Constitution Breakdown #1: Nikole Hannah-Jones

29:54If that case is appealed, which it probably will be, then you're going to go up to a Supreme Court that, to me, is ruling in line with the vast history of the court. And this is the other thing. I think people tend to think about the Supreme Court as the Warren Court. That's kind of how we encapsulate what the Supreme Court has been in America. And I'm like, no, that's the vast majority of the time in the history of the United States. Of course, the court has ruled against protecting minority rights and it's been rare that it has expanded rights for for marginalized people. And so that's my fear is, yes, I think I think the lower courts have been doing a really great job of kind of holding the line on our constitutional rights.

30:46But if I were to think of how we are going to write the history of this period 20 or 30 years from now, this is going to have to be considered one of the worst courts, most regressive courts in the history of the United States. I don't see how we can see it any other way, in my lay person's opinion. Yeah. I mean, so we've talked about the inadequacies of the Constitution as a backstop to rights as a legal document. But as a symbolic or at least, you know, I don't know, the best parts of symbolic documents, I suppose, in different moments. It reminds me a little bit of this, what you wrote about, about your father flying the U.S.

31:31flag and how this was a thing that embarrassed you as a teenager. And then you began to embrace the idea of it as an adult. Does that sort of analogy hold true for the Constitution or anything like that for you? Interesting question. So one, I don't have to tell either of you this, but definitely not you, Elizabeth. Like most people don't have any idea what the Constitution says. Exactly. Right. I mean, the we the people is literally probably the only thing they can cite and something about the Second Amendment and maybe a little bit about the First Amendment. Some people might know the 13th. Some things about, you know, the right not to incriminate.

32:17But most people don't know anything about the Constitution. And it really is, you know, not the most interesting read. That's what we're trying to do. We're trying to make it a little bit better for people to have, you know, like have friends along the way with them. But yeah, I'm a teacher. I know that struggle. I mean, I was like a nerdy. I just was super nerdy. I had like a copy of the declaration and the constitutional mouth ball in my bedroom when I was a kid. It's amazing now. It made for a hard childhood to be an actress. I'm impressed. But, you know, I think I have a nuanced view of the Constitution.

32:58Again, like just just taking the rhetorical value of we the people and that it does allow all of us to see ourselves as part of the people and that there is something very powerful about constituting a nation on an idea that's not based on land or bloodline or all of those things. It's very powerful. And that. is literally the only thing most people know about the Constitution, right? They know it's supposed to protect your rights. They couldn't tell you exactly what those rights were. But that we do have rights that we are born into, I think is very powerful. I, of course, can see all the many flaws, all the many exclusions, and of course, the way that because it is a document that must be interpreted and almost always interpreted by the most elite people in our society.

33:58They are the ones who are charged with interpreting it. I can see all of the challenges and the failures, but could I write a constitution that would hold up to centuries? It's an impossible task that these men somehow kind of managed to do. So I'm of two minds on it, like most things, you know, even with, I understand why my dad flew the flag. I'll never fly it. Right. So I can understand where his patriotism came from, but also say that is not for me, that I, I personally will not feel that way about the United States. Um, but I get it. And I think I feel that way about the constitution. I think there are amazing, you know, I'm, I'm, I'm, I'm a journalist.

34:44The first amendment to the constitution protects the right to free expression. And I am part of the only profession that is protected by name in the constitution. And I think that's very powerful. And yet my book and my work is being banned from the classroom, from libraries. So we have this great idea that can be interpreted to mean whatever people in power want to interpret it as. And I think the thing that has been most astounding to me, and I'm actually curious to hear how you all are experiencing this, is that everything that we kind of thought was codified about governance is not enforceable.

35:30So if you have someone who just decides they don't really care what the Constitution says, you have a Congress that says the Constitution lays out what we oversee, what our roles are, But if you have a Congress that just says, we don't care what that says. If you have a court that says, actually, we can have a king, then what is the Constitution? And I think most regular people like myself somehow believe that this document did have some enforcement mechanism, right? Like the fire alarm lever that we could pull if things started going off the rails. And you're realizing it really was just based on agreement that we had the shared value and belief.

36:16And all you needed was someone who didn't care about that. And for that person to be backed up by the other branches of government and you see it was a facade in a way. But I'm actually curious if this is, has this been surprising to either of you or did this, you always knew this vulnerable? I mean, I feel naive, but I didn't realize the extent of the vulnerability, I guess. And I'm curious what you think. That was the central tenet of our show and our discussions in the very beginning was like, I'm like, but doesn't it say we can't do this? And Elizabeth is basically saying, well, these are mostly norms and not rules, you know?

