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UNBIASED Politics
New Executive Orders: Prosecuting Burning of the American Flag & Ending Cashless Bail. PLUS National Guard Troops to 19 More States and Abrego Garcia's Possible Deportation.
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Welcome back to Unbiased, your favorite source of unbiased news and legal analysis. Welcome back to Unbiased Politics. Today is Monday, August 25th. Let's talk about some news. Quick episode today, just a few stories. According to a new report from Fox News, as many as 1700 National Guard troops will be deployed to 19 states in the coming weeks to assist with immigration enforcement. This news follows an earlier July 25 memo from the Department of Defense, which updated the duty status of approximately 1700 troops from Title 10 to Title 32. And we'll talk about what what that status change means in in just a few minutes. According to a defense official who spoke to News Nation, the 19 states include Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Louisiana, Missouri, Nebraska, Nevada, Ohio, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia and Wyoming. Per the July memo, the DHS requested assistance from National Guard troops to help with things like case management, transportation, logistical support, and clerical support for processing individuals at ICE detention facilities. In some related news, and I'm kind of lumping these two together because, well, you'll find out why in a minute. But in some related news, President Trump, in speaking with reporters this past Friday, said Chicago will likely be the next city that his administration targets for a federal crackdown on crime. Specifically, he said, quote, I think Chicago will be next and then will help with New York, end quote. So overall, there's this broad discussion happening about the National Guard and what the federal government is allowed to do and not allowed to do when it comes to deploying National Guard troops to other states and cities. What's important to understand is that the legality of sending National Guard troops to other states depends on the legal authority under which the troops are deployed. So what I want to talk about here is first the the different legal authorities for deploying National Guard troops, but then also what the differences are in sending troops in for immigration enforcement versus cracking down on crime. So National Guard deployments are defined in two sections of federal law, Title 10 and Title 32 of the US Code. There are a couple of crucial differences between these two sections of federal law. Under Title 10 status, troops are paid by the federal government, commanded by the President, and serve federal missions. They're essentially reporting for federal active duty under the President's command. But a President cannot just send in National Guard troops under Title 10 whenever he wants. It's only permissible when one the United States or the particular state that the troops are being deployed to is invaded or is in danger of invasion by a foreign nation two, there's a rebellion or danger of a rebellion against the government, or three, the President is unable with the regular forces, military forces, or police forces to execute the laws of the United States. Those are the only three situations in which Title 10 deployment is permissible. Under Title 10 status, the President does not need the state governor's permission for deployment. However, all troops with Title 10 status are subject to the Posse Comitatus act of 1878, which prohibits federal troops from acting as a police force. Troops with Title 10 status cannot make arrests or detain individuals. They can only assist local and state law enforcement. And we saw National Guard troops be deployed to LA when the ice, the ICE immigration enforcement actions were happening to assist local law enforcement with, you know, containing the protests and riots and. But they couldn't actually make arrests or detain individuals. Under Title 32 status, troops are still paid by the federal government, but they're commanded by the Governor of the state to which they are deployed. And they serve the interests of that state because they're commanded by the state governor. The governor must either request assistance or give permission for the deployment to occur. Troops with Title 32 status also differ from troops of Title 10 status in that they can make arrests and detain individuals, but only if the governor and state law allow it. So those are the legal differences. Per the DOD's July memo, which authorized about 1700 troops specifically for immigration enforcement, the troops will transition from Title 10 status to Title 32 status. Remember that, that under Title 32, the troops are commanded by the state governors and can make arrests and detain individuals so long as state law allows for it and the Governor allows for it. All 19 states listed in the DoD memo have Republican governors. Republican governors are obviously much more willing to work with the administration and give permission for deployment, which is required under Title 2. Not one democratic led state is listed in the immigration enforcement memo. So that's why in this situation, the there's really no issue with deploying National Guard troops for immigration enforcement purposes to various states. Now, if a state governor were to object and the federal government sent them in anyway, that's when you would have an issue. We saw that happen in California when the administration sent in the National Guard to assist law enforcement in LA during the ICE protests and riots. Governor Newsom objected to the administration sending in the troops under Title 10. The the administration did so anyway and the state of California sued. So that brings us to the next part of this story, which is the administration saying Chicago is next for National Guard deployment. Notably, as of now, there haven't been any reports of concrete steps being taken to actually deploy troops to Chicago. This is just something Trump said on Friday when he was answering questions about the national guard deployment in D.C. since his remarks on Friday, though, the mayor