California and DC Sue Trump

0:00When you're running a business, the best days are the ones where priorities stay on track. For midsize and large companies, risk can affect multiple parts of the organization at once, from property and liability to cyber and regulatory challenges. At that level, managing risk becomes an ongoing discipline. At the Hartford, the focus is on helping businesses manage risk before it turns into something more disruptive. And when losses do happen, that work is paired with insurance coverage shaped by years of underwriting, risk engineering, and claims experience. Learn more at thehartford.com slash risk mitigation.

0:35Policies provided by Hartford Fire Insurance Company and its property and casualty affiliates, Hartford, Connecticut. Ugh, hon, the ice cream has turned to soup. I think the fridge is finally dead. Hopping on grandappliance.com. Great idea. They were awesome with the Samsung Ranger microwave we bought last year. Oh, they have matching Samsung in stock and next day delivery. Let me see. Oh, yeah, that looks perfect. I hope we get the same delivery crew. Those guys were awesome. Agree. Total pros. Another crisis averted by the team at Grand Appliance. Appliance experts since 1930. Wasabi is purpose-built to free your business from skyrocketing storage costs and fees from the big guys.

1:16Wasabi is the go-to provider for professional and collegiate sports teams around the world. Check out Wasabi's AI-enabled intelligent media storage, Wasabi Air, and the industry's only cloud storage service with triple protection against cyber criminals. Wasabi, driving innovation in data storage for up to 80 % less than market competition. Try for free at wasabi.com. Wasabi Hot Cloud Storage, proud partner of iHeart Podcast Network.

1:43This is Bloomberg Law with June Grosso from Bloomberg Radio. This is Liberation Day in D.C. and we're going to take our capital back. We're taking it back. On Monday, President Trump announced that he would take federal control of Washington, D.C.'s police department, citing what he called out-of-control crime, to declare a public safety emergency. This city will no longer be a sanctuary for illegal alien criminals. We will have full, seamless, integrated cooperation at all levels of law enforcement and we'll deploy officers across the district with an overwhelming presence. You'll have more police and you'll be so happy.

2:28Well, D.C. Mayor Muriel Browser didn't seem so happy. She said violent crime in the Capitol was at a 30-year low, but that the president's authority is pretty broad under D.C.'s Home Rule Act. The Home Rule Charter requires the mayor to provide the services of NPD during special conditions of an emergency, and we will follow the law. Though there's a question about the subjectivity of that declaration. But three days later, tensions flared when the mayor and D.C.'s attorney general rejected an order from U.S. Attorney General Pam Bondi that would have stripped the Metropolitan Police Department's chief of her authority and placed the agency under federal control.

3:18And on Friday morning, D.C. Attorney General Brian Schwab sued the Trump administration, saying the attempted takeover of the city's police force was illegal. And the Home Rule Charter and the Home Rule Act is very clear with respect to when the president can request limited services of MPD, limited by time, limited by emergency circumstances, and limited for federal purposes. And in all cases, those services must be requested to the mayor to be provided by the chief of police, not a hostile takeover of our police. By Friday afternoon, both sides were in court for a hearing on D.C.'s request for a temporary restraining order to avoid sidelining D.C.'s police chief.

4:01My guest is former federal prosecutor Mary McCord, a professor at Georgetown Law. It seemed like Mayor Browser was grudgingly complying with the federalizing of the D.C. police force until this order from the U.S. Attorney General naming the head of the DEA Emergency Police Commissioner of D.C. Well, I mean, certainly even before the new order from the attorney general, there were, I think, a lot of problems with the declaration of an emergency in terms of just not really having a factual basis. But the D.C. attorney general had decided, obviously, not to sue based on that. And I think you're right that the triggering event was this order from Attorney General Bondi that basically really did take over the Metropolitan Police Department.

4:51It pointed Terry Cole, the DEA commissioner, as the commissioner to assume all of the powers and duties of the D.C. police chief, required that anything the D.C. police chief or the mayor or the commanders of police wanted to do had to get approval from Commissioner Cole before doing it. And then it actually rescinded various police executive orders and general orders. And so that really is a takeover. And that's what prompted D.C. Attorney General Brian Schwab to come in with the complaint. In the lawsuit, D.C. alleged that Trump doesn't have the authority to take control over the police force.