36:55And I don't know. So, Elizabeth, could you expand on this? How surprising was this to you in this time period, even as somebody who studies it and knows the nuances of it? Sure. It's not terribly – something can be not surprising and yet absolutely terrifying at the same time, right? I mean, of course, the whole constitutional system that we're in is essentially an honor code. It's an honor code where we all agree that there are a certain set of rules and we are going to abide by them, not because somebody is going to do something to punish us. I'm talking about the highest actors in government, but because we all agree that this is the system we're in.

37:31Now that we have an administration that doesn't agree with the honor code, you know, the basic premise of a lot of legal principles for government actors is like good faith or, you know, doing what's in the best interest of the government, whether it's domestic policy or foreign policy. When you don't have that underlying system in place, then it kind of feels like anything goes. And that is truly, truly terrifying. So, no, I'm not surprised necessarily because we've been watching this very slow erosion over several years. And this year, and I think you've pointed this out in your writing, everything seems to have eroded at a much faster rate.

38:14We've sort of gone at hyperspeed. And that's the thing that's most alarming. Yeah. I mean, this whole idea of a blitzkrieg of kind of executive orders is sort of a devious sort of political genius. Like it's sort of like caught all of us off guard because we're like, what is this real or not or what? You know, like and the court is slow. Executive orders are very fast. I mean, we've talked about this as the idea of stress testing the Constitution that sort of the Trump administration was in the first one. And I don't think we had no idea or I had no idea how bad it could get. I actually didn't think there was going to be a second Trump administration.

38:55So I didn't think about it too hard until pretty recently. But like, yeah, it's just one of those things that you realize the holes in all this, that you see something like as plain as the 14th Amendment and realize that it could be questioned now is like so shocking to me. Yeah. Well, yeah. And for me, it's just thinking again, like, and this is where I feel very naive because I'm like, I know what this country is capable of. Right, exactly. And yet I couldn't have imagined that all the systems, the checks and balances would be collapsed. You know, it's like there would be something that, you know, if it's not Congress, then it's the courts or the Supreme Court.

39:40Like I said, I think I think the lower courts, they're not doing every ruling the way I think they should. But they're they're substantially to me trying to uphold the Constitution, but they're ruling. But I yeah, just that idea that you would have this kind of once in a I used to say once in a century, but I'm like once in a history of a country alignment and politician. You just yeah, you realize it was it was just all held together with a with a promise, a handshake, like spit in the palm handshake. And that's very frightening, especially when you are a member of minority group or groups. to understand how fragile this has been.

40:25And again, I'm not shocked. Like I studied this for a living. I just was in Mississippi with, you know, people who were arrested a hundred times fighting for democracy in the South. So I know what this country is capable of. I didn't think the America that Black people have lived in most of our lives would be the America that everybody's going to live in now. Right. Which, you know, is a little shocking. Yeah. And I think, yeah, I think one of the things that's hard, I think, for most people to wrap their minds around is that what's happening now, this collapse, right, of our norms and our expectations of good faith in government is like, it's not like, oh, there'll be the next administration and we'll figure it out.

41:06this is a, you know, a generational, multi-generational effect change that's going to happen. And, you know, sometimes, and I hate to sound really cynical about this, is like, I wonder whether in my lifetime, a lot of this will be on, any of this will be completely undone. I don't know how you feel about it. The same. I think that it's that American optimism and wishful thinking that leads people to think we just have to get to the next election. I don't think you can see this type of destruction of norms and think that it just goes back. The genie would not be put back in the bottle anytime soon.

41:48And I fear there's going to be a lot of destruction before we start to see a real turnaround. I mean, we haven't hit bottom, not even close. Don't say that. No, no, I agree. But like, is there something about the norms eroding towards getting more things than I believe in? You know what I mean? Like, can I like not use norms to make things better? You know what I mean? Like, what if the next president has, you know, executive orders that blitzkrieg and change all this, pack the court? Like, now that the seal is broken on norm breaking, do you see a world in which norm breaking for good happens?

42:30I mean, it's possible, right? I mean, the Warren court was norm breaking for good, I would say. But, you know, those have been blips. I'm not a political reporter or a pundit, but I have yet to see anything from the mainstream Democratic Party that would have you believe that there is going to be some huge counter force. I think you can look at New York City and see the possibility, right, with our mayoral primary. But then you also see how much non-Republican power is coming against that, but how much Democratic power is coming against that change. Which I'm like, you know, I don't even know what's so radical.

