Title: Legal News Roundup: Trump and the California National Guard and More

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Brian Lehrer: Brian Lehrer on WNYC. There was legal news over the last day about the extent to which Trump can wield executive power beyond what other presidents have done. Yesterday, one federal court gave the Trump administration a win on their immigration policy, and another blocked the administration's moves in another area. In the win for the Trump administration, a federal appeals court cleared the way for Trump to keep using the National Guard to respond to immigration protests in Los Angeles.

The court declared that a judge in San Francisco aired last week when he ordered Trump to return control of the troops to California Governor Gavin Newsom. The protests have calmed down, according to LA Mayor Karen Bass. Trump responded by saying he'll send troops wherever protests erupt, but yesterday also brought a judicial loss for Trump. A federal judge blocked the Trump administration from holding federal funds hostage from 20 Democratic-led states in order to coerce them into adhering to Trump's hardline immigration agenda.

Joining us now to break down all the latest is Emily Bazelon, staff writer for the New York Times Magazine, co-host of Slate's Political Gabfest podcast, Truman Capote Fellow for Creative Writing and Law at Yale Law School, and the author of books, including Charged: The New Movement to Transform American Prosecution and End Mass Incarceration. Emily, always good to have you. Welcome back to WNYC.

Emily Bazelon: Thank you, Brian.

Brian Lehrer: First, this was a Supreme Court decision day, but it doesn't look like they issued any decisions on the big ones that people are waiting for. Is that your perception?

Emily Bazelon: That is my perception, yes. We could either talk about the things they have decided or go forward into what's remaining on the docket.

Brian Lehrer: All right. What's remaining on the docket that you're waiting breathlessly for?

Emily Bazelon: I think the one I'm the most curious about is about birthright citizenship, although the court is very unlikely to directly rule on Trump's executive order that purports to end birthright citizenship. Instead, what this case is about at the moment is the power of district court judges across the country to issue what are called nationwide injunctions. We've had this system for a long time, in which a plaintiff can come to one judge in one courtroom and ask them to stop a law from going into effect or block an order from the president.

The question is whether district courts should be able to maintain this widespread power. One way to think about the different sides of this is that do you want a system where a law goes into effect and if it's illegal, then that gets sorted out a couple of years later after a lot of litigation, and then the president or Congress gets to have its will in place in the meantime, or do you think that judges should be able to block a law if they think it's illegal at the start, and then you pause it from going into effect while you figure out in the longer term whether the courts are going to decide that it can go into effect or not?

Brian Lehrer: Moving on to the latest from California that I mentioned in the intro. We covered this a bit on Wednesday's show, but yesterday brought this new development. Two weeks ago, Trump federalized and deployed roughly 4,000 National Guard and 700 US Marines. As everybody knows by now, the National Guard is usually under the command of governors. He said the Guard was needed to both protect federal property and ICE proceedings. A lower court then said Trump was using the Guard illegally. Now, a federal appeals court has backed Trump's control of the California National Guard for the time being.

It seems to be for a specific reason that the Trump administration argued. Have you been following it at that level?

Emily Bazelon: Yes, absolutely. The issue here, I would argue, let's set aside the question of whether this was a good idea to order in the National Guard, which people have really strong feelings about. This is a very sweeping kind of power that the president took for himself. We haven't seen the president try to federalize and bring in the National Guard without a governor asking, maybe ever. Then there's this question of whether it's legal or not. I think the issue here is that these are very broad laws that Congress wrote, in most instances, a long time ago, giving the President a lot of power.

I think that's what you see here from this California appeals court. They're saying, "Look, we're reading this statute, and it's just written in a way that suggests that we really have to show a lot of deference to the president." That is setting aside whether this was a prudent decision.

