Weekend Law: Google, Wartime Act & Chicago Bracing

June Grasso talks to legal experts about the top law stories of the week.

See omnystudio.com/listener for privacy information.

Episode Transcript

Speaker 1 (00:02):
This is Bloomberg Law with June Grossel from Bloomberg Radio.

Speaker 2 (00:09):
In the biggest tech antitrust case in three decades, Google
avoided a breakup. A DC federal judge ruled against the
government's most severe proposals for remedies, like a forced sale
of its Chrome browser. Judge Ahme Meta had already found
in August of last year that Google illegally dominated the

(00:32):
search market by paying more than twenty five billion dollars
to Apple and other companies to make its search engine
the default on smartphones and web browsers. This ruling was
all about the fix, and Google will have to make
some concessions, including sharing online search data with rivals and
ending exclusive contracts for distribution. My guest is anti trust

(00:56):
expert Harry First, a professor at NYU lost Harry on
the Department of Justice website. It says Department of Justice
wins significant remedies against Google, but this falls far short
of the severe remedies that the government wanted. How much
of a setback is it for the government in its

(01:18):
attempt to curb the power of the biggest tech companies.

Speaker 3 (01:22):
Well, you know, people often talk about things as being
a win win and that's a good thing. So I
think that the judge's decision is a win win, but
not a good thing. I view it as win in
sort of eight point type on the government side and
win in sort of sixteen point type on Google side.

(01:45):
So here's what I mean. It's not a significant victory
for the Justice Department. They did win some things, and
you know, maybe that will help bring some competition into search.
But I think Google won a lot by not lose
using very much. They get to keep Chrome. A lot
of the remedies that the department asked for and got

(02:07):
even were cut down, circumscribed, diminished. And you know, whether
what the judge did will end up changing the search business,
I doubt but who knows. But we've now passed the
point where the question will be will we get competition?

(02:27):
And the question will just be is Google complying with
the decree. Of course, all of that comes after a
round of appeals, so there's much more to this, But
in terms of, you know, the overall feeling, I think it's,
you know, from a public point of view, a disappointment.

Speaker 2 (02:46):
So the big headline was zoeas will Google be forced
to sell Chrome? So Google doesn't have to do that.
Why did Judge Meta decide not to make Google divest Chrome.

Speaker 4 (02:59):
So this is a.

Speaker 3 (03:00):
Point that pervades Judge Meta's decision rightly in a legal sense,
but I think not so correct from a policy point
of view and really where the law ought to be.
So this is in many ways a very conservative opinion.
It's the judge expressing what judges often express is that

(03:20):
they understand the limits of who they are, what the
institution can do, and what they want to do on
an ongoing basis. So they're conservative about this. And here
the government plaintiffs are asking them to do some pretty
strong restructuring of one of the superstar firms in the

(03:42):
United States. So you've got to be a little modest.

Speaker 4 (03:46):
Now.

Speaker 3 (03:47):
The judge backs up his modesty with a lot of
quotations from the Court of Appeals and recently from the
Supreme Court in a different anti trust case opinion written
by Justice Gorsuch, which councils, let's be careful a little bit.
So the ass that Chrome be divested. Structural relief is

(04:08):
something that the DC Circuit itself. Remember, Judge Meta is
a district court judge overseen by a Court of Appeals
from the DC Circuit, so he is required to follow
the law from that circuit. The law from that circuit
on remedies is actually pretty conservative and cautious, and that

(04:30):
stems from actually the Microsoft case, which is much the
template for the complaints that the government filed and for
the government's theories. So you know, they said, well, when
it comes to structural relief, restructuring reorganizing a company, you
really need some strong proof before you do that. You
need to watch out. And so he took those admonitions

(04:52):
to heart and just didn't find enough to overcome that
sort of a presumption that you know, you don't do
this unless you really have to do it for effective relief.
And this then goes to the second part. Maybe the
government didn't make an effective enough case for divesting Chrome

(05:12):
and maybe made it seem too easy, so stuck with
all of that, he backed away from it.