43:18The man is universal health care, universal child care, free buses. Sounds great. But I think that's the thing that when I'm interviewing and talking to people who are the base of the Democratic Party is just the belief that the party that's supposed to be representing their interest is not willed power for good in the way that the other party is wielding power for what they're doing. So, yeah, it's possible. I mean, I talked to before the election, I talked to a lot of Trump voters, surprising Trump voters. I don't interview like, you know, I'm not the person who's covering the Trump rally or like the people, you know, are Trump voters.

43:58I talk to people who like you would be surprised at Trump voters. And there was a significant number of them who said I'm voting for him because he's going to blow everything up. I don't I don't like them. I don't agree with any of his policies. But things are so bad. And the Democratic Party is in such stasis. They're all taking money from the same people. And they're like, I just want someone who will blow it all up so we can like start something new. Now me, I'm like, okay, but you can blow it all up and don't get that thing you want. But also there's so much suffering that people are going to have to bear while you're blowing it up hoping.

44:32But people, you know, people feel that our political system in general is broken. So I think there is always a potential that out of destruction, you can build a new and better world. But I think history tells us the odds are not in our favor. That's right. I think that's right. Well, Nicole, Hannah-Jones, thank you so much for being on the show and talking about the Constitution with us. We really appreciate it and appreciate your time. No, thank you. I so seldom get to have conversations out of my normal zone. This was really fun. So thank you. And I look forward to listening to the podcast series.

45:10Thank you. So when it comes to the preamble, there's a lot going on with it. And we mostly, with Nicole, talked about the we the people part of this, which makes a ton of sense because it is kind of the biggest rhetorical flourish. And one of those things that Governor Morris actually like changed, it was going to be like we the states of the colonies, you know, and change to we the people. But there's so much more in here, establishing justice, ensuring domestic tranquility, providory common defense, all those kind of standard stuff, you know, promote the general welfare, what a lot of things countries do.

45:41And then it's like, secure the blessings of liberty to ourselves and our posterity, where you're like going big, you know what I mean? So we can talk about all those things, but these things show up much later in the Constitution. I mean, there's a true preamble on that is supposed to like, it's kind of introducing you to these concepts, but they get explored more greatly, like in a lot of the amendments, for example. Right. We can think of the preamble as kind of gestures to different themes that we're definitely going to pick up. What does it mean to have providing for the common defense? Or liberty is maybe one of the most contested words in the Constitution.

46:14So, yes, it is vague, probably very deliberately so. And we are probably going to look at these, let's call them the preamble themes over and over again during the course of our discussions. Well, thank you for talking with me about the Constitution. And now we're going to talk about some constitutional crisis that is happening in the present day after the break.

46:48When we were developing the idea from the show, we knew we didn't want to lose the what Trump can teach us about con law aspect of talking about current events. So each month after our book club breakdown section with the guest, Elizabeth is going to use constitutional law to explain something happening in the news. So, Elizabeth, it is July 16th at 1.45 p.m. as we're recording this. What are we going to be talking about today? Well, in March of 1970, Gino Giacobelli gave an interview with the Associated Press about his job. And his life was not easy. Gino's take-home pay after 14 years as a U.S.

47:24postal clerk in Hackensack, New Jersey, was$109 a week. He had to support his wife, his adult daughter, and his two grandchildren. Now, according to the interview, Gino's ambitions weren't too grand, but he complained that most nights dinner was pork and beans or beans and bacon. And what he really wanted was what he called a halfway decent meal, maybe a hamburger or a steak. And Gino told the AP reporter that 27 of his fellow postal workers had applied for food stamps, and he was getting pretty close to it himself. Now, postal worker salaries were low because Congress had only raised their wages in small amounts.

48:07In the 1960s, it wasn't uncommon for postal workers to have multiple jobs. By the time of Gino's interview, many postal workers were just above the poverty line. Yet in early 1970, Congress proposed a bill that would give postal workers a 5.4 % raise less than the rate of inflation. This was the same Congress that had voted themselves a 41 % raise the year before. In New York City, postal workers in the largest branch of the National Letter Carriers Union demanded a strike, but their union leaders refused. One reason was it was actually illegal for postal workers to strike. But the members took a vote and they decided to strike anyway.

48:51A wildcat strike. And thus began on March 18th, that's right, 1970, the largest wildcat strike in American history. A postal workers' strike that began in New York and then spread to Chicago, Milwaukee, San Francisco, and other cities within days. Now, you have to remember this was 1970. There's no internet, no online life as we know it today. And so all of the ordinary things we all do online today, pay bills, get paid, receive benefits, transact business, completely happen through the mail, which in some cities had completely stopped. So the Nixon administration went to court and a judge ordered the workers to stop.