5:32And he can only require the mayor to offer assistance from the police in certain emergency circumstances. Tell us more about the suit. Well, I mean, it's really the D.C. Attorney General saying you've got to comply with the law and the law that President Trump invoked. That's part of the Home Rule Act that gave the District of Columbia, starting in 1973, the authority to elect its own mayor and elect the D.C. Council and enact legislation for the city and to have its own police chief and its own police force. But that Home Rule Act statutory provision that the president relied on doesn't say anything about taking over the Metropolitan Police Department.

6:13It says that whenever the president determines that special conditions of an emergency nature exist, which require the use of the Metropolitan Police Force for federal purposes, he may direct the mayor to provide him. And the mayor shall provide such services of the Metropolitan Police Force as the president may deem necessary and appropriate. And that is also time limited, no more than 30 days. So what the D.C. Attorney General is saying is there's nothing about that language that says that the president can actually appoint someone to completely take over the entire Metropolitan Police Department, rescind general orders, and require all activity to go through him.

6:57What this is saying is that the president can require the mayor to provide services of MPD. So if you think about it, let's assume, you know, there's some sort of assault on a federal building that houses a federal agency. You know, protesters rioting, throwing rocks at the building and maybe lighting fires, what have you. You can imagine the president saying, we have a state of emergency. I don't have enough federal agents to protect this federal property. I'm going to invoke this provision and require the mayor to provide Metropolitan Police Department officers to go and help protect this building and quell the disturbance and the criminal activity there.

7:37That's like requesting services and services must be provided. And I will just say, as a footnote, having been a prosecutor in D.C. for 20 years and lived in this area for 35 years, a president would never need to invoke this in order to get that kind of assistance from the Metropolitan Police Department if there was a real emergency. Because the Metropolitan Police Department and federal law enforcement work together all the time. They have all kinds of task forces. They have mutual assistance agreements. And if you had a real emergency, MPD would be going to help. There was a real emergency at the Capitol on January 6th of 2021.

8:14And even though there are U.S. Capitol Police, which are federal police that protect the Capitol, D.C.'s Metropolitan Police Department went immediately to help with the emergency there. The president, of course, didn't ask for it and didn't request it and didn't use this provision. But at any rate, this complaint is saying you can't just come in and take over the entire D.C. police. And it seems like in these lawsuits against the Trump administration, there's almost always an allegation that the Administrative Procedure Act is being violated. What was it here? In this case, what the president did is he delegated his authority to the attorney general, Pam Bondi, who then is the one who put out this order actually effectuating or trying to effectuate this takeover.

8:58And so part of the causes of actions in the complaint are that that is an administrative action taken by the head of an administrative agency that is contrary to law and arbitrary and capricious. So a number of different causes of actions in the complaint, but it really all comes down to there's just no authority to completely take over the police department. Let's talk about the hearing over D.C.'s request for a temporary restraining order before Judge Anna Reyes. What were her main concerns? So she agreed that Section 1 of Attorney General Bondi's order, this is the section by which Attorney General Bondi purported to basically give Mr.

9:38Cole all of the authorities of the chief of police and complete direction and control really over the Metropolitan Police Department. She agreed that that is inconsistent with the Home Rule Act. In terms of the other parts of the order, where Attorney General Bondi purported to rescind executive orders and general orders that operate within the police department, which are all immigration related, they have to do with not voluntarily cooperating with ICE enforcement unless it's something that's required by law, and there's very little that's actually required by law. So what the judge was focused on is, isn't it a problem to have these things be rescinded?

10:18Don't you need to put things in a framework of asking for services from the mayor and the mayor providing those services? What you seem to be trying to do, U.S. government, is you seem to be essentially bypassing the mayor and saying we're just taking over. And that can't be the way the statute works, because when Congress enacted the Home Rule Act, they considered a provision that would have just allowed the president to just take over the police department. And that was rejected because the members of Congress who were considering the Home Rule Act, they were doing so for the very purpose of there being local control, you know, turning over local government, local policing to local control.

