Trump's Deployment of Troops Questioned

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1:46This is Bloomberg Law with June Grosso from Bloomberg Radio. President Donald Trump's efforts to send troops into Democratic-led cities is facing its biggest legal test yet. With a trial this week over his power to deploy the National Guard to Portland, Oregon to counter protests. And of course there's the deployment to Chicago, which is in a holding mode right now before the Supreme Court. My guest is immigration law expert Leon Fresco, a partner at Holland and Knight. There are lawsuits challenging Trump's deployments in Los Angeles, Chicago, Portland, and D.C., making their way through the courts.

2:29Have any of them so far answered the question of whether he legally invoked Section 12406 of Title 10 to bring state National Guard troops under federal control? Well, the closest cases that have done this are the two to one panel decision in the Portland case, where the Ninth Circuit Court of Appeals ruled in favor of President Trump. And they said that the way a court analyzes this, they're allowed to analyze it. So at least they got that far. They didn't say that the courts can't analyze it. But they said that they have to use a highly deferential test and that the standard of review was, quote, whether there was a colorable assessment of the facts and law within a range of honest judgment, which is a highly deferential standard that basically said if the president had any sort of decent argument for saying that the guard needed to be deployed in order to either enforce federal law or prevent rebellion circumstances, that would be enough.

3:40The dissenting judge said, no, no, no, this is just like a normal factual question where you have a hearing and or a trial and you come to the factual decision like any trial. Was there a murder? Yes or no? It's not any deference that's given. You have a trial and in this case, whoever wins under a preponderance of the evidence standard would win. And the dissenting judge said that there wasn't enough evidence that there was actually any sort of rebellion or other issues in Portland. And so now this two-to-one decision is now going to go to en banc review. The chief judge said for the court, without needing anybody to ask the chief judge, there should be en banc review.

4:26And now there's going to be en banc review to determine whether that 2-1 decision would apply. In Chicago, we have a similar situation where the city of Chicago and the state of Illinois also sued, arguing that the deployment of the National Guard in the Chicago area also violated the statute and the 10th Amendment and the posse comitatus law, which prevents federal troops from enforcing civil laws. And the judge in that case issued a temporary restraining order. The Seventh Circuit upheld the ruling and President Trump asked the Supreme Court to lift the TRO. And now the Supreme Court in that case has asked for additional briefing to try to determine whether the words regular forces in the statute means military forces and then how that interpretation affects the president's authority to federalize the Guard.

5:27And so at the moment, that's where we are on these things. We don't know exactly what the president can do, what the standard of review is, etc. So let's go to the Supreme Court for a second. And, you know, that's because the Trump administration filed an emergency petition to allow them to deploy the troops to Chicago. So nine days passed before the justices issued this order requesting more information. And this has been a court that's been very quick to answer Trump's emergency requests, usually in his favor. What does it tell you that with this request, they're asking about the specific wording of the law, which says a president may deploy the Guard when he is, quote, unable with the regular forces to execute the laws of the United States?

6:21What is interesting is they're trying to figure out, because there's two different types of, I would say, armed personnel that's discussed. One is regular forces. So who are these regular forces that the president is allowed to use? And then when those quote unquote regular forces fail, then the president is allowed to call in federal service members and units of the National Guard of any state. So the question is, does regular forces mean that the president can already send in military troops? That's a little bit complicated because if it is, then who are these federal service members that the president is then allowed to send in, plus the units of the National Guard of any state?

7:08So that's the question. Does it mean U.S. military forces or does it mean people like FBI, you know, Homeland Security investigation and things of that nature? So sort of federal police power force type people, but not actual U.S. military troops. I think it would make a lot less sense if regular forces didn't just mean FBI, ICE, HSI, that kind of thing. The sort of people who enforce the federal law, the ATF, that kind of group, as opposed to the military. because if it also meant the military, then who are these quote-unquote federal service members that can be called into service if the quote-unquote regular forces are not able to execute the law?

7:56So that's what I think it means, but we'll have to wait and see what the Supreme Court says it means. They don't seem to be in a hurry to decide because the briefing schedule puts the briefings up until November 17th, and then they have to decide. So that means, what, three weeks or so where there won't be any deployment of troops. Correct. I mean, this is one of the most complicated and important consequential questions probably that the Supreme Court has had in the last couple of decades, because it really does get to the heart of what a president can and can't do with regard to using the military in the normal streets of the big cities of America.

