actions are so dramatic, so substantial, they are well beyond what Yoshida considered. They implicate the major questions doctrine. And therefore was something that, with that level of scrutiny that we're required to impose by the major question doctrine, we just can't get to that sort of outcome. Notably, of the seven judges had joined that sort of majority holding and there's the jurisdictional aspect actually was unanimous across all the different judges. Four of those judges joined a concurrent where they said that we would have gone even further. We don't think the President can impose, impose any tariffs under ipa. And in fact, if you interpreted IPA as broadly as the President claims to, that would raise a non delegation doctrine problem. That would be unconstitutional reading unconstitutional action on the part of Congress that we can't read the statute that way. So they would have gone even further in a broader prohibition than the Court did in this case. The court again did say maybe some tariffs are acceptable, but not in this case, not under level screening. The major question doctrine requires. The four dissenting judges notably basically said, look, look, this isn't what why IEPA is very, very broadly worded. It mostly imposes procedural requirements, not substantive requirements. At least the substantive requirements imposed are so broad on issues we almost always defer to the Executive Branch on that. They don't, they're not really that restrictive in this case. They've met all the procedural requirements. The interpretation of the broad substantive requirements aren't wild, aren't out of bounds for such broad language. And they point out that the non delegation doctrine concerns that are both in the non delegation doctrine that the concurrence has talked about and that underlie a lot of the major question doctrine that motivate it don't apply in a foreign affairs context, or at least the Supreme Court has suggested they don't multiple times, going all the way back to the Curtis Wright decision of the 19. Around 1920. I can't remember exactly what year it is and that usually we don't consider delegation to be a really big issue in the foreign affairs context. And they see this as a foreign affairs case primarily. I would say the dissent's view is probably how most people would have thought about IPA conventionally before these tariff policies. But it's a real sign of the Times that at seven of these 11 judges, and notably it was a bipartisan move across both sides. You had Democrats in the dissent and Republicans in the majority. And there are no Trump appointees on the Federal Circuit currently. Interestingly enough, that sort of split, you know, I think is indicative of how challenging an issue set this really is.
- [49:03]
Benjamin Wittes
All right, I want to do the same thing I did with Lauren's analysis of Judge Breyer's decision, which is to say, come on, that's not how the Supreme Court is going to understand this. And I want to say, come on, Scott, the Supreme Court's going to take one look at this and they're going to say the major questions doctrine is about restraining the regulatory state. It's not about broadly worded statutes in the national security sphere where we give broad deference to presidential interpretation. This is a broadly worded statute that by its terms encompasses stat tariffs. And if the president says that this is a national security issue, whether it's because of fentanyl here or because of an emergency because countries are fleecing us here, the president says it's a national security issue. We are not going to apply the majority or questions doctrine or any non delegation doctrine. In fact, all of foreign policy and national security is Congress delegating things to the president and that's the end of the conversation. Why am I wrong?
- [50:22]
Scott R. Anderson
That's certainly the argument the dissent bought into. It's the argument the government advance. And like I said, I mean, I think it's probably the median logic that most people would have bought into before this kind of latest actions by what the Trump administration. That's what the Trump administration is leaning on. The reason the Trump administration thinks it can implement these policies is because it reads the case law, reads the circumstances, the political conditions, the institutional inclinations to all say the president can do what he wants with the statute and there's not really meaningful limits on that.
- [50:51]
Benjamin Wittes
Do you doubt that there are five votes on the Supreme Court for that position?