10:59And so it would be the antithesis of that to have the president actually take over the police department. And what was the government's argument in support of this order from the U.S. Attorney General? The government was trying to argue that really the request could simply be to the mayor that we require the services of MPD and that then the president, pursuant to the Home Rule Act, has the discretion to ask for services as the president may deem necessary and appropriate. And in the view of the government, that kind of meant you can ask for anything and you can have a federal official actually controlling the police department.

11:39That's not where we ended up. We ended up in the judge taking a very long break to see if the parties could work something out between them, because she said, you know, I'll assure a TRO if I have to. But if it's violated, that's going to be contempt of court. And I really think that this is the kind of thing that the parties should try to work out on their own. And they did. Both sides agreed to leave the D.C. police chief in control of the department. The DEA chief is required to go through the mayor, and the mayor is still required to fulfill policing requests from the Trump administration.

12:17Thanks so much for joining me, Mary. That's Mary McCord, a professor at Georgetown Law. Coming up next on the Bloomberg Law Show, California and the Trump administration face off at a landmark federal trial over Trump's deployment of troops to Los Angeles in June. I'm June Grosso, and you're listening to Bloomberg. This is the Bloomberg Tech Minute brought to you by ChatGPT. Now with ChatGPT Work, I'm Carol Masser. DoorDash, the largest food delivery company in the U.S., is building its own delivery drones and has gained the necessary FAA approvals to operate them commercially, the latest in its effort to delegate more orders to robots as a way of cutting delivery times.

13:02Bloomberg's Natalie Lung reports the company says it has been conducting pilot programs with various restaurants, some of which have seen their order volume grow during the test period. The effort marks an expansion of DoorDash's in-house robotics efforts to reduce reliance on human couriers for some orders, as their wages constitute a key expense to the business. Drones are also a way for DoorDash to cut delivery times on orders from more remote locations that some dashers may not want. That's the Bloomberg Tech Minute brought to you by ChatGPT. Put ChatGPT to work on your most ambitious ideas and projects.

13:37Get started at ChatGPT.com today by selecting Work Mode. Available on Plus and Pro Plans.

13:47The washer won't start and the laundry's already piled to the ceiling. Hopping on GrandAppliance.com. Great idea. I heard they have next day delivery. Uh-huh. I'm seeing that too. And they have a bunch of GE options in stock. Oh, that's great. We've always had good luck with GE appliances. This one looks perfect. Scheduling for tomorrow. Gosh, Grand really makes it easy. Another crisis averted by the team at Grand Appliance. Visit GrandAppliance.com today. Grand Appliance, appliance experts since 1930. Everyone's talking about how AI is transforming work, especially in sales. While the landscape shifts, one thing remains the same, the thrill of closing a deal.

14:25Whether it's a gong or a confetti machine, every team has its celebration rituals. Adio is designed for that moment. It's the agentic CRM that turns customer signals into actionable insights, helping you close deals faster. With revenue agents and automations working around the clock, you'll have everything you need to scale your go-to market efforts. Elevate your wins with Adio. Start your free trial at adio.com slash iHeart. President Trump has repeatedly said that sending about 4 ,000 troops to Los Angeles in June saved the city. And you watch Grimes out, but you wouldn't have Los Angeles. It wouldn't be existing today.

15:03We would have had to cancel the Olympics if I let that go on. But L.A.'s mayor and California's governor have said that the troops weren't needed to handle the limited protests and the presence of the military actually inflamed tensions. The Marines that were never needed here, that never played a role in crowd control, they're not trained to do that. They're trained to kill the enemy on foreign lands. The enemy is not Angelino's. But there's a bottom line. The police do policing. Military is for the battlefield. After hearing testimony in a landmark trial in San Francisco this week, a federal judge will decide whether Trump's deployment of the National Guard and Marines to Los Angeles was legal.

