California vs Trump & Big Beautiful Bill

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1:10Explore more at 4imprint.com. 4imprint. 4certain. This is Bloomberg Law with June Grosso from Bloomberg Radio. Yesterday, while announcing the federal takeover of D.C.'s police department and the deployment of the National Guard to crack down on crime in the nation's capital, President Trump threatened to apply the same unprecedented action to other Democratic-run cities like New York and Chicago. And if we need to, we're going to do the same thing in Chicago, which is a disaster. We have a mayor there who's totally incompetent. he's an incompetent man and we have an incompetent governor there pritzker's an incompetent but when i look at chicago and i look at uh la if we didn't go to la three months ago la would be burning like the part that didn't burn but the legality of that deployment of the national guard and Marines to Los Angeles in June is a question that will be determined at a trial this week in San Francisco federal court.

2:22Trump sent the troops to the nation's second largest city to address protests against immigration arrests against the wishes of California Governor Gavin Newsom. Newsom and L.A. Mayor Karen Bass have argued that the troops weren't needed and their presence actually inflamed tensions in the city. He federalized another 2 ,000 Guard members. He deployed more than 700 active U.S. Marines. These are the men and women trained for foreign combat, not domestic law enforcement. We're working with officials. We're organizing resources. But what we're seeing in Los Angeles is chaos that is provoked by the administration.

3:06My guest is Claire Finkelstein, a professor of law at the University of Pennsylvania. She's an expert in war powers and national security law. Claire, tell us about California's suit against the Trump administration. So California filed suit to object to the federalization of the California National Guard. And 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.

3:58So that means ICE agents. And 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 Guard on the ground 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?

4:46No 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 Tenth 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. There's some other issues, other arguments that they made about how 12406 was applied, such as the fact that 12406 requires that troops be deployed with coordination of the governor, that the troops have to be deployed through the governor, and that wasn't done.

5:37Governor Newsom wasn't even informed about the federalization of the National Guard before it occurred, and a number of other points that they argued, but that'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, and that's what's being litigated this week, 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.

6:28because in that case, there is an exception to posse comitatus when it is under control of state and local authorities. But 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.

7:11Troops 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. But 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. Is Judge Breyer only going to consider the Posse Comitatus Act or will he also consider the claims that the deployment violates the 10th Amendment? From what I understand, posse comitatus is the main issue under consideration, but it looks very much as though issues of federalization will be considered as well, because it's really impossible to consider one without considering the other.

8:05The 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. Under 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.

9:01And there was no way to gain control over the region or that part of the country, whatever is at issue, without having federal troops engage in law enforcement activity. One of the first witnesses on the stand was a longtime military leader, Major General Scott Sherman, who commanded the Guard troops in L.A. So he testified that he'd never heard the word rebellion used to describe the situation in L.A. And also he expressed resistance at first when federal immigration authorities wanted military support. So 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.

10:02It'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. But 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.

10:52That's problematic from the standpoint of Fosse Comitata, 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 talked about what troops were allowed to do, what they were told they were allowed to do, and what they were not allowed to do. So 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.

11:49Now, 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. And 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.

12:30They'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. Another witness who's taken the stand already is the Los Angeles field office director for the Department of Homeland Security. And he testified that before the deployment, they received multiple reports daily of attacks on his officers. But after we still had officer assault situations, but they did reduce drastically. If all they were doing was guarding the officers, there wouldn't be a problem under posse comitatus, would there?

13:13Well, again, in theory, no. But as soon as you're guarding personnel, you could very easily stray into activity that implicates posse comitatus. So, again, what if there's an attack on a federal officer and there's no one around but National Guard troops to engage in the 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. They mistook his intentions and they did not understand what he was there for. 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.

14:16The question is whether or not there was a violation of posse comitatus just in the detention itself. Coming up next, the importance of the trial judge's decision in the context of Trump's threats to exercise similar powers in other cities. You're listening to Bloomberg.