- [50:55]
Scott R. Anderson
I do. I'm not, I would not be very confident about it going in. I'm not, I don't. I'm not sure there aren't, but I'm not highly confident about it for, for two reasons. One, this court is actually not that friendly to broad foreign affairs. Deference to the executive branch. It embraces it. It's on board with it. I think it will, like you have certain justices that have particularly leaned strongly that way. Justice Kavanaugh as being one who's been particularly vocal about that and having encountered a fair number of foreign relations cases in the D.C. circuit where he was before in some ways made the court has drifted that way. But remember, this is the same court that in the Zivitovsky case you saw the dissenters, many of whom are now in the likely majority for a lot of issues of the current court. Justice Alito, Justice Thomas was a half concurrent, half dissent. Chief Justice Roberts and Justice Scalia, who's influential even though he's no longer with us. They basically said look, Congress has tons of foreign affairs authorities. We act. They actually expressly rebuked Curtis Wright's suggestion that somehow the executive branch is the only one who has foreign affairs authorities. They say no, you need to apply a Youngstown. You need to look at a lot of these are shares authorities. And we've seen that logic pop up again most recently and this is cited by the Federal Circuit. That's opinion in the full decision of just this past term, which is an extraterritorial jurisdiction case where they really made the case. Congress has a lot of foreign affairs powers that we shouldn't disregard. The president just doesn't just get to win because it's foreign affairs. And you have that combined with the fact that this is the court that just last term enacted Loper Bright or adopted Loper two terms ago, I guess now held in lor bright. Hey courts, you should start reading these statutes. Stop deferring on how the executive branch interprets them. Now. Yes, there is this question like does that that presumption against interpret deference in the regulatory context extend to the foreign affairs national security context? There's good reason to think it doesn't as fulsomely that there are lots of contexts where, you know, it might not apply. But that doesn't mean that there isn't some underlying logic there. This court is going to still buy into to say no, these are statutes in the end and the courts need to be interpreting them and can't just defer to the executive branch whether it's for foreign affairs deference or or for Chevron deference. And this isn't clearly just a foreign affairs case. Yeah, there's a strong foreign affairs element because engage with the outside world. This is affecting every single American citizen's pocketbook domestically. Every aspect of our economy is substantially impacted by these. You cannot hide yourself your eyes and pretend like this is just a foreign affairs case. If you do that, you're gutting a lot of loper brain because there are a lot of policies that could be cast as substantially foreign affairs cases that have a lot of domestic remains ramifications. So I think it's actually a harder case for the Supreme Court than one might expect. And we see that again in this court. It is a lot of competing interests, competing legal trends intersecting here. And it's not clear. It's not super easy to me to see how they get disentangled.
- [53:36]
Benjamin Wittes
Anna, Lauren, do you want something fun?
- [53:38]
Anna Bauer
Which is apparently you can now bet on that then with like real like there are people who are doing trade. I don't look, I like I. Everything that I know, as I've said before about hedge funds and trading things I learned from the TV show billions and industry. So I am not the person to talk about this or to do this, but apparently you can. Now there are people making trades on this, including I think Howard Lutnick's son, apparently. I saw a headline about this, but.
- [54:12]
Benjamin Wittes
Yeah, well, that is critically important information and I will certainly not be betting on matters that lawfare covers, except in the. In the friendly sense that I will promise to Scott that I will consume from under the face of God this widowed hat if he turns out.
- [54:36]
Scott R. Anderson
I think I'm. I think I'm of still up in our bets at this point. I think it's three to two.
- [54:40]
Benjamin Wittes
I don't know.
- [54:41]
Scott R. Anderson
I'm beating the house odds at this point.
- [54:43]
Benjamin Wittes
So we have got to wrap up. But I'm going to ask each of you what the next step is in your respective case. Lauren, I assume the next step is a 9th Circuit appeal, right?
- [54:59]
Lauren Voss
Yeah. Yeah.
- [55:00]
Benjamin Wittes
On. On the Breyer opinion.
- [55:02]
Lauren Voss
That's what I. That's what I'd expect.
- [55:04]
Benjamin Wittes
And what time frame would we expect that to take place in given that there's only 300 troops left and this isn't in the emergency docket anymore. This follows a full bench trial.
- [55:19]
Lauren Voss
Yeah, I'm not sure. Scott, do you have a thought on what is an effective timeline?