Speaker 2 (05:19):
How much did AI play into Judgmenta's decision, So I.

Speaker 3 (05:25):
Think his decision is all about AI, frankly, and I
think that he's betting and many in the industry by
just simply betting that AI is going to replace Search
as we know it with something else that's not search
as we know it, or maybe as you and I
know it, but just simply getting information and that Google Search,

(05:48):
that product, no matter what he does in this opinion,
is going to be eclipsed by some AI product. And
I think that he've views generates of AI as coming
to the rescue of competition.

Speaker 2 (06:03):
Some say it's already eroding Google's dominance in search.

Speaker 3 (06:08):
Yeah, the data seemed to show he he mentions this
in his opinion that searches on Safari have decreased. People
seem to be going directly to you know, Chat, GPT
or Perplexity or some of these other AI assistant things
and just getting information that way. This is the destructive

(06:29):
force of innovation, as the economist Joseph Schumpeter talked about
many years ago. So maybe he's right, and you know,
that may mean that sort of didn't matter what he
did so long as AI lives. But of course the
worry is that we'll just replicate the current structure the
tech platform, superstar firms will just control AI and we

(06:54):
won't have moved to new competition, but we'll have a
different product.

Speaker 1 (06:59):
He's ordering Goo.

Speaker 2 (07:00):
Google to share data with rivals to open up competition
in online search. Google has to share some of the
data with competitors, but not some of its most important data.

Speaker 3 (07:11):
Would you say, well, here again, it's hard to say
exactly what our important data. You could say all of
the data are important, the more the more. But you know,
this particularly involves the search index, which is something that
Google has done really well, and the government in some
ways didn't ask for as much as it could, which

(07:33):
it would have been a license to the index itself.
What they wanted is some help with the data so
competitors could build an index. And even with that, the
judge cut down the kinds of data that will be
required to be disclosed, and to me, even more importantly,
the timing of the disclosure. So for some of these

(07:56):
data it's a one time snapshot, which strikes me as
you know, the judge calls that a kickstart for competition. Yeah,
like a kick in the rear. I don't know, you know,
a one time thing for some very important parts of
some basic information to help them put together a better
index of the web. There's an awful lot of information

(08:17):
out there and indexing it is critical for an effective
search engine. And you know, when it comes to sort
of this user side data to click and query. You know,
what we do when we get free search is create
data that's worth a heck of a lot of money
for which we don't get paid, we being you and

(08:38):
me and all the other users. But these data here. Again,
the judge cuts down the request, gives some amount of
the request, and then sort of puts on some limits
yet to be decided about how often this will be
disclosed more than once. Now it's not just a snapshot,

(09:00):
but the cap yet to be determined by this technical
committee that the decree is going to set up. So
I don't know, it's hard for me to say exactly,
you know, will this enable competitors to really get an
effective competing search engine or will it not quite be enough?
And in some ways this goes to what I've always

(09:20):
viewed as the underlying problem with these decrees is a
judge trying to say what competitors need to succeed, instead
of a judge saying, don't ask me, just come back,
you know, Google, Just come back and let me know
whether there's competition or not. And if there isn't, we're
going to have to do something more about it, you know,

(09:41):
for judges or even the Justice Department which apparently at
least is still made up of some lawyers. You know,
trying to design these remedies is tough, and you can
feel it with what the judge is written in this opinion.
It's hard and trying to figure out what the effect
is going to be. He said at the beginning. You know,
I don't have a crystal ball. Other judges have used

(10:04):
that worry as well when being asked to predict effects
in future markets.

Speaker 2 (10:09):
Google has previously said it's going to appeal. Do you
think Judge Meta's decision is conservative enough to survive at
least at the DC appellate court stage.