Brian Lehrer: The court ruling siding with Trump noted incidents of violence in order to support their case. They cited Molotov cocktails and "mortar-style fireworks," and how one Customs and Border Patrol agent suffered a shattered wrist. The federal ruling stopped short of calling this a rebellion. That word seems key in the back and forth here because of the law that Trump was trying to invoke in his public statements, but I don't think they argued it in court. Do you have any insight as to that distinction and why that matters here?

Emily Bazelon: It matters because this big claim that this is a rebellion or even an insurrection, as some of Trump's deputies have said, makes it sound like things are really out of control. There is another law, the Insurrection Act, that uses words like that as the rationale for letting the president deploy troops on American soil. That's there in the background. The thing is that these statutes also have lesser reasons that the president can invoke for bringing in the National Guard. That's what the judges were relying on here.

They were saying that these violent actions of some of the protesters were obstructing immigration enforcement, and that that's good enough. That's enough reason for the judiciary to defer to Trump on invoking the statute and calling in the National Guard. That's the legal rationale here.

Brian Lehrer: One other thing about the LA situation, and we're seeing it all over the country, actually, we even saw it in the detention for the moment of Brad Lander, the New York City Comptroller, the other day. The legality of ICE agents wearing masks. Now, there's this movement to stop protesters from wearing masks so that they can be caught if they commit acts of violence, or they can be called out by name if they engage in anti-Semitic speech or anti-Jewish tropes, but ICE agents, public officials, are doing exactly, as they commit controversial acts, what many say members of the public shouldn't be allowed to do. Is there any law that would govern ICE agents wearing masks either for it or against it?

Emily Bazelon: There doesn't seem to be, given how prevalent this is. I think there's this question of whether this is a good idea and the risks that it poses. Once you start entering into a world in which people don't have to identify themselves, they're not necessarily wearing badges, right? They don't identify themselves in a way that makes it clear even what part of the federal government they're from. That can start making people doubt whether people who purport to be federal agents really are those people, right?

I think this is in a special risk right now in the wake of these terrible assassinations in Minnesota, in which the person who murdered a couple of state legislators showed up at their door pretending to be law enforcement. There's just mixing up happening that really disturbs a lot of the presumptions we normally have about who law enforcement is, whether they're trustworthy, whether when someone says they're the cops or says they're ICE, we know that that's true.

Brian Lehrer: Meanwhile, also yesterday, a federal judge in Rhode Island blocked the Trump administration from tying states' transportation funding to immigration enforcement. To back up a bit on this one, a group of Democratic state attorneys general filed a lawsuit arguing the administration was seeking to "unlawfully hold federal funds hostage to coerce them into adhering to Trump's hardline immigration agenda," according to NPR. I think he's doing that with universities, too, but that's another show. Can you break down some of the broad strokes of this legal battle?

Emily Bazelon: This is about basically how much power the president has to put the squeeze on states. The president wants the states to help more with immigration enforcement, but they're not pulling the funds from the states related to immigration enforcement. They're pulling these funds from transportation grants, a whole different pot of money. There are limits on what the executive branch can do to threaten states. States are their own organs of government in the American system, and that's why we have federalism.

While it's not a clean line exactly, once the federal government is basically trying to coerce the states by threatening them with withholding funds, then the states start to be able to stick up for themselves. That's why you see a court ruling like this on the side of the states.

Brian Lehrer: It could sound like a random battle. Why does the Transportation Secretary, Sean Duffy, have the power to withhold federal funding over an immigration-related issue that has nothing to do with transportation? I guess that's how the Rhode Island court saw it, if you take that rhetorical question as skepticism. It calls to mind the National Minimum Drinking Age Act of 1984, of all things I read, that forced states to raise the drinking age to 21. Is that a reference that you're familiar with?

Emily Bazelon: I sure am, yes. That's an important case in this area because of what was happening in that case, right? You can see the parallel. The federal government said, "Hey, if you want this money, you have to raise the drinking age to 21." Some of the states protested and tried to keep their drinking age lower. In that instance, the court said the federal government was within its rights. Now, that is a case in which the money for the highway funding was, one could argue, more directly related, because the concern of the federal government was drunk driving, and so there was more of a relationship here.