- [55:23]
Scott R. Anderson
I believe it's 45 days to file. I know it's 45 days to petition for cert after an appellate judgment. I can't remember if it's the same to go from district for an appeals, but it'll be somewhere in that timeframe and maybe different court to court. I'm thinking of the DC circuit timeframe. 60 days. We're getting in the chat. Thank you.
- [55:39]
Anna Bauer
Yep.
- [55:40]
Lauren Voss
60. Okay.
- [55:41]
Benjamin Wittes
All right, Anna, Next in the saga Sukhtenan, is a briefing schedule that starts on Friday unless the government goes to the D.C. circuit first.
- [55:59]
Anna Bauer
Right, Right. That's that's correct. We are still waiting for more information and potentially there could be a hearing week. But a lot depends on what Judge Kel, how Judge Kelly wants to run the case now that he has it. So we'll see.
- [56:21]
Benjamin Wittes
And Scott, I assume in this we have a cert petition that takes place at whatever leisurely pace the solicitor General's office wants to seek cert, is that right?
- [56:36]
Scott R. Anderson
Presumably. But we're likely to have an intervening event, potentially two intervening events. One, there is a parallel case on also challenging the tariffs going through the D.C. district Courts on a different jurisdictional theory, actually a mutually exclusive jurisdictional theory, I.e. the learning resources case. That case is now fully briefed before a D.C. circuit panel. Judge Walker, Judge Katz, Judge Rao, if you are tracking those are three Trump appointees, three of the four Trump appointees on the D.C. circuit. So that will be another opinion is fully briefed as of late August. I don't know if they if and when the hearing is scheduled in that if it hasn't already happened, the but we may well see a decision in that come out sooner, which will be a big weather vane about how certain judges on Supreme Court are falling because those are three judges that have a lot aligned with certain factions of the conservative wing of the Supreme Court at this point. We also this case did get remanded dack down to the district Court on a somewhat technical issue. The district court did adopt a universal injunction to resolve this initially. I'm sure the district Court, the Court of International Trade, adopted a universal injunction that was before CASA v. Trump, the Supreme Court decision that cast cold water in the birthright citizenship contest context on the appropriateness of universal injunctions. So they basically remanded it back to the Court of International Judges Trade to say, hey, look at Cassavy Trump and think about whether universal injunction is actually the right remedy in this case. There's reason to think it still is for a variety of reasons, and the court acknowledges it. There very well may be the outright outcome. But they sent that back to the District Court. So we may see the district court actually come up with a new remedy, a new set of orders, a new permanent injunction arising out of it, summary judgment determination that the court more less upheld. And that could easily come before a petition for cert, even if we see one coming out of it. If the government petitions for cert, the Supreme Court will take it up. Yes, because it is a national security foreign relations case. And when they ask for certain those cases, it is I think only one case in the last 100 years hasn't been taken up in that on those grounds. So in that context, the Supreme Court's going to take it up.
- [58:28]
Benjamin Wittes
And also it's a challenge to a major policy initiative of the administration and.
- [58:34]
Scott R. Anderson
It'S a clear jurisdictional circuit citizen split with the D.C. circuit. Right.
- [58:37]
Benjamin Wittes
The court never, never rejects cert under those circumstances, nor should it. Yeah, we are going to leave it there, folks. Lauren Voss, Scott R. Anderson, Anna Bauer thank you all for joining us today.
- [58:55]
Jen Patya
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- [59:24]
Benjamin Wittes
And look out for our other podcast.
- [59:26]
Jen Patya
Offer offerings including Rational Security, Allies and Escalation. Our latest Lawfare Presents podcast series on the war in Ukraine. Check out our written work@lawfaremedia.org the podcast is edited by Jen Patya and your audio engineer.
- [59:45]
Benjamin Wittes
This episode was Me.
- [59:47]
Jen Patya
I Did It Myself. Our theme song is from Alibi Music. As always, thank you for listening.
- [60:04]
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