Speaker 3 (10:22):
So he did a lot to try to survive review
by the Court of Appeals. I mean, he relied quite
heavily on key decisions, particularly the Microsoft remedy decisions. And
he also, oh, by the way, bolstered one of the
potential weaknesses in the liability decision while he was at it.

(10:43):
So I think it's not perfectly bulletproof the aspect of
letting AI companies share in some of these data. If
I were Google, I would be hitting on that whether
that was you know, not warranted given as he started
out by saying, there was nothing at the trial about
AI and there are ways of casting what he did

(11:05):
as maybe not within the bounds of what the goal
was in the trial. So there's some potential issue there.
And you know, I mean it could be more conservative.
I guess he could have just given Google what Google wanted.
But it's a carefully drawn opinion, and you know, time
after time he sort of knocks the government plaintiffs back

(11:27):
a bit by saying, you know, you've overreached, you're asking
for too much. You know we need to be modest, etc. Etc.

Speaker 2 (11:33):
And later this month Google is schedule to go on
trial to determine remedies in another case where a judge
has found the company holds illegal monopolies in online advertising tech.
So more to come, Thanks so much, Harry. That's Professor
Harry First of NYU Law School. Coming up next. Trump
can't use a wartime act to deport alleged gang members.

(11:56):
I'm June Grosso. When you're listening to Bloomberg.

Speaker 1 (12:03):
This is Bloomberg Law with June grosseo from Bloomberg Radio.

Speaker 5 (12:08):
Venezuela has been a very bad actor. They've been, as
you know, they've been sending millions of people into our country.
Many of them Trend de Aragua, some of the worst gang,
some of the worst people anywhere in the world.

Speaker 2 (12:22):
President Trump used an eighteenth century wartime law to try
to quickly deport alleged members of a violent Venezuelan gang
in March, arguing that the Trend de Aragua gang had
been sent to the US by Venezuela as president to
destabilize the country. For the first time, a federal appeals

(12:42):
court weighed in this week, blocking the administration from using
the Alien Enemies Act of seventeen ninety eight to deport
the men. The Fifth Circuit found that quote a country's
encouraging its residents and citizens to enter this country illegally
is not the modern day equivalent of sending an armed

(13:03):
organized force to occupy, to disrupt, or to otherwise harm.
The United States borders are. Tom Holman had admitted that
the wartime law was being used for swift deportations that
avoided due process.

Speaker 5 (13:17):
I'm not arguing right here that nobody should get due process.
I'm just saying there's a different process on the.

Speaker 2 (13:22):
Alien Enemies Act unless of a process, and you see
to Title eight.

Speaker 1 (13:26):
DC.

Speaker 2 (13:26):
Appellate Judge Patricia Millett criticized the government for not giving
the Venezuelans any opportunity to challenge their removals.

Speaker 6 (13:35):
There were planeloads of people, there were no procedures in
place to notify people. Nazi's got better treatment under the
Alien Enemy Act and has happened here.

Speaker 2 (13:46):
The two to one decision from the New Orleans Court
will most likely end up back at the Supreme Court.
My guest is immigration law expert Leon Fresco, a partner
at Hollanda Knight le On. This case has been going
on almost sick so it has been up to the
Supreme Court twice already catch us up.

Speaker 4 (14:05):
This is a case involving President Trump's proclamation in March
of twenty twenty five that the Venezuelan gang Trend de
Arragua was a dangerous invading force into the United States
such that its members should be deported under the Alien
Enemies Act, which permits deportation without due process. Essentially, the

(14:25):
government can just apprehend anyone it says is in the
Alien Enemies Act group, which in this case is Trend
the Arragua, and deport them. And people are being deported
to El Savador, to the Sea Coats Prison. Now There
was two iterations of this case. The first one started
in DC where just Bozberg had said that the government
couldn't do this, and there was the debate about the

(14:46):
flights and the debate about whether there should be contempt.
But nevertheless, the Supreme Court comes in and says, no, no, no,
all of that was wrong. None of that should have
been filed in DC. These kinds of cases should be
filed as abias cases. Now. Mind you, there was a
decision a couple of years ago where just as Alito
had said no more habeas for immigration. But nevertheless, I