15:49My guest is an expert in war powers and national security, Claire Finkelstein, a professor of law at the University of Pennsylvania. Claire, tell us about California's suit against the Trump administration. There were two bases that the Trump administration has claimed for federalizing the California National Guard, and one is the protective power. This is claimed to be an inherent Article II power that the president can wield in order to protect federal assets. That means federal persons, federal buildings, and to say, we're out there in order to protect anything federal. So that means ICE agents.

16:34And the claim is ICE agents couldn't do their jobs. There were also federal buildings under threat. And so we had to federalize the National Guard in order to protect federal assets. So that's number one. And then the other one is 10 U.S.C. 12406, which is a little used statute. The last time it was used was actually in the Nixon era to federalize the on the grounds that there was a rebellion or that they could not otherwise get compliance with the law. And that was something that the Trump administration was claiming in this instance. The state of California challenged that and said, what's the basis for the federal government thinking that there was a rebellion?

17:18No signs of rebellion here, just some law enforcement issues, which we, the state of California, can handle. On top of it, California was saying this is a violation of the 10th Amendment. We, the state of California, California governor, California officials, are in charge of law enforcement and police powers. And we are not asking you to come in. So that in general, when there is federalization to assist with policing, that is normally at the request of a governor. 12-406 requires that troops be deployed through the governor, and that wasn't done. Governor Newsom wasn't even informed about the federalization of the National Guard before it occurred.

18:02That's the gist of their claim. The trial judge Charles Breyer, who, by the way, is retired Justice Stephen Breyer's younger brother, said that the factual issue is, did the Marines and National Guard violate the Posse Comitatus Act? Tell us about that act from 1878. So the Posse Comitatus says that federal troops normally cannot engage in law enforcement. So that is very different from when the governor is in control of the California National Guard under state's active duty status or Title 32, because in that case, there is an exception to posse comitatus when it is under control of state and local authorities.

18:50But when troops are federalized, the Posse Comitatus Act applies, and that is a criminal statute that says federal troops cannot engage in law enforcement activities. Now, the federal government says in this case, Under the Protective Power and under 12406, number one, we were not engaged in law enforcement activities. The rules for the use of force that we gave to the troops, that's like their rules of engagement, except in domestic context, we call that rules for the use of force, did not involve, for example, making arrests. Troops were told that they could not make arrests specifically, and therefore they were not violating posse comitatus because they weren't involved in law enforcement activities.

19:33But California has said, in fact, you were involved in law enforcement activities and cited a number of instances such as the ability to detain individuals waiting for law enforcement such as LAPD to show up. They maintain that that's a violation of posse comitatus. And why does the administration say that posse comitatus doesn't even apply here? The administration, in addition to everything else, rejects the claim that posse comitatus applies when the troops are deployed in their protective capacity, namely engaged in protection for federal assets. They also deny that it applies under 12406, and they say 12406 is like the Insurrection Act.

20:29Under the Insurrection Act, it's generally recognized that there is an exception to posse comitatus and that the president is allowed to deploy federal troops in a law enforcement capacity, but only because there is deemed to be a situation that is so serious that in fact there's a full-blown insurrection and there is no way to gain control over the region or that part of the country without having federal troops engage in law enforcement activity. The testimony of one of the witnesses exposed the internal tensions over the deployment. Long-time military leader Major General Scott Sherman, who commanded the Guard troops in L.A., testified he'd never heard the word rebellion used to describe the situation in the city, and also that he had expressed resistance when immigration officials initially asked for military support.

21:31So his testimony was important for a couple of reasons. The first reason is that he testified that he expressed reservations, and stronger than that, that he voiced opposition to this operation, and that he was rebuked by a senior customs and border patrol official who questioned his loyalty to the nation, which is very surprising. It's very important that the military are able to express their concerns about the boundaries of the operations that they're being asked to undertake. And normally, that would be given an awful lot of deference. When you have a senior military leader who is saying, this is not an operation that we should be undertaking, it's not appropriate for the military, you would expect an administration to be sensitive and respectful of that.