49:36But remember, it was illegal for them to strike. The postal workers ignored what the court said. And the stock market slid. One trader on Wall Street said, I don't see how we're going to operate without the mail. And so on March 23rd, 1970, President Nixon addressed the public on TV and announced a national emergency. He would be sending the military to New York City to deliver the mail. On TV, Nixon said, as president, I shall meet my constitutional responsibility to see that those services are maintained. That's right. President Nixon authorized the deployment of thousands of members of the Army, Air Force, Navy, Marine Corps, and the National Guard to implement what was called Operation Graphic Hand.

50:28And under Nixon's Executive Proclamation 3972, 26 ,000 troops were sent to New York City to sort mail and to deliver mail to businesses. But the problem was the soldiers were not very good at it. You don't say. In 1970, the Postal Service often relied on hand sorters who could handle more than a thousand letters an hour. But when the New York Times interviewed Specialist Arnold Gray in Brooklyn, here's what he said. You've heard of the Boston Massacre and the My Lai Massacre. Tomorrow you're going to see the New York Mail Massacre. I don't know a thing about the post office. I'm a medic. The forces of Operation Grafican did process 12.8 million pieces of mail very slowly.

51:17Luckily for Nixon, the strike didn't last very long. The wildcat postal strike of 1970 ended on March 25th, just eight days after it began, and postal union leaders promised to negotiate with the federal government. Ultimately, Congress did approve a pay raise for postal workers, and Nixon eventually signed the Postal Reorganization Act, which recognized their rights to collective bargaining. And it created the U.S. Postal Service that we know today. And I'd like to think that Gino Giacobelli was able to have a stake now and then as a result. Yeah, let's hope so. And as president, Nixon used his powers as commander-in-chief over the military.

51:56But in the wildcat postal strike of 1970, we weren't at war or in any foreign commitment. But there's a through line from the postal strike to President Trump's use of the military for his mass deportation program. So what is the connection between those two things? Well, let's begin with some core principles. In our legal system, we have this really deeply held belief that the military shouldn't be used in civilian law enforcement. In fact, it's one of a long list of complaints in the Declaration of Independence, right? One of the things we've complained about was that King George kept among us in times of peace standing armies without the consent of our legislatures.

52:35And it's that deep suspicion about standing armies in domestic affairs. That's one of the reasons our Constitution puts a civilian, the president, in control of the military. But on the other hand, the Constitution also imposes responsibilities on the federal government when it comes to the security of the states. So, for instance, the Guarantee Clause of the Constitution requires the federal government to provide states with protection from foreign invasion and from what the clause calls domestic violence. And Congress has the authority to call out the militia under the Constitution to enforce federal law.

53:13And so the major way we protect against having a standing army against civilians, but also having some power for emergencies, is the Posse Comitatus Act. And it's just one sentence. So, Roman, why don't you read it? Okay. I mean, it's a long sentence, but it's one sentence. So, whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force, well, that's a new addition, as the posi comitatus or otherwise to execute the laws, shall be fined under this title or imprisoned.

53:53not more than two years or both. So where does this come from? And when did we add Space Force to this list? Pretty recently, right? Yeah, that's right. So the term posse comitatus actually refers to the power in English common law. So we're going back a long time. The power of the sheriff to command local men in the community to help him enforce the law. So if you've ever seen like an old Western movie where the sheriff says, hey, everybody, we're going to get a posse together to catch the bad guy, that's the same idea. But with the Posse Comitatus Act, I'm actually thinking of our earlier conversation with Nicole Hannah-Jones because the act itself has a history that's intertwined with the Civil War and racism, actually.

54:37During Reconstruction, federal troops occupied the former Confederacy, and that included black soldiers who were part of those federal troops. And they were all there to ensure that the federal laws would be respected, especially when it came to protecting voting rights. And Southerners saw these troops as a humiliation. So I'm condensing a lot of Civil War history here, but in order to settle the hotly contested 1876 presidential election, which Rutherford Hayes barely won, Hayes ended up agreeing to remove federal troops from the South. Yeah, which pretty much effectively ended Reconstruction at that point.

55:13Exactly. It ends Reconstruction and the promise of securing rights for Black Americans in the South after the Civil War. But of course, if you read the Act, you'd never know that. So you have this Act with less than savory origins, but nevertheless, a federal law that does uphold an important principle in our legal system. And apart from some minor changes like the inclusion of the Space Force, it has remained mostly unchanged since it was originally passed. How exactly does it prevent the problem? Like, what is it laying out here? So the act expresses this general idea, this presumption that we should not have a standing army in the United States.