(15:08):
think that these facts on the ground concerned the Supreme
Court so much they said, well, you've got to be
able to file something, so fine, we're back to habeas again.
So you've got to file them as habeas cases. And
the habeas cases have to be in the locations where
people were being detained. Well where were people being detained.
They were being detained all over Texas. So there were

(15:29):
district court decisions all over Texas. But now finally the
main case reaches the Fifth Circuit and the Fifth Circuit
grants the preliminary injunction preventing the removal of the petitioners
who were the Venezuelan nationals that the Trump administration wanted
to deport under the Alien Enemies Act.

Speaker 2 (15:48):
Federal judges in Colorado, New York, and Texas have ruled
that Trump improperly invoked that act. How did the Fifth
Circuit come to that same conclusion?

Speaker 4 (15:58):
The Fifth Circuit, in a two to one decision, said
that at the end of the day, the Alien Enemies
Act doesn't justify their removals because there isn't a declared
war and that the actions of this trend that Aragua
gang do not constitute an invasion or a predatory incursion
by a foreign nation or a government, which requires, in

(16:19):
their view, military like actions directed by a foreign power.
They're saying, this is more of sort of a gang
or criminal type of thing, but it isn't actually a
military incursion. They don't even get into anything about whether
these individuals specifically are members of trend the Aragua or

(16:39):
anything like that. They just say that this invocation of
the Alien Enemies Act is unlawful and so it cannot
be used to create deportation without due process. Now, they
did say, if the Trump administration wants to deport these people,
they can deport them under any other grounds that's permissible.

Speaker 2 (16:56):
The borders are Tom Holman and others in the administration
and kept saying that the Venezuelans were terrorists. Was that
part of their legal argument?

Speaker 4 (17:05):
Well, first of all, you're correct. There's a very concerted effort,
even in this bombing that occurred this week with the
Venezuelan drug lords on the boat, that everybody calling them
in the administration terrorists, to try to link that with
some sort of military like action directed by a foreign power,

(17:26):
to get it as close as possible to the Alien
Enemies Act. But what this court is saying is that's
not really what these people are. These people are not
being instructed by the Venezuelan government to come to the
United States and commit war acts against the United States.
These are just individual criminals trying to profit off of

(17:46):
drug and gang activities. They're not soldiers or quasi soldiers
acting on behalf of the Venezuelan government.

Speaker 2 (17:53):
This is a Fifth Circuit decision, the most conservative appellate
court in the country, George W. Bush appointing Biden appointee
in the majority and in descent a Trump appointee. What
did the dissent argue.

Speaker 4 (18:07):
Well, the dissenting judge who used to be the Solicitor
General of the State of Texas, a very well known,
strong conservative judge, Judge Oldham. He basically argued that the
Alien Enemies Act is something that is so broad in
terms of the congressional authority that the courts really don't
have a role in reviewing a presidential determination under the

(18:32):
Alien Enemies Act. Basically, what he was saying is that
the courts should not second guess when the president says
there's a war, because this can lead to very dangerous circumstances,
and that you know, you have the president who has
all of this sort of expertise in the sense that
they have the Defense Department and the CIA and the

(18:52):
Department of Homeland Security and the NSA to do all
of this work and consultation, and they make a determination
that there is a dangerous environment akin to the environment
that's required under the Alien Enemies Act. For the courts
who are just judges sitting there in you know, Louisiana
or Texas or wherever they're sitting that don't have all

(19:16):
of this access to be able to come in and say, well,
we don't actually think this rises to the kind of
war level threat that is required under the Alien Enemies Act.
Keeps saying that is incredibly dangerous because what is the
limiting principle there? Now the judges can decide what is
a war, what is in a war, and that's not