8:38So this is not something to trivialize or to issue any kind of quick ruling on. And I think if there was an actual place in America right now that was ungovernable and where people couldn't go to work and there were barricades everywhere and nobody could go to school, maybe there would be urgency here. but that's not really the urgency anyone is talking about. There's not a city in America where no one can go to work or go to school or get treated in a hospital or any of those major things. And all of these cities, sports events are still going on, concerts are still going on, all of these things.

9:19And so it's hard to say there's an insurrection going on. In a true national emergency where none of those things were going on, maybe we'd have a faster ruling, but I think the court understands here. It's better to get it right. But is the Supreme Court going to look at the facts or are they going to look at the law and interpret that? Well, no, I'm saying they're looking at these facts unofficially to determine how fast they're going in the speed of the case. But I think what they're going to look at for the decision in the case is the level of deference that the president's determination gets.

9:55And then, based on the level of deference, they may remand for a trial or a hearing based on that level of deference, or they may decide they have enough evidence to move forward with that level of deference and decide, here's what the facts dictate based on the level of deference we decide. So it could go either of those two ways, but we'll just have to wait for the Supreme Court to say. And plus, that may end up being different in Chicago versus in Portland or in Los Angeles. They may decide that there is a bigger crisis in one location than in another. And so in one location, they can deploy the federal troops.

10:36And in another location, they cannot because it doesn't rise to whatever new standard they've decided to apply in this case. Support for the show comes from Public.com. If you're actively involved in your portfolio, you probably catch yourself repeating the same actions. Buying the dip, manually sweeping idle cash, putting on a hedge. On public, you can now create AI agents that handle all these tasks on your behalf. Just describe what you want to do in plain English. Like, if the VIX hits 25, buy a put option on the S &P 500. Or, if my cash balance goes above$20 ,000, move the excess into my direct index.

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11:53So there's a lot of noise about AI, but time's too tight for more promises. So let's talk about results. At IBM, we work with our employees to integrate technology right into the systems they need. Now, a global workforce of 300 ,000 can use AI to fill their HR questions, resolving 94 % of common questions. Not noise. Proof of how we can help companies get smarter by putting AI where it actually pays off, deep in the work that moves the business. Let's create smarter business. IBM. When you own your own business, you own every decision. Now own the card that rewards you for it. The Chase Sapphire Reserve for Business card brings the best Sapphire Reserve benefits to business owners who expect hardworking rewards.

12:36Designed to meet the needs of business owners at scale, this pay-in-full card elevates your travel experience and offers premium benefits and value toward business services that will take your business to the next level. Fuel your business and maximize rewards with 8x points on all purchases through Chase Travel, 3x points on social media and search engine advertising, annual partnership credits, and more. Make every journey more rewarding with a$300 annual travel credit and access to a network of airport lounges, whether you're looking for pre-flight productivity or time to rest and recharge.

13:11Chase Sapphire Reserve for Business. It's the card that gives back all you put in. Learn more at chase.com forward slash reserve business. Chase for Business. Make more of what's yours. Accounts subject to credit approval. Restrictions and limitations apply. Cards are issued by JPMorgan Chase Bank N.A., member FDIC. Let's turn now to Greg Bovino, the chief of the Border Patrol's El Centro sector in California, who's been very high profile in the Trump administration's crackdowns on immigration in sanctuary cities. He's been three decades with the Border Patrol, and he's emerged as the face of the Trump administration's most aggressive operations against migrants in these Democratic-led cities?

14:00Well, he comes from the Border Patrol, from the U.S. Customs and Border Protection. He doesn't come from ICE, which is the Immigration and Customs Enforcement Division that actually is in charge with the detention, apprehension and removal of people who are here illegally. That's who does it. It's ICE. The Border Patrol has a different mission. They have two different parts. They have one that protects the United States from people trying to cross in between ports of entry, and they have a second mission of guarding ports of entry themselves so that people don't get through the ports of entry who shouldn't get through.

14:38And this is the area, the Border Patrol, where Mr. Bovino comes from. And this has happened in the past because what happens is that within the Department of Homeland Security, they get the impression that the people who come through the border patrol have a more police-oriented view of the world because that's what they're doing. They're actually walking around looking for crime, so to speak. If they see someone cross the border, then they're going to apprehend them the same way a police officer, if they see someone robbing a store, they will apprehend them. Whereas ICE traditionally doesn't have that ethos of operating as roving cops on a beat.