55:51But the problem is that the law permits exceptions. You can't have a posse comitatus unless expressly authorized by the Constitution or Act of Congress. Now, the authorized by the Constitution part doesn't mean much because there's actually nothing in the Constitution that specifically allows us to do this. On the other hand, Congress has passed laws that create exceptions to the Posse Comitatus Act. In other words, Congress may sometimes say, here are situations where the president can use the military in a civilian context. In this threat of imprisonment, who is going to be imprisoned in this act?

56:31That's a good question because we don't know. There haven't been any prosecutions like that. So that remains a kind of mystery. And what are some of these exceptions that would allow for a posse to be formed? Well, the primary exception to the Posse Comitatus Act is called the Insurrection Act. It's a name we give to a series of laws that were first passed in 1792. And the Insurrection Act allows the president to use federal troops, and that includes federalized National Guard troops, in three situations. The first is when a state asks for federal help to suppress what the law calls an insurrection.

57:09The second is when the president determines that you need the military to enforce the laws of the United States or to suppress rebellion. And the third is when the president uses the military in a state to address what the law calls any insurrection, domestic violence, unlawful combination or conspiracy that hinders the execution of federal law. So the important thing here for us is to note that the military here can include the National Guard. Now, the National Guard is normally under the authority of each state, but the president is allowed to federalize these troops in the right circumstances.

57:47So when the president does that, the National Guard essentially becomes no different than the rest of the military. So considering these three exceptions, like how many times has this been used and maybe which one is the most common one? I imagine the state asking for it is one of the most common ones. Yeah, that's right. The exceptions have been used quite a bit. Most often, presidents have used the Insurrection Act to send federal troops in times of civil unrest, and it's happened about 30 times. And so, for example, the first President Bush in 1992 invoked the Insurrection Act to send out federal troops during the Rodney King riots in L.A.

58:23So in that kind of situation, you can see that that happens with the request or at least the consent of the state's governor. The one notable time in American history when a president did not do that was in 1965 when LBJ sent troops to Alabama. But that was to protect civil rights activists who are marching from Selma to Montgomery. And the non-consenting governor was George Wallace, who was a pretty open segregationist and racist. So you can understand why he did that. And so the easiest way to make this the most smooth is for the governor to be on board with this because that automatically gets you into the territory of it being acceptable.

59:01Right. So you need the two things. I mean, like it's politically acceptable in terms of the governor going along with it. But then also those certain conditions have to be met under the Insurrection Act. So to sum up, under federal law, we have a 19th century statute from after Reconstruction that stops the president from calling out the military against civilians unless Congress has recognized an exception. And the major exception here to the Posse Comitatus Act is the Insurrection Act. Okay. So now let's turn to what's happening now, right? So you and I and everyone has seen the ratcheting up of immigration enforcement by ICE officers.

59:39So there have been these viral videos about masked ICE officers turning, looking for undocumented people at restaurants, home depots, farms, even schools, and sometimes even at court-ordered appearances, just sort of snatching people and taking them away. It's been terrible. Yeah, it's disgusting. So in some cities, people have been protesting these raids. And in early June, large protests began in downtown Los Angeles after several ICE raids had taken place. Now, there were definitely some clashes with the Los Angeles Police Department, but they were mostly peaceful. But on June 7th, President Trump issued an official memorandum that authorized the federalization of the National Guard and the deployment of active duty armed forces to what the memo said were locations where protests are occurring.

1:00:28The idea here is that armed forces would provide the muscle in making sure that ICE officers could make their arrests. And so Secretary of Defense Pete Hegseth called several thousand members of the California National Guard into federal service for 60 days. On June 8th, 300 California National Guard troops arrived in downtown L.A. and they were joined by many others later. And that included 700 active duty Marines who also went to L.A. as part of this proclamation. So is Trump relying on the Insurrection Act to make this legal? Well, everybody thought he might. But the surprising answer is no.

1:01:04He could have easily have done what presidents had done dozens of times. And that's the strange thing. Trump is not relying on this pretty well-recognized exception. Even if the Insurrection Act is controversial in some uses, it's definitely been used before. So instead, Trump is relying on a different statute. It's called 10 U.S.C. 12406. It's an act that allows a president. Yeah, very catchy. It's an act that allows a president to call up the National Guard in a case of what that law says is a rebellion or danger of a rebellion against the United States. or if the president is unable with the regular forces to execute federal law.