(19:36):
what Congress had intended here. The problem with that is,
at the end of the day, if you really have
no limiting principle on the Alien Enemies Act at all,
including whether it can be invoked and who it can
be invoked again, then at that point, I mean, there
really would be no way for either you or I
or any of your listeners to go into court if

(19:59):
we were mistaken Lee apprehended by Ice. Ice could say,
you know, Leon or June, you're members of this trend,
that Ragua gang, and we're sending you te El Salvador.
And you could say, yeah, but I've never visited Venezuela,
and I don't even know any Venezuelans and I'm not
a member of a gang. I toast the bloomberg. So
and it won't matter because there's no court to bring
it to. And so I don't think anyone will be

(20:23):
fully comfortable with that kind of decision. And I don't
think the Supreme Court was comfortable with that, which is
why they didn't issue that decision. And moving forward, I
don't think they're gonna get there in terms of to
just not have any due process determination as to these decisions.

Speaker 2 (20:41):
Yeah, Colorado judge called that argument nonsense.

Speaker 4 (20:45):
It's a difficult argument to make. I mean, look, it
all depends where you're approaching this from. If you're approaching
this from a belief system that everybody in the world
acts in good faith, then you could conceivably understand you'd say, well,
why would a president ever want to do something like
this put someone in a detention if it wasn't absolutely necessary.

(21:09):
But if you were to approach it from the perspective
that sometimes people don't act in good faith or sometimes
people make a mistake, then maybe you do need some
due process in that system, because otherwise, what is checking
those kinds of abuses from occurring.

Speaker 2 (21:23):
The ruling could be appealed to the full Fifth Circuit
or could be appealed directly to the Supreme Court. Is
there any reason to bother going for and on bank
hearing at the Fifth Circuit when the case is just
going to end up at the Supreme Court.

Speaker 4 (21:38):
Anyway, you know, right now, the government doesn't have the
strongest hand, and maybe you know, the government wins in
the Fifth Circuit fully, and so then it would be
the onus then on the foreign nationals to actually then
appeal to the Supreme Court. So from that perspective, they
may want to strengthen their hand. But honestly, if the

(21:59):
trumpet is trying to really say, hey, these are the
most dangerous people in the world and we need to
get them out as soon as possible, asking for Unbank
review of the Fifth Circuit doesn't seem to make a
lot of sense, because why are you delaying getting to
the ultimate outcome here. So I don't think from a
political perspective it makes a lot of sense to go

(22:20):
for Unbank review. It may make sense strengthening the argument
in a typical case because you might win in the
en Bank. But at the end of the day, if
what you're trying to say is, look, we need to
final answer, we need to get these theorists out of
the country as soon as possible, I think you would
want the Supreme Court to look at this as soon
as possible.

Speaker 2 (22:39):
So the Supreme Court never answered the question of whether
Trump's use of the Alien Enemies Act is valid. Do
you have any inkling from the way they ruled twice before.

Speaker 4 (22:51):
Well, I think that at the end of the day,
there won't be five justices that say that you can't
review this general concept of whether it was proper to
have an Alien Enemies Act determination. Now, they may give
some very strong difference to the administration. In fact, I
would be shocked if they didn't give strong difference to

(23:13):
the administration. But they may say, look, even with very
strong difference, this isn't the kind of case that gets it.
I mean that issue is going to be closed. I
don't think there will be any justice that says that
an individual person can't come forward and make a claim
that look, you may claim there's a problem, but I'm
not a member of the problem group. I think those

(23:34):
people will nine nothing be able to get due process,
in habeas or in some other way to be able
to make that argument. That's the second thing. And then
the third thing. The court said that seven days is
enough to make these claims, so that the government, if
they designate you as part of the problem group, you
have seven days to file a lawsuit or you can

(23:55):
be deported and the dissenting judged there, Judge Ramirez said, no,
you need twenty one days at least. And you know
this is everybody just making this up out of old clause.
But the question is, you know, if you don't speak English,
you don't have access to a lawyer, what is a
reasonable amount of time to give you to file a
federal Habeast complaint in the court. That's not the easiest

(24:16):
thing for someone to do. Imagine you know, you or
I going to China right now and trying to file
a court document there when we don't speak Chinese, we
don't know anything about the law, We don't know anything.
You know, what would be a reasonable amount of time
to give a person in that situation? And so that's
the question here, and you know the Supreme Court's going
to have to grapple with that too.