of Chicago has responded, saying that Chicago does not need a quote, unquote military occupation and that such action by the federal government government would be uncalled for. Illinois's governor has said that he has not received any requests for National Guard deployment in Chicago as of now and called the move a manufactured crisis and authoritarian power grab. So here are a couple of situations where deployment to Chicago for purposes of cracking down on crime would be lawful and a few situations where it would be un unlawful. If Illinois's governor requests National Guard troops or approves the deployment of National Guard troops, it would be okay. If Illinois's governor does not request troops and or objects to the deployment of troops, troops could not be deployed to Chicago under Title 32, meaning troops could not be deployed to Chicago to actually make arrests or detain criminals. Now, if, if the President wanted to deploy troops to Chicago under Title 10 to simply assist law enforcement in Chicago with cracking down on crime, the only way that he could lawfully do that is if again, one the the United States or Illinois is invaded or is in danger of invasion by a foreign nation, two, there's a rebellion or danger of rebellion against the government or three the President is unable with the regular forces to execute the laws of the United States. If the administration were to deploy National Guard troops without the governor's request or approval and instead argue lawful authority under Title 10, we likely see a legal challenge like the one we're seeing in California. Now, the other option the President has outside of Title 10 and Title 32 is to invoke the Insurrection Act. But that's a whole other conversation. So that's what you need to know about National Guard troops and whether the federal government can actually send them into these other cities and states. Let's switch gears a little bit and talk about what's going on with Kilmar Abrego Garcia, a name we were talking about a lot for a while, but we haven't talked about in a minute. Abrego Garcia is in the news again because he was recently released from custody per a judge's order. But he has since been detained again, and the administration is now saying he's being processed for deportation, possibly to Uganda. So let's talk about this to catch everyone up to speed. Kilmar Abrego Garcia is the man who was mistakenly deported to El Salvador back in March. He was initially arrested by ice and he was soon after deported to El Salvador over his alleged ties to the MS.13 gang. However, as we've talked about, his deportation violated a 2019 withholding of removal order that prevented him from being sent to El Salvador specifically. As a result, a federal court ordered the administration to facilitate and effectuate his return to the United States. After some back and forth over how that ruling should be carried out and the Supreme Court eventually weighing in on it, Abrego Garcia was ultimately returned to the States in June. However, behind the scenes, the federal government was working to secure an indictment against Abrego Garcia for charges related to human smuggling because the administration knew that if they could get an indictment, Abrego Garcia could be arrested again once he returned to the States and then ultimately deported again. So that's what happened. Abrego Garcia was indicted on two criminal charges, conspiracy to transport aliens and and unlawful transportation of undocumented aliens. He was returned to the States to face his new indictment. He pled not guilty to the charges, and he was just released from custody on Friday pending trial. Notably, the government did try to offer Abrego Garcia a plea deal earlier this week. He would have pled guilty to the two federal charges and would have been deported to Costa Rica after serving any court imposed sentence. But he turned that down. So upon his release on Friday, he was placed under electronic monitoring and stayed with his brother in Maryland. However, shortly thereafter, he was notified that he may be deported to Uganda. The notice to Abrego Garcia's attorney reads in part, quote, let this email serve as notice that DHS may remove your client, Kilmar Armando Abrego Garcia, to Uganda no earlier than 72 hours from now. Absent weekends, end quote. In a subsequent email, Abrego Garcia was instructed to report to the ICE's enforcement and removal Operation Operations Office in Baltimore on Monday today for a check in. So this morning, Abrego Garcia reports to the ICE office in Baltimore and he's taken into custody. His lawyer then went ahead and filed a lawsuit almost immediately asking a federal judge to order his release and slow down his removal process so that he can have a chance to challenge his potentially imminent deportation to Uganda on the basis that he has a reasonable fear of facing torture or persecution in Uganda. It'll be up to the judge to decide what to do here, but I will say this, Armando Garcia cannot be sent back to El Salvador, but he can be deported to a third country like Uganda as long as he's provided adequate warning of his potential removal. The same judge that will be overseeing Abrego Garcia's latest lawsuit, the lawsuit that was filed this morning, issued a ruling last month that said officials must give Abrego Garcia and his lawyers a heads up of removal plans at least 72 business hours before they intend to carry out a deportation to a third country. That doesn't mean that he will definitively be deported so long as he's given 72 hours notice. The judge will have to take a look at the facts of the case and decide whether his deportation is permissible. She scheduled an initial court proceeding for 2:00pm Eastern Time today, so we should know more. You know, once that happens, I won't have a chance to cover it by the time this episode is out, but we should know more by the end of the day on Monday. Let's take a quick break here. When we come back, we'll talk about three new executive orders and more. You've probably seen a million ads for hair growth products and doubted them because honestly, I did the same thing until I decided to take a chance on Nutrafol because I had been seeing so much about it on social media. I first started noticing hair shedding in May 2023. It was the first time it had ever happened. Thankfully it only lasted a couple of months, but it was still scary because my hair has always been almost like my security blanket. But fast forward to a year later and it happened again. 