1:01:44But the weird thing about this law is that it's typically been used as almost kind of like a technical call-up for the National Guard. So presidents have typically used the Insurrection Act as kind of the legal reason why they're calling up the National Guard. And then they use this law in conjunction with the Insurrection Act as the technical, And now we're calling up the National Guard, kind of a way to shift control of the National Guard from the state's governor to the president. So is Trump the first person to do this type of maneuver? Well, apparently it has been used one time before during the 1970 Wildcat postal strike.

1:02:24Oh, here we go. In fact, that is the example we see cited by the state of California in their lawsuit against the Trump administration. a lawsuit that was filed in federal court just a day after the first federalized National Guard troops arrived in Los Angeles. The state argues that this statute, again, 10 U.S.C. 12406, has only been used by a president once, and for what the state calls highly unusual circumstances not presented here. And so from what we've just talked about, you can see there are enormous differences. You know, we were not thinking in the 1970s that the soldiers called up in that emergency proclamation were going to be used for anything but like the most beneficial, you know, innocuous purposes, which was deliver the mail.

1:03:13Right. Right. Right. Although it does seem like calling the wildcat strike of the postal workers a rebellion against the U.S. seems a little far reaching, too. Oh, well, so presumably that would have been not that basis. But remember, it's also if you're unable to execute federal law. And since like delivering the mail is an essential part of it's even in the Constitution, right, that we would establish post offices, that mail not being delivered at all was not being able to execute federal law. So is the state of California suing Trump because he's not invoking the Insurrection Act or what is the basis of the lawsuit?

1:03:46OK, so that's a good question. So California here is saying, look, what is Trump relying on? He's relying on this not typically used statute. And even if you look at that statute, the required bases are not here when it comes to ICE engaging in their immigration raids and people mostly peacefully protesting against them. So the state is not challenging the use of the law saying that Trump can never use this ever. They're saying it's just that the right conditions are not present here. But let's think about what the complaint is actually doing or what the federal lawsuit's about. California says, look, 12406, that's the federal statute, only allows the president to call up the National Guard when there's an invasion by a foreign country, when there's a rebellion, or when the president can't enforce federal law.

1:04:37Now, obviously, there's been no invasion by a foreign country, so we can toss that out immediately. And California argued, look, this isn't even a rebellion. Even if there were some people who were arrested during the protests, that doesn't transform a protest into a rebellion against the United States. And second, it's not even true that the Trump administration can't enforce the law because ICE officers did, in fact, still arrest and detain people nevertheless. Right. Yeah. OK. So the state of California initially asked the federal court for a TRO, a temporary restraining order, to have the Trump administration immediately stop what it was doing.

1:05:15In other words, stop calling up the National Guard. And on June 12th, the federal district judge agreed with California that this was, in fact, an illegal order and granted the temporary restraining order. The judge, that's Judge Charles Breyer, was especially worried that the Trump administration seemed to be targeting the mere act of protesting as some form of rebellion. He said, look, I'm really troubled by the implication inherent in the administration's argument that protest, which is a core civil liberty protected by the First Amendment, can justify a finding of rebellion. Remember, this is a trial court, right?

1:05:54It's just the lowest level in the system. The Trump administration immediately appealed that temporary restraining order and asked the appeals court for an emergency stay or a stop of the stop, right, to actually let them keep going. This is my least favorite part of our discussions. It's the stopping of the stopping of the stopping. It just spins my head every single time. I know, it's very lawyerly, but the idea is like they wanted to keep on going, right? Exactly. So at this stage, you know, it's not about revisiting the entire case. The appeals court just looked to see whether the administration was likely to succeed on their appeal only about the temporary injunction.

1:06:31In other words, they're not like saying, let's look at everything that California is arguing here. It's just a narrow question of should there be a temporary restraining order or not. And the appeals court sided with the Trump administration, primarily because they said, in this kind of situation, we have to defer to the president. They looked at cases going back to the 19th century, and the appeals court said, look, when it comes to this kind of statute, the role of the court is not to second guess every single thing the president does. Instead, we have to be extremely deferential to the president.

1:07:07In other words, give Trump the benefit of the doubt. So if Trump determined that ICE was unable to execute federal immigration law under the statute, then that was enough, said the appeals court. We're not in a position to say, that doesn't seem right. Or like, sure, you arrested people so that you didn't qualify. Yeah. Yeah. And I can understand the soundness of that logic in a general sense, because if it's an ongoing emergency, you have to defer to the person who's thinking of it as an emergency and has to actually change the state of play on the ground. That kind of makes sense. Yeah. I mean, in the abstract, for sure, it makes sense.