This issue comes up over and over again. It came up in some of the Obamacare litigation. It goes back and forth whether the states or the federal government wins these cases.

Brian Lehrer: Let's take a call on the LA situation and that court ruling from Joan in Manhattan. Joan, you're on WNYC with Emily Bazelon from the New York Times and Slate and Yale Law School.

Joan: Oh, hi. Yes, Ms. Bazelon, I'm wondering about the Posse Comitatus Law. What exactly does it say? I thought it said that it was totally illegal to ever use military troops within the confines of the United States. I know the National Guard technically are not military, are they? I do remember, in my lifetime, the National Guard used, I think, twice. Once by President Eisenhower to integrate Little Rock, Arkansas, elementary school, and once by President Kennedy to integrate the university. I don't remember whether it was Alabama or Mississippi.

They did arrest the governor. He was standing in the way. The National Guard, having been nationalized by President Kennedy, arrested the governor to get him out of the way so the students could register. How does that all add up? Does it?

Emily Bazelon: No, those are great questions. The Posse Comitatus Act comes from 1878. You're right that it generally forbids the use of federal armed forces for civilian law enforcement, but there are a bunch of exceptions, I hate to tell you. The National Guard is in a separate category here. We're really talking about military troops. Even with regard to military troops, it seems as if, or at least various presidents have claimed for a long time that they have the inherent power to use military force to protect federal functions, despite the Posse Comitatus Act.

Potentially, here, you have a conflict between Posse Comitatus, which limits the use of federal troops on domestic soil, and then things like the Insurrection Act or the statute we were just talking about that appears to create basically a big loophole in those laws. So far, what we've seen is Trump talking about the power to defend federal property and for federal personnel, and to do immigration enforcement. It's possible that he could go beyond that in some way that the courts would decide to limit based on the Posse Comitatus Act, but we just haven't seen that challenge yet, so it's a little hard to know how these things exactly like where the Venn diagram is in terms of which law wins out.

Brian Lehrer: Joan, thank you for your call. Interesting question. On the Sean Duffy thing, withholding transportation funds from areas that aren't cooperating with immigration enforcement. We even heard Sean Duffy say they're going to distribute transportation funds on the basis of areas that have the most childbirth and marriage rates. Had you seen that one?

Emily Bazelon: Yes, I did see them say that. This is tied up, I think, with the larger question about how you distribute federal money. It relates to these questions about counting people and populations and what you're rewarding states for. This came up in the last census, and it probably will again in 2030, whether people who are not citizens count in terms of distributing federal funds to particular areas or in terms of representation in Congress. If you have a city that has a lot of undocumented immigrants and you think that's bad, you can try to take away money from them by shifting the way you're distributing wealth and political representation.

Brian Lehrer: I guess, because that ruling from yesterday, I think only applies to Rhode Island or the immediate region, it brings us back to the question you cited earlier as we await the birthright citizenship-related ruling, can federal district courts make rulings that apply to the whole country or only to that area, so we might wind up with people who, via birthright citizenship, are citizens of the United States in one state but not in another? That's going to be huge. Awaiting that one, and we have 15 seconds, right?

Emily Bazelon: Yes. That is going to be a big question going forward. Just what you said showed how, in at least some contexts, it would be truly dysfunctional to not have one national set of principles or rules that we're following.

Brian Lehrer: Emily Bazelon, staff writer for the New York Times Magazine, co-host of Slate's Political Gabfest podcast, Truman Capote Fellow for Creative Writing and Law at Yale Law School, and author of Charged: The New Movement to Transform American Prosecution and End Mass Incarceration. Sorry we had a Supreme Court dud on the day you were scheduled, but thanks for a good conversation anyway.

Emily Bazelon: My pleasure. Thanks for having me.

Brian Lehrer: Have a great weekend, everyone, and stay tuned for All Of It.

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