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Welcome back. The President signed three executive orders today, so let's talk about them, starting with the order titled Prosecuting Burning of the American Flag. Remember, Executive Orders are directives for the federal government. Typically, each Executive order will have a purpose and then various directives to carry out that purpose. In this case, the core purpose is to restore respect and sanctity to the American flag, describing any desecration to be offensive, provocative, and a statement of contempt, hostility and violence against the nation. To carry out that stated purpose, the order directs the Attorney General to prosecute those who incite violence or otherwise violate existing laws while burning the flag. That language is important and I'll elaborate as to why in a minute but the order also says the Attorney General is to prioritize enforcement to the fullest extent possible under the law and, and to the maximum extent permitted by the Constitution, and may pursue litigation to clarify the scope of the First Amendment exceptions. The Secretary of State, the Attorney General, and the Secretary of Homeland Security are to deny, prohibit, terminate or revoke visas, residence permits, naturalization proceedings, and other immigration benefits, or seek removal from the United States whenever there has been a determination and that foreign nationals have burned the American flag. Now, of course, we have to talk about a Supreme Court case called Texas vs. Johnson. In Johnson, the Supreme Court ruled 5 to 4 that flag burning is protected speech under the First Amendment. It established that symbolic acts of protests are a form of expressive conduct protected by law even when they are offensive to some people. The Court said, quote, if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds it offensive or disagreeable, end quote. In the aftermath of Johnson, Congress went ahead and passed a law banning flag desecration. But that law was struck down by the Supreme Court. In a case called Eichmann, the Court reaffirmed that flag burning is protected speech that cannot be banned by the federal government. Now, the President takes the position in his Executive Order that burning an American flag incites violence and is an action that amounts to fighting words. Now, the that language ties back to First Amendment exceptions, right? So the order cites to Texas versus Johnson and says, quote, notwithstanding the Supreme Court's ruling on First Amendment protections, the Court has never held that American flag desecration conducted in a manner that is likely to incite imminent lawless action, or that is an action amounting to fighting words, is constitutionally protected. So just to quickly explain what those terms mean, fighting words comes from a Supreme Court case back in the 40s, and it refers to direct, face to face insults that are so personal and inflammatory that they're likely to cause an immediate fight. It's a really narrow exception to the First Amendment and courts almost never uphold it. Today, incitement refers to speech that is intended and likely to cause people to commit lawless action right away. Like, you know, an example would be urging a crowd to riot on the spot. Most offensive or provocative protests, including flag burning, don't usually meet these standards because the exceptions are drawn so narrowly. Now, that's why the Executive Order takes a second approach. Instead of relying solely on those rarely used exceptions, it directs the DOJ to prosecute flag desecration when it also violates existing content neutral laws, things like arson, disorderly conduct, vandalism. So if the government prosecutes flag burning under neutral laws, meaning laws that are not aimed at suppressing a certain type of message, like a general ban on open fires, destruction of someone else's property, etc. Etc. That's permissible. In fact, Johnson itself the Supreme Court case Johnson acknowledged that neutral laws are valid as long as they aren't a disguised content based restriction. So if someone burns an American flag while also committing arson, they can be charged with arson. But if the DOJ were to prosecute someone only for burning a flag without any other violation, that that would directly conflict with Johnson. Another thing worth mentioning here is that the Executive Order is essentially challenging Johnson head on, right? By allowing the DOJ to pursue litigation to, quote, unquote, reexamine First Amendment boundaries, it's essentially asking the DOJ to try to narrow the precedent or get the Supreme Court to overturn their prior ruling in Johnson. So long story short, under current law, the DOJ cannot prosecute someone solely for burning a flag as political protest. This Executive Order does not overturn existing precedent. Instead, this order is attempting to test the boundaries and set up future court cases that could potentially chip away at or even potentially overturn that existing precedent. Okay, the second Executive Order we are going to talk about today is titled Taking Steps to End Cash Bail to Protect Americans. The stated purpose of this order is to keep Americans safe by keeping individuals incarcerated who pose a clear, ongoing risk to society. Consistent with that purpose, the order directs the Attorney General to submit to the president within 30 days a list of states and local jurisdictions that have, in the Attorney General's opinion, substantially eliminated cash bail as a potential condition of pretrial release or from custody for crimes that pose a clear threat to public safety or order. These crimes include offenses involving violent, sexual, or indecent acts, or burglary, looting, or vandalism. Then, the head of each executive department and agency, in coordination with the Director of the Office of Management and Budget, is