1:07:41In the abstract. That's right. No, totally. That's right. And so the court is trying to say, look, in our job, in looking at prior cases and similar types of situations, we have been deferential, so we have to do the same thing. So they put a stop on the stop and the Trump administration is allowed to do what it was doing before. So now that the stop has stopped and it can go forward under 10 U.S.C. 12406, what happens? What happened next? Well, California's lawsuit against the Trump administration actually does continue in the federal trial court, in the federal district court. The appeals court just dealt with that emergency.

1:08:20So the trial court judge could decide, for instance, to issue a non-emergency, longer-lasting pause on the use of federal troops. Judge Breyer said he might consider whether the use of troops violated the Posse Comitatus Act. That was one of the claims that California has made. And the appeals court did not address that issue at all in its emergency decision. So there is a possibility that the federal trial court judge could say, well, there's another reason I'm going to order a pause on what the Trump administration is doing in Los Angeles. And on July 15th, the Pentagon announced that it would reduce the number of National Guard troops by half those who are being posted in Los Angeles.

1:09:06So that reduces the military force down there, but there's still plenty, hundreds of troops that are still there in Los Angeles, presumably providing the muscle for ICE arrests and just basically standing around with firearms, with weapons and looking kind of scary and terrifying people. We'll be right back.

1:09:32so this particular case is happening in california but you know um the ice raids and stuff are happening everywhere is this something that does this apply all across the united states well i think no matter what happens in this specific lawsuit what's happening in los angeles actually has pretty far-reaching implications for the whole country because let's return to that memo that official proclamation that Trump made on June 7th. Now, the memo, if you take a closer look at it, there is no mention of Los Angeles. It simply talks about rebellions against the authority of the United States. And Trump's call up of the National Guard is for what his memo says is any location where protests are occurring or likely to occur based on current threat assessments.

1:10:26Wow. So under the logic of the memorandum, troops could be sent anywhere in the United States, not even where there are current protests, but where the Trump administration determines that protests are likely to be happening based on their own assessment. The other part of it is there is no mention of the fact that they will send troops if there is demonstrated violence or a demonstrated threat of violence. They simply seem to be targeting protesting. So the memo really seems to be a kind of implied threat against any city where aggressive ICE enforcement is openly protested or might be protested by the community.

1:11:09And the memo doesn't require that there have to be reports of violence. And so that's particularly disturbing. It really seems to be targeting plain old protesting. Wow. Wow. And then second, many people have seen these videos of these masked ICE officers, and sometimes in uniform, sometimes in plain clothes, seemingly rounding up everybody they see in a parking lot or a workplace based on their appearance or an accent they might have. Now they have the military behind them if the Trump administration decides that that's what they want to do. These are authoritarian tactics sending the signal that no dissent will be tolerated, that any kind of dissent or protest is essentially a rebellion in the eyes of the administration.

1:11:51And so if Judge Breyer were to say that this is somehow in violation of the Posse Comitatus Act, would that apply all around the country as well? No, not necessarily, right? So it would just apply to what's happening there. But, you know, if there were another decision by the Trump administration to send another set of troops, another federalized National Guard, another state, presumably that would be another kind of fact-intensive inquiry of what's happening there, what kind of protest occurred there, and what determination has the Trump administration made. And kind of based on what the Ninth Circuit has done, the appeals court, if we're giving a pretty deferential look at what the president does, it seems like Trump has a pretty free hand to send troops if he wants to, which is kind of disturbing.

1:12:41And I think that leads to the other problem. You know, if you think about the Posse Comitatus Act and the exceptions, it's kind of a balancing, right, of, well, we don't want to have a standing army against civilians because soldiers have one kind of training. They're trained to defeat an enemy, right? They're not trained to respect civil liberties or to protect people, first and foremost. They're primarily there to defeat an enemy. That's the scary part of having a military, and that's why we don't want them in domestic law enforcement. You balance that with having protection when there's an emergency within the United States.

1:13:17So this is not an emergency. This is not even like the Postal Service shutting down and potentially wrecking the economy in 1970. This is a completely manufactured political emergency by the Trump administration. I think the big problem, the biggest problem that we see in the memo is that if this counts as an emergency, what we see in Los Angeles, then anything can be an emergency. Then Trump can declare any part of the United States a place where he has to send troops. And it's about to get much worse. Much worse? How? This seems pretty awful already. So much worse how? Well, it's about to get worse because, you know, a lot of attention has been paid to Trump's, I hate their name for it, the so-called Big Beautiful Bill that became law on July 4th.