15:20They have more of a, here's a list of people we are tasked with deporting today, and now we need to either go pick them up at work, or pick them up in the courthouse, or pick them up at home, and it's a much more targeted, planned day. That's how ICE likes to operate, is within the targeted, planned day for operational concerns. And this has developed over 30 years. This is not something that's happened over a day or two. Because what happens is when I start operating in the same way local police would start operating, which is just look around and try to find crime, then what you're doing is looking around and trying to find people who are there illegally.

16:04So just their existence in America is the crime. and whether you like this policy or don't like the policy, I'm not even saying anything about the policy. I would just hope that the listeners of your broadcast would agree that whether you like it or not, when that gets implemented, when ICE gets deployed in the same way local police would be deployed, it creates tension on both sides of the equation where the people who don't like ICE deployed in that manner start protesting start barricading ice start hiding people in their houses and start doing everything they can to resist ice operating in that manner and this isn't even new either you can find stories about this every day for the last 30 years it's just that when you do it at a higher scale you get more of it or if you don't do this then you have the people who say well we're not getting enough arrests and it's true you're not going to get enough arrests if you don't have these roving enforcement arrests that happen where you can just grab 30 people at one place at one location just because you think it looks suspicious there yes that will increase the number of arrests but that also increases the level of tension that you're tightening in that area when you do that and again I'm not saying that means you should do it or you shouldn't do it, but that's why the Trump administration has moved a lot of the ICE agents who are leading these various local locations out of their positions and is trying to bring in Border Patrol people like Mr.

17:45Bovino because it's saying we need to change the ethos of ICE and turn it into a police-like unit that's roving around looking for crime, so to speak. But in this case, again, the crime is just the existence of the human being in America, which is what makes it complicated. So you're not observing someone stealing something or you're not observing someone injuring somebody. You're just observing someone standing there and you're asking yourself, is this person that's standing there, standing there illegally? And you don't know. They might be. They might not be. But the act of asking over and over and over again creates a level of tension that's completely different than any other kind of police operation creates.

18:34And that's why, as I explained previously, ICE prefers the ethos of saying, look, I'm sorry, this person, Joe Smith, is on a list. They committed a crime or they were ordered deported in 2008 and they've managed to stay here 17 years. Why do you think that you should defend this person? That's a much easier law enforcement role to defend. And that's why they like that as opposed to these roving operations. Coming up next, the governor of Illinois makes a Halloween request to ICE. Support for the show comes from Public.com. If you're actively involved in your portfolio, you probably catch yourself repeating the same actions.

19:14Buying the dip, manually sweeping idle cash, putting on a hedge. On public, you can now create AI agents that handle all these tasks on your behalf. Just describe what you want to do in plain English. Like, if the VIX hits 25, buy a put option on the S &P 500. Or, if my cash balance goes above$20 ,000, move the excess into my direct index. You approve of the workflow and your agent handles the rest. Monitoring the market, watching for your conditions, and executing your strategies exactly as defined. An investing platform driven by your intent, not just your clicks. You can also get full read and write access to your account via the public API.

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21:45Restrictions and limitations apply. Cards are issued by JPMorgan Chase Bank N.A., member FDIC. A group of journalists, news advocacy organizations, and protesters are suing the government, claiming that federal agents' aggressive tactics in Chicago violated their rights. The case has grown into something of a referendum on the repeated use of force by federal agents in the Trump administration's crackdown on illegal immigration. I've been talking to immigration lawyer Leon Fresco of Holland and Knight. So, Leon, in that Chicago case, Federal Judge Sarah Ellis has issued some orders, including requiring agents to wear visible identification and issue warnings before using weapons like tear gas or pepper spray.

22:38And she's expressed alarm over videos and photographs that show the agents confronting protesters and deploying tear gas at a weekend Halloween event. We've been talking about Greg Bovino, the Border Patrol chief, and she had him on the stand for about an hour the other day asking him about the enforcement tactics, and she ordered him to come back every day to report to her. But the Seventh Circuit Court of Appeals paused that order. Why? Well, the Seventh Circuit issued a very short decision putting it on hold, but we can infer from that that they agreed with the government's argument that the problem is, and you have to look at this from a practical perspective, not just from a, well, what's the problem with one hour of coming in and speaking to the judge every day?