to identify federal funds currently given to cashless bail jurisdictions that can possibly be suspended or terminated as appropriate and consistent with applicable law. So, a few things to talk about here. First, bail laws are typically state matters. Each state NDC sets its own pretrial detention and bail rules. Because of that, this order doesn't and cannot directly change those laws. Instead, what this order does is it threatens to cut federal funding from jurisdictions that maintain these cashless bail policies. Here's the catch though. So only Congress controls federal spending. Presidents can direct how Agencies administer the funds that Congress has already appropriated. But the executive branch cannot unilaterally withhold or cancel appropriated funds unless Congress gave them that authority. With that said, we have seen courts, especially lately with some of the administration's other funding fights, show more willingness to uphold cuts, especially when the cuts are tied to public safety or law enforcement programs. So if this executive order is challenged as an overstep on, you know, congressional authority, as a coercive condition on funding which is not allowed, or something else, it's hard to say how a court would rule. What's also interesting is that cashless bail exists largely because of lawsuits and court rulings. And that said, money bail can violate equal protection and due process if it keeps poor defendants jailed while wealthy defendants go free. So this executive order really puts cashless bail at the intersection of two big debates, whether the federal government can pressure states through federal funding and whether money bail itself is constitutional in the first place. Now, alongside this, this nationwide order, the President also signed a separate D.C. specific executive order. That one takes things a bit further. Instead of relying on funding threats, it directs federal agencies to hold arrestees in federal custody and pursue federal charges whenever possible, essentially bypassing DC's cashless bail system altogether. And it also instructs the attorney general to review D.C. police policies and press the mayor to make changes under the city's Home Rule act. And if D.C. doesn't comply, the order says that the administration can leverage federal services and funding to push for reforms. Legally, though, this order raises a different set of questions. Unlike the states, Congress retains ultimate authority over D.C. under the Home Rule act of 1973. That means the federal government does have the power to step in on local matters in ways that it couldn't in the states. So the administration stepping in in this way isn't unlawful, but it's certainly controversial. Supporters argue the order is fully within the federal government's rights since Congress gave itself final say over D.C. policy, you know, in that Home Rule Act. But critics argue the order expands executive authority by sidestepping the usual balance that Congress intended when it granted DC partial self governance under home rule. So we'll have to see how those two orders play out. They could potentially be challenged. Time will tell. Now for a few quick hitters. Fires are currently burning in California and Oregon. The Picket fire in Napa County, California, started on Thursday. It's burned nearly 7,000 acres and it is still growing. According to Cal Fire, the fire is only 13% contained. Governor Newsom said the state has deployed more than 1200 firefighters, 140 engines, 34 bulldozers and aerial resources. Meanwhile, in central Oregon, the Flat fire has burned about 22,000 acres with zero containment. And for the third time this week, American fighter jets were sent to respond to a Russian aircraft near Alaska. On Sunday, NORAD said it tracked a type of Russian aircraft used for surveillance and in the Alaskan Air Defense Identification Zone, which is actually over international waters, not US Territory. Although NORAD said the Russian activity was not seen as a threat, it did dispatch two F16 fighter jets, two KC135 tankers and an E3 Sentry aircraft to keep an eye on it. And President Trump said today he wants to rename the Department of Defense the Department of War from the Oval Office. Trump said in part, quote, it used to be called the Department of War. It had a stronger sound. And Secretary of Defense Hegseth replied, it's coming soon, sir. So a little history for you. Under President Washington, Congress created the U.S. war Department to oversee the Army, Navy and marine Corps. In 1949, the National Security act renamed the department the Department of Defense. Time for some critical thinking. Let's revisit the flag order. We'll start with a general question. In your opinion, should the First Amendment continue to protect burning the American flag as a type of symbolic expression, or should the government have more authority to restrict it in the interest of national unity and respect for the flag? And why? Why do you feel the way that you do? Why is your answer what it is for supporters of this executive order? If the government is allowed to punish flag flag burning because it's offensive, where should the line be drawn on other offensive political speech? Could this open the door to restricting other forms of protest? So imagine the situation in which you spoke out, you know, in protest against an administration you didn't like but were not allowed to do that. How would you feel about it then for opponents of the order? Is there a middle ground where the government could regulate the time, place or manner of flag burning, for example, by applying general fire safety rules or restricting protests in certain high security areas without directly targeting the message that's being expressed? That's what I have for you today. Thank you so much for being here. I do have a new newsletter going out tomorrow per usual, every Tuesday and Friday covers quick hitters in politics, pop culture, business, health and international news. You can always subscribe by clicking the sign up link in the episode Show Notes. Have a fantastic next couple of days and I will talk to you again on Thursday.
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