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16:53Whether you're gearing up for fall events or simply planning ahead for the season, 4imprint can help your brand show up, stay useful, and make connections that last. Explore the possibilities at 4imprint.com. 4imprint. For certain. This week, the Trump administration and California are facing off in court for a three-day trial over President Trump's decision to deploy the National Guard and Marines in Los Angeles. Trump sent the troops to address protests against immigration arrests against the wishes of Governor Gavin Newsom. I've been talking to Claire Finkelstein, a professor of law at the University of Pennsylvania.

17:32Claire, the governor said that because the National Guard was being used in this capacity, they weren't available to do the things they would normally do in California. For example, helping with suppressing the wildfires. Will the judge be considering that aspect of it? I do think that's something that a judge could take into account. But now we start to get into the tricky territory of exercising judgment over where troops are best used. And that's normally not really within the purview of a judge to make those decisions in any way. But if the judge hears testimony to the effect that, you know, there really wasn't an emergency in Los Angeles, it really wasn't necessary to have federal troops out there, which indeed is supported by the fact that many of them were just sort of standing around doing nothing.

18:29and there were needs that the state was not able to fill because of the commandeering of National Guard troops, then I think that that may weigh in the judge's calculation. So the administration says the troops were there to escort federal agents, to protect federal personnel and property. They deployed about 5 ,000 California National Guard members and 700 Marines to Los Angeles. Do the numbers seem out of kilter? They do seem out of kilter, and clearly it wasn't necessary because most of the troops were not doing anything. Some of the descriptions were sitting around and playing cards. That's the ones who weren't even properly deployed.

19:13They were just held in reserve, and then among those who were deployed, it was really more of a show of force. For those who were put into an active posture, some of the things that they did were very inappropriate. And of course, that was upon orders. It wasn't the fault of those who engaged in those activities. But, for example, there was a park that was very aggressively visited by National Guard that was a frequent play location for children and children who were going off to summer camp on buses. There was no criminal activity. There were no demonstrations going on. There were no federal buildings.

19:58And so the idea that National Guard were needed on horseback in that instance to go through the park is a very questionable one and sort of makes you wonder what the purpose was for deployment in the first place. What kinds of things would the Trump administration have to show in order to prevail at this trial? There was certainly criminal wrongdoing in some of the demonstrations that occurred early on. But what they would have to show, it seems to me, is that the California administration, Los Angeles, was not able to handle that from the standpoint of ordinary law enforcement. Question whether or not, even if they could show that, the fact that California itself was not requesting the presence of those troops.

20:47was not saying, look, we really need your help, as in the Rodney King situation. That is a point of law for the judge to decide whether or not it was even legal under the authorities that the Trump administration used for them to federalize the California National Guard. There are only, I think, a few hundred National Guards still deployed in L.A. what kind of a decision could Judge Breyer make? Could it be a broad decision with prospective application? He could say the National Guard is bound by posse comitatus, and here's what posse comitatus needs. It means they can't do X, Y, and Z. So therefore, This could be a very important decision for setting the tone elsewhere, other places where posse comitatus applies, though it wouldn't strictly be binding on other states.

21:47It is a very important decision interpreting the posse comitatus act, and there are not a lot of decisions under the posse comitatus act. So it would be very important to have a judge say, here's what we understand the Posse Comitatus Act allows and doesn't allow. I'll also say the mere fact that a judge was willing to get in there and render a decision on this issue, if indeed the judge is willing to do that, would be very important. because a lot of the times you might find judges unwilling to address the nitty-gritty of such a question and say, you know what, we're going to leave it to the administration to exercise its judgment here.

22:30So here is a very important national security matter in which a court is willing to hold hearings, entertain witnesses, listen to evidence to weigh the actual meaning of posse comitatus and what the restrictions are on an administration that is trying to federalize troops and invoke other troops, such as Marines, to engage in something that comes at least very close to law enforcement activities. Do the same rules apply to the Marines as applied to the National Guard as far as posse comitatus is concerned? Yes, they do. So all federal troops, if the authorities are the same. Now, if the Trump administration was using the Insurrection Act, that would be a different matter.