Speaker 2 (24:37):
We'll see if the administration appeals this directly to the
Supreme Court. Thanks so much, Leon. That's Leon Fresco of
Hollanden Night. Coming up next, a judge rules the National
Guard deployment to La broke the law. I'm June Grosso
and you're listening to Bloomberg.

Speaker 5 (24:54):
If I didn't send the National Guard into Los Angeles.

Speaker 1 (24:57):
You wouldn't.

Speaker 5 (24:57):
I would be making an announcement to that be talking
about Huntsville, and I'd simultaneously be saying, by the way,
the Olympics is not coming to Los Angeles.

Speaker 2 (25:07):
But a federal judge ruled on Tuesday that President Trump's
deployment of National Guard troops and US Marines to carry
out law enforcement activities in Los Angeles this summer was illegal.
In a scathing decision, Judge Charles Bryer noted that Trump
has made threats to deploy the Guard and troops in

(25:28):
other cities, which would create a national police force with
the President as its chief.

Speaker 5 (25:34):
I could do that with Chicago, We could do that
with New York. We could do it with Los Angeles.
So we're making a determination, now do we go to Chicago.

Speaker 7 (25:44):
I find this extraordinarily strange, as Chicago does not want
troops on our streets.

Speaker 2 (25:49):
Illinois Governor JB. Pritzker has said he'll challenge in court
any deployment of troops to Chicago, where a violent crime
is down twenty three percent over last year, and Mayor
Brandon Johnson has issued an executive order outlining the city's
plans to resist any deployment of troops.

Speaker 7 (26:08):
The sweeping executive order directs our Department of Law to
pursue any and every legal mechanism to hold this administration
accountable for violating the rights of chicagoan's. This order affirms
that the Chicago Police Department will not collaborate with military
personnel on police patrols or civil immigration enforcement.

Speaker 5 (26:29):
Now we're going to do it anyway. We have the
right to do it because I have an obligation to
protect this country.

Speaker 2 (26:36):
It remains unclear what actions Trump may take in Chicago
and when. My guest is constitutional law expert Harold Krant,
a professor at the Chicago Kent College of Law, hal
is Judge Briar's decision a complete refutation of Trump's sending
troops into Los Angeles.

Speaker 8 (26:56):
It's a partial reputation. And indeed, just Buyer's order allows
the military to remain. What he has done is delineate
what they can and cannot do. And so this is
an effort by the judge. This steer clear of the
earlier Ninth Circuit decision which lifted Day on his earlier
preliminary injunction. So the court here is trying to be

(27:18):
careful in trying to say what the National Guard can
do and can't do.

Speaker 2 (27:24):
Judge Briar delayed his ruling until next week to give
the administration ten days to appeal, but it didn't take
them that long. They appealed the next day on Wednesday,
and the Ninth Circuit put this second order on hold
on Thursday to give it more time to rule on
the administration's request for an indefinite pause. So a fast

(27:47):
moving case now. Judge Briar did rule that the deployment
was a violation of the Posse Commatantis Act that bars
the military from engaging in domes law enforcement.

Speaker 8 (28:02):
He did, but he said that there were some duties
that the federalized National Guard could in fact undertake consistent
with the pass Comatatas Act. But he made a fatual
finding that the troops had done more than that they
had engaged in general law enforcement activity, which she said
was proscribed under the camatatas aac and tradition. So he

(28:24):
made a more narrow nuance finding when they had previously.
He didn't even question the ability of the president to
federalize the National Guard against the governor's wishes, but he
said even if the president can do that the National
Guard can't engage in general law enforcement activities, including covering
ice agents, including dispersing crowds and so forth.