23:31But the truth is, if you're doing that, if you're speaking to the judge every day for one hour, you're legitimately preparing to give that testimony, because no one just sends a witness in to speak to a federal judge without preparation for the testimony, giving them facts, giving them everything that's happening that day. So basically, you will have turned the head of the law enforcement operation into a professional witness. This person wouldn't actually be able to do any other work all day. Their entire day would be devoted to learning the facts that they were going to give the judge that day, preparing the testimony, and then testifying.

24:09That would be an entire day of work. And the federal government said that's not been a thing that's ever existed where we've ever had a federal judge turn a U.S. law enforcement official into a federal witness that has to come every day and just do that and not actually do the job they're supposed to do. and they point out the federal government correctly that even the plaintiffs didn't ask for this this was just something the judge did out of frustration with the federal government so the plaintiffs didn't ask for it because i i doubt they would have even imagined the world where such relief could have ever been granted but the judge was so frustrated that the judge granted the relief and so i do think it was very helpful to the federal government to make an argument that hey if the plaintiffs don't want something.

25:00Why is the judge ordering it? Still in place is her order that Bovino wear a body camera. And the government has to turn over all reports documenting when agents used force against members of the public and also the body camera video by tomorrow. So correct. All of the sort of what I would call transparency requirements and the use of force are all still in effect. And we will wait and see what both the Seventh Circuit says in principle at the end of this and maybe what the Supreme Court says. And if that is held to be in effect, then that could be something that could actually apply to all of the ICE agents nationwide, is that they have to have this sort of use of force transparency that didn't exist previously.

25:49And they'll have to wear body cameras. They'll have to identify themselves. They can't wear masks. And that would be a dramatic change from the operating events in a lot of places right now. They all wear masks except for Bovino. He doesn't wear a mask. He seems to be very confident in this position. There's no doubt about that. Apparently, the Trump administration really likes him. Is there a shakeup then? Is the Trump administration trying to rely more on the Border Patrol, which, you know, a lot of these aggressive actions that we see are border patrol, not ICE. Correct. That's what's exactly happening is the way ICE operates.

26:31Yes, they're headquartered in D.C. Yes, they're part of Homeland Security. Yes, they're part of the federal government and controlled by the president. But they have all these local field offices. And in the end, each local field office basically operates as its own satellite that has its own policies. And so it matters if you have a field office director who is much more oriented toward a aggressive enforcement posture, you're going to have more aggressive enforcement in that field office area than if you have a field office director who's not focused as much on an aggressive enforcement posture.

27:06And so in about six or seven cities, the administration has decided to replace the field office directors that were there from ICE and move them to D.C. and replace them with people who are coming from the Border Patrol to, again, have this sort of focus on roving enforcement that we were talking about earlier, where instead of looking for a set number of people each day that ICE had determined based on investigations the previous day or the previous week, it would actually say, no, we're going to go to a more aggressive posture and start questioning people on the streets about whether they have a right to be in the United States.

27:45I haven't heard the answer yet, but the governor of Illinois asked ICE not to do any enforcement actions on Halloween weekend. I think that's the type of thing where the way that usually gets resolved is there isn't an answer given that capitulates to the governor's request, but it's just obviously done in a way where ICE knows that they don't want another conflagration happening during Halloween where they detain somebody who shouldn't have been detained. And now everybody's in that sort of Halloween frantic mode and riots start happening and all kinds of craziness occurs. And so I do think you're not going to see an answer that says, okay, Governor Pritzker, we agree with you.

28:32We're not going to enforce the law on Halloween. All of these enforcement officers, everybody has to remember, are human beings. Well, don't you think that Bovino, I mean, the point is and why the Trump administration likes him is to put fear into the hearts of immigrants so that they self-deport. I mean, the videos are pretty brutal. Well, the point is this. At the end of the day, putting aside, again, any personal opinions anybody has, whoever leads the operation still relies upon people who live in those communities, who work in those communities. And an inertia gets created in all of this, despite what people think, where that inertia only allows certain amounts of limitations of conduct to occur.

29:22And that's why you've seen the administration get frustrated and they say, look, we were at we wanted 3000 arrests a day. We were at 2000. We thought we were going to get there. Now we're back at 1000. What is happening? What's going on? And all of this ignores that all of this enforcement needs to be done by human beings who have morale issues, who, by the way, aren't getting paid right now because the government is shut down and are worried about are they going to be able to keep their house? Are they going to be able to make their car payments? Are they going to be able to pay their medical bills?