23:19But given that they decided to proceed with 10 U.S.C. 12406 for the federalization and for the Marines, it's the protective power. I will say that the case for suspending posse comitatus is even weaker with the Marines because the protective power is an implicit, not an explicit power. And any exception to posse comitatus clearly has to be explicit, not implicit. So Congress has to have explicitly exempted the federal authority in question from posse comitatus in order for that exception to apply. And in the case of the Marines, since they were deployed primarily under the protective power. The authority for the deployment was implicit, not explicit.

24:14And is Judge Breyer's decision going to be even more important because President Trump is threatening to deploy troops similarly in other cities that he says are out of control with crime and because of what's happening in D.C. right now? Well, with D.C., it is potentially a different story. So the Justice Department has argued that posicumitatus doesn't apply when the president invokes the National Guard in D.C. because the president is sort of in the position of the adjutant general with regard to D.C. troops. I would myself question that. I think there are reasons why posicumitatus may still apply, and there are many reasons to think that it's not appropriate for troops to be involved in law enforcement, even in D.C., but the legalities will be subtly different, and so they're going to be slightly different arguments that apply.

25:17In addition, in D.C., we have the issue of takeover of the D.C. police, and that's under the home rule legislation. That is explicitly provided for under that legislation. And for 30 days, the president does have the ability under that legislation to take over the D.C. police in an emergency. President Trump was also talking about Chicago and New York. He's talked about New York before. So that would be back to the California situation. 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.

26:12He really doesn't have any basis. And the control over the police is strictly reserved to the state under the 10th Amendment. That's core 10th Amendment doctrine. So it'd be very surprising if he would try to take over the police in a major city other than D.C. 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 wake posse comitatus issues in potentially the state of New York or the state of Pennsylvania or the state of Illinois, I think we're going to find the situation replicated and clarity about the boundaries set by posse comitatus and what federal troops are permitted to do and not do will be extremely important in the coming weeks.

27:27Has the Supreme Court ruled in this area? While there's no Supreme Court decision on posse comitatus, there's a long line of Supreme Court decisions on related themes that I think have implications for interpreting posse comitatus. For example, the presence of troops in and around demonstrations may put a chilling effect on the ability to gather and assemble to protest the government. Now, that's a core First Amendment right. And so what you find is a dovetailing between the requirements of the Posse Comitatus Act that says federal troops can't engage in law enforcement and the requirements of First Amendment doctrine that say people should be able to protest the government, express their views freely, assemble in the streets.

28:23So if troops are being used to chill free expression, that would be a violation potentially both of posse comitatus, if they're engaging in law enforcement, and of the First Amendment. Or take Fourth Amendment doctrine, for example. There's lots and lots of Supreme Court decisions on Fourth Amendment doctrine. And we know that there were Fourth Amendment issues implicated in the holding and detention of the veteran who was just seeking to go into the Bureau of Veterans Affairs, who was held by the Marines. That is a core Fourth Amendment issue. If federal troops are not in a position to meet Fourth Amendment doctrine, are not in a position to read people their Miranda rights, are not in a position to follow due process in engaging in detentions and potentially arrests, then they would be constrained in what they could do, acting in a law enforcement capacity by the Constitution, not just by posse comitatus.

29:31So I think there is a lot of constitutional doctrine in and around posse comitatus that has implications in this area. I'm guessing that Judge Breyer's decision will be a lengthy one. Thanks so much for joining me, Claire. That's Claire Finkelstein, a professor of law at the University of Pennsylvania. Coming up, we'll take a look at the big, beautiful bill. This is 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.

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32:19Whether you're gearing up for fall events or simply planning ahead for the season, 4imprint can help your brand show up, stay useful, and make connections that last. Explore the possibilities at 4imprint.com. 4imprint. 4certain. Senate Democrats fanned out to their states this month to host town halls armed with attack lines against President Donald Trump's signature legislative achievement, the so-called Big Beautiful Bill. Democrats are trying to highlight the act's impact on voters, saying it will cut Medicaid, benefit the rich, and make middle class life more expensive. One thing they haven't argued in all the months the Republicans spent laboring to pass the massive tax and spending law is that there's a section of the bill that violates the Constitution.