22:23But it also suggests that there was a sort of pecking order, and that was a concern about this operation to begin with, that Customs and Border Patrol were sort of calling the shot and that the military was going to be placed in a subordinate position to Customs and Border Patrol. That's problematic from the standpoint of Fosse Comitatus, since the military is not supposed to be subordinate to civilian law enforcement agents because it sort of turns them into law enforcement agents. So that's one reason this is problematic. Another reason his testimony was important is that he talks about what troops were told they were allowed to do and what they were not allowed to do.

23:13So though the administration has been very insistent that the orders to troops did not violate Posse Comitatus, his testimony suggested that they were allowed to turn military force to civilians if civilians were impeding federal operations such as ICE operations. Now, that might be what you would expect if they're there in their protective capacity, but it shows how tricky it is to have troops out there and to expect that they're not going to be involved in law enforcement activity because it's very hard to draw the boundary there. If they're there in a protective capacity, they could very well end up having to engage in law enforcement activities.

24:03And typically, our troops are not trained for that. They don't know how to conduct arrests. They don't necessarily know how to intersect with civilians who are engaged in criminal activities. They don't know how to preserve a crime scene. They're not necessarily trained in that. And so though our National Guard troops are excellent at what they do, crime control is not their beat. And this is presumably one of the reasons why General Sherman was concerned about this operation. If all the troops were doing was guarding the ICE agents, would that still be a problem under posse comitatus? Well, in theory, no.

24:43But as soon as you're guarding personnel, you could very easily stray into activity that implicates posse comitadas. So what if there's an attack on a federal officer and there's no one around but National Guard troops to engage in a detention or make that arrest? This is what happened in one incident involving a veteran who was trying to enter the Bureau of Veterans Affairs, and the Marines detained him. And he was detained for two hours, roughly. It was really a mistake. But because there were no LAPD present at the time, they viewed it necessary to hold him and detain him until law enforcement officers could show up.

25:33The question is whether or not there was a violation of posse comitatus just in the detention itself. Trump has made threats against other cities. That's going to serve as a beacon for New York, Chicago, Los Angeles and other places all over the country. This whole our whole country is going to be so different and so great. If President Trump tries to, for example, take over the New York police or the Chicago police, there he will not have the home rule advantage that he has in D.C. and he will not find himself in a very good legal posture there. He really doesn't have any basis. And the control over the police is strictly reserved to the state under the Tenth Amendment.

26:21That's core Tenth Amendment doctrine. I think that's something that any federal judge would reject very quickly. Now, as far as federalization of the National Guard in any other state, he will be in a similar posture to California, which is why this California trial is so important. It will teach judges what Judge Breyer is going through right now and the evidence that Judge Breyer is sifting through will be extremely instructive for federal judges in other jurisdictions as they inevitably weigh posse comitatus issues in potentially the state of New York or the state of Illinois. I think we're going to find the situation replicated and clarity about the boundaries set by posticomitatus and what federal troops are permitted to do and not do will be extremely important in the coming weeks.

27:15I'm sure we'll be talking again. Thanks so much, Claire. That's Professor Claire Finkelstein of the University of Pennsylvania. Coming up next, a win for the administration as a federal circuit court allows it to block billions of dollars in foreign aid. I'm June Grosso, and you're listening to Bloomberg. This is the Bloomberg Tech Minute brought to you by ChatGPT. Now with ChatGPT Work, I'm Carol Masser. DoorDash, the largest food delivery company in the U.S., is building its own delivery drones and has gained the necessary FAA approvals to operate them commercially, the latest in its effort to delegate more orders to robots as a way of cutting delivery times.

27:57Bloomberg's Natalie Lung reports the company says it has been conducting pilot programs with various restaurants, some of which have seen their order volume grow during the test period. The effort marks an expansion of DoorDash's in-house robotics efforts to reduce reliance on human couriers for some orders, as their wages constitute a key expense to the business. Drones are also a way for DoorDash to cut delivery times on orders from more remote locations that some dashers may not want. That's the Bloomberg Tech Minute brought to you by ChatGPT. Put ChatGPT to work on your most ambitious ideas and projects.