Speaker 2 (28:49):
And just to clarify, Judge Bryer had previously ruled that
Trump had to return control of the National Guard to
the state, but that ruling was put on hold by
the Ninth Circuit, And this new ruling applies specifically to
the Possi Cooma Tatis Act.

Speaker 8 (29:05):
So he is trying to create a decision in my
mind here that is consistent with the broad principles he articulated,
previously limiting the president's abilities to nationalize the Federal Guard,
but then, realizing that the Ninth Circuit had overruled him
in part previously, then decided to add more granually that
even if the President could nationalize the National Guard, that

(29:29):
they could not engage in sort of typical law enforcement authorities.
But I think the consensus has been that the president
cannot nationalize the National Guard. You know, unless all typical
law enforcement has collapsed, you can't enforce court orders or
there's an insurrection, and obviously those two things are not

(29:51):
in place in Los Angeles. In my mind, though, this
is a sideshow because President Trump continually says that he
can federalize the National Guard and send them wherever he wants,
to include Chicago, just for ordinary criminal law enforcements. So
it's clear that there's a clash between the Court's view
of the limits of the president's authority under the Pasi

(30:12):
Coomatatis Act and what the President thinks he can do
and has continually espoused he can do in terms of
federalizing the troops at a moment's notice.

Speaker 2 (30:21):
And the judge said he was applying his injunction statewide
instead of just in Los Angeles, because Trump had demonstrated
a desire to violate the Passikama Tatis Act in other cities.
And Judge Briar cited this statement by Trump in an
August twenty seventh cabinet meeting where he discussed sending the

(30:43):
National Guard into Chicago.

Speaker 8 (30:46):
Have the right to do anything I want to do.

Speaker 5 (30:48):
I'm the President of the United States. If I think
our country is in danger, and it is in danger
in these cities, I can do it.

Speaker 2 (30:54):
Do you think Judge Briar went too far in his opinion.

Speaker 8 (30:58):
My only concern about the the Court's opinion is that
the Court seemed to be dismissing the president's sort of
inherent authority. As a statutory matter, I think the Court
is on strong ground, both historically and in terms of
textually of understanding the limits of the pass comatatous Act.
I think the Court was a little bit quick in

(31:18):
terms of dismissing the president sort of inherent authority under
the Commander and Chief clause of the Constitution. Clearly, presidents
have to make tough costs, tough cause in terms of
lias on the streets, tough cause in terms of potential
invasions and so forth. And so if the president said
we need to protect federal buildings, we need to protect

(31:40):
federal instrumentalities, might think that Article to itself might give
the president arguably does give it the president that kind
of authority to order troops to protect those even if
states say they don't need it. So that's not at
stake here, and President Trump's news conference clearly illustrates that
that's not at stake here. But I think that might
be a weakness in the Court's opinion, because I do

(32:04):
think that the chief executive has to make those tough
calls if there are threats in the president's mind to
federal instrumentalities within the states.

Speaker 2 (32:12):
With regard to Chicago, Trump's only stated justification for sending
troops in is to combat what he says is rampant crime.
The same goes for New York and Baltimore, despite the
data showing that crime has dropped in those cities, and
Chicago isn't even on the list of the ten most

(32:34):
dangerous cities in the country.

Speaker 8 (32:36):
Well, absolutely no justification for what the President said he's
going to do in Chicago, which is even more indefensible
than what he did in California. And I would expect
that the mayor of Chicago, Mayor Johnson, and the governor of Illinois,
Governor Pritsker, will immediately go to court not only cite
the most recent Judge Briar decision, but cite just more

(32:58):
convincingly that the President has acknowledged the purpose for why
he's sending in troops into Chicago, and that's absolutely prohibited
by the pussy com pat effect under any construction of
the terms of the statute.