1:14:08And most of the attention has been paid to the massive tax breaks for the wealthy and the big cuts to the social safety net, like cuts to Medicaid and food stamps. But it also includes, the bill also includes more than$75 billion in new funds to ICE, just ICE alone, over the next four years. That includes$45 billion for immigration detention. That's a quadrupling of their current budget. And more than$30 billion to expand the number of ICE officers and to fund their enforcement activities. So there's a few problems with this. First, there's very little oversight in the bill over the use of how these funds are going to be distributed, whether there's going to be any oversight for waste or fraud.

1:14:58But as a result, ICE becomes essentially the largest law enforcement agency in the country. So you have not only the motivation here to send ICE officers everywhere with the support of the military when necessary in the eyes of the Trump administration. It's really that what we've seen in L.A. could become much more commonplace with ICE officers out in communities. and you have this massive deportation machine that once this funding is here and you have the building of even more detention facilities and the hiring of thousands of more ICE officers, that's a structure that can't easily be dismantled even after Trump is no longer president.

1:15:43Once you have a giant agency like this that's dedicated to immigration enforcement in this very aggressive way, It's hard to think of how that ever goes away. I mean, could the next person defund it all? I'd vote for that person. Well, you'd have to get Congress to decide to shrink the agency. But, you know, historical experience kind of shows that we tend not to do that when it comes to law enforcement agencies. Even if it does go away, it will take such a long time and so much effort. But in the interim, you have a lot of suffering and a lot of, you know, frankly, terrifying actions on the part of the administration.

1:16:23Yeah, yeah. And then just adding so much fuel to the fire, all this money that sends so many people out there for potential conflict and just or even the perception that there might be future conflict, if that's the rationale that they're using to send out National Guard, is really terrifying. It's just adding so much fuel to a fire. And that's not the only problem. When the appeals court decided in favor of the Trump administration, as we've already discussed, they said, look, no matter what may be really happening, we have to be deferential to the president. This law allows the president to address emergencies.

1:16:56But what's noteworthy here is that the appeals court said, we presume that a president who relies on this statute is acting in what the court called good faith in the face of an emergency. But here's the problem. Immigration is an important policy problem, no question. But it's not an emergency, nor do we have a good faith president. Absolutely true. I mean, the one, you know, countervailing force that could emerge through all this is like this sort of almost centuries long aversion to standing armies. I mean, this started in English Commonwealth. It happened. I mean, like there wasn't a British standing army in the U.S.

1:17:38for a really long time until the French and Indian War. And then we could handle that for almost, I don't know, maybe 10 years before we freaked the fuck out and like started a revolution because of the standing army almost as much as anything else. I mean, is there a sense that that once you ratchet up, you know, this level of standing army this, you know, in the country that that just creates such a groundswell of just like rejection of it? You know, just like that is that is our nature as much as almost anything else is rejecting a standing army. I don't know. I think that's right. I mean, I think like you can have a groundswell for change for something that seems so scary.

1:18:19But I guess what's really different from between now and then is that we all need a shared reality if we're going to sort of, you know, engage and get together and say this is not what we want. I'm not sure that we're living in that world, at least in that moment right now. Yeah, yeah. Well, this is terrifying. I'm glad we're talking about it nonetheless. But thank you so much for talking with me. This has been really enjoyable, you know, like in a way. Thanks, Roman.

1:18:53Join us next month where we'll tackle Article 1, which established the legislative branch of the government. So much to cover. The 99 % Invisible Breakdown of the Constitution is produced by Isabel Angel, edited by committee, music by Swan Rial and from Doomtree Records, mixed by Martine Gonzalez. 99 % Invisible's executive producer is Kathy Tu. Our senior editor is Delaney Hall. Kurt Colstead is the digital director. The rest of the team includes Chris Berube, Jason DeLeon, Emmett Fitzgerald, Christopher Johnson, Vivian Lay, Lashma Dawn, Jacob Maldonado-Medina, Kelly Prime, Joe Rosenberg, and me, Roman Mars.

1:19:32The 99 % Invisible logo was created by Stephan Lawrence. The art for this series was created by Aaron Nestor. We are part of the SiriusXM podcast family, now headquartered six blocks north in the Pandora Building in beautiful Uptown Oakland, California. You can find the show on all the usual social media sites as well as our own Discord server where we have fun discussions about constitutional law, about architecture, about flags, about music, about movies, all kinds of good stuff. It's where I'm hanging out most of these days. You can find a link to that Discord server as well as every past episode of 99PI at 99PI.org.