Speaker 2 (33:11):
So Judge Briar's decision has no effect in Illinois, correct,
But is the reasoning strong enough to apply to Illinois?

Speaker 8 (33:22):
I think that reasoning will cover the same situation, and again,
Chicago is an easier case. And I think that to
the extent that the President would say that ICE agents
are under attack and that he is commander Chief can't
ensure an orderly function of immigration processes in this country
without calling in supportive troops. That would be the strongest

(33:43):
sort of justification that I can understand in the California
context for the use of either the federalized National Guard
or for the Marines. But he clearly in Chicago's built
is that I don't even need that justification. I can
send troops wherever I want, whenever I want, because I'm
the President of United States, And that downright is frightening.
Not only is it clearly outlawed by the Pussy Comatatas

(34:04):
Act and by the history that led to the act,
but it's a huge step towards autocracy.

Speaker 2 (34:09):
What if instead of sending in the National Guard or
the Marines, Trump just sent in lots and lots of
federal agents, the FBI, the DEA ICE. Would there be
any problem with that?

Speaker 8 (34:24):
Legally there may be pockets of restrictions, but if ordinarily
that would be within his power, and certainly he can
shift FBI agents over to Ice and his temporary details.
He has the power to do that under prior statute.
So in that respect he could accomplish at least some
of his goals. But again, he could not engage those

(34:45):
FBI agents in terms of taking over for general law
enforcement for Chicago because the FBI is not authorized. The
agents aren't authorized to deal with conventional robbery, theft, etc.
That are state crimes, not federal crimes.

Speaker 2 (35:00):
Judge Bryer also said that if the President wants to
avoid the restrictions of the Posse comma Tatis Act, he
could invoke a valid exception like the Insurrection Act quote
along with its requisite showing that state and local law
enforcement are unable or unwilling to act. Obviously, Trump did

(35:23):
not invoke the Insurrection Act when the capital was attacked
in twenty twenty one, but theoretically could he do it
in a city like Chicago.

Speaker 8 (35:32):
Well, when we had riots in the wake of the
sassination of Martin Luther King, when we had the unrest
because of the George Floyd murder, arguably local law enforcement
could not take the helm and preserve law and order,
and that is an exception of the putscun Titus Act,
and indeed, the courts would be in difficult position if

(35:54):
the president made a careful finding that that is why
he is sending troops, that there is no local law
enforcement that can take care of law enforcement activities. I
don't even know what the theory would be in Chicago,
but if he says that there is a insurrection because
undocumented workers are rising up in arms against the authority,

(36:15):
or he would say that some other kind of indirection
is taking place, then he could justifiably use federal troops.
He has not made that claim, and indeed, given the
fact that the clim has gone down into these like Washington,
DC in Chicago, it's simply far fetched. So, yes, presidents
have sent in troops, and President Trump could in the future,

(36:36):
respecting Congress, but not in these situations. Obviously, the Constitution
ascribes a principal role to Congress in deciding when to
introduce the military into civilian situations. Congress has done so
in the Potsakakamatitis Act as well as the limitations in
the Insurrection Act. And that's the role that the Constitution

(36:57):
gives to Congress. And Trump is just writing buckshot over
the constitutional structure.

Speaker 2 (37:03):
And with all the legal questions. We haven't discussed the cost.
California Governor Gavin Newsom says that it costs the taxpayers
one hundred and eighteen million dollars when Trump sent the
National Guard to Los Angeles. Something else to consider, Thanks
so much. How that's Professor Harold Krent of the Chicago
Kent College of Law. And that's it for this edition

(37:26):
of The Bloomberg Law Show. Remember you can always get
the latest legal news on our Bloomberg Law Podcast. You
can find them on Apple Podcasts, Spotify, and at www
dot Bloomberg dot com, slash podcast Slash Law, and remember
to tune into The Bloomberg Law Show every weeknight at
ten pm Wall Street Time. I'm June Grosso and you're

(37:47):
listening to Bloomberg