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Brian Lehrer: Brian Lehrer on WNYC. We'll check in now, as we've been doing all year, on the state of the legal battles over President Trump's campaign to take as much government power as he can for himself. The big picture of this, of course, goes beyond individual policy disputes to the essential question of whether he's trying to turn the US into less of a democracy and more of an authoritarian state.

There was, as you've been hearing, Trump's post over the weekend showing him as the Robert Duvall character from the movie Apocalypse Now, with Chicago in flames in the background, the words Chipocalypse Now, and the chilling language that Chicago is about to find out why they call it the Department of War. That was an actual post from the President of the United States. All that only adds to the concern that people like Illinois Democratic Governor J.B. Pritzker had already expressed last week.

Governor J.B. Pritzker: This is a part of his plan to do something really nefarious, which is to interfere with elections in 2026. He wants to have troops on the ground.

Brian Lehrer: We'll touch on democracy in the 2026 elections, which Pritzker raises there, and the possible Chicago deployment, like the ones in LA and DC, are wedge issues. Using means that might be authoritarianism to address concerns that are real and to possibly build support in enough of the electorate for that consolidation of power. Here's Trump yesterday on his fiery Chicago post.

President Trump: We're not going to war. We're going to clean up our cities. We're going to clean them up so they don't kill five people every weekend. That's not war. That's common sense.

Brian Lehrer: Now, that has definitely happened in other countries in recent years, the populist and electoral route to authoritarianism through issues that most of the people are on the side of the leader about. Remember, Trump said this just a couple of weeks ago. Listen to this.

President Trump: They say, "We don't need him. Freedom, freedom. He's a dictator. He's a dictator." A lot of people are saying, "Maybe we like a dictator." I don't like a dictator. I'm not a dictator. I'm a man with great common sense, and I'm a smart person.

Brian Lehrer: He said common sense again, like he did about Chicago, but notice the model he's invoking. A lot of people are saying, "Maybe we'd like a dictator." For this segment, let's see what democracy guardrails the courts are putting in place. We should say the legal system is not the only way in any democracy to prevent authoritarianism or or define the bounds of democratic norms, but it is one vital way. We should also say that there are many legitimate debates within the context of democracy about how much power each branch of government should have.

So far, the Supreme Court has often but not always allowed Trump to expand his authority, but last week was an especially bad week for Trump in the courts. Ready for the list on imposing and removing tariffs based on his whims, on funding cuts to Harvard, on his troop deployment to LA, Chicago, and maybe New York. Take note. Also, on ending temporary protected status the way they did for people who've been here legally from Venezuela and Haiti, and on using the Alien Enemies Act, which allows deportation without the normal due process during times of war.

A court said, "We are not at war, so the attempt to deport people under that act is illegal." That's a lot in a small period of time. Of course, none of these are likely final. Maybe all will go to the Supreme Court, where Trump tends to win, but let's get a take on the individual cases and the bigger picture now. My guest is Cristian Farias, legal journalist who writes for Vanity Fair, The New Yorker, and other publications, and is host of The Bully's Pulpit, a podcast from the Knight First Amendment Institute at Columbia University. Cristian, thanks for joining us. Welcome to WNYC today.

Cristian Farias: Brian Lehrer, this is my pleasure.

Brian Lehrer: Let me actually start with something from your newest article for Vanity Fair. It's Justice Amy Coney Barrett's take on the state of the Constitution at a Lincoln Center event related to a new book she's got out. She said she doesn't know what "a constitutional crisis" would look like. That is not the place that we are. Justice Barrett said, "It is plainly true that right now we're at a time of passionate disagreement in America, but we've been in times of passionate disagreement before." You say she pointed to other times during the 20th century when the nation has been bitterly divided. She used that phrase Great Depression, the civil rights movement, campus unrest during the Vietnam War.

To quote her again, she said, "And we have come out stronger for it." Do you want to describe that any further for our listeners as a reference point for where the Supreme Court is at, while critics of the president use words like authoritarian, fascist, and dictator?

Cristian Farias: It's very interesting because Amy Coney Barrett, she was in conversation with Bari Weiss. She is the editor and founder of this publication called The Free Press, which tends to take a contrarian view of what's happening in the world at the moment. They like to buck, as they say, conventional wisdom. The reality is that when she said that there was no pushback, there was no mention that right now the president is trying to erect a national police force in not just LA, which a judge, as you mentioned, declare illegal under federal law, but also what's next, New York City, perhaps Illinois, Chicago and other cities that are not acting in the way that perhaps the President would like.

There was no mention of the reality that right now the Supreme Court is sitting on a petition that hasn't been decided, deciding whether or not ICE can racially profile people just on the basis of where they gather to seek work like day laborers, or the fact that they engage in certain kinds of low wage employment, like working at car washes or perhaps in garment factories, or the reality that many immigrants speak Spanish and just because immigrants behave in certain ways or act in certain ways, that they may be subject to ICE arrest and potentially deportation.

The court hasn't decided. That issue is a very contentious issue. It involves deep questions about the Fourth Amendment and whether police can simply profile you on the basis of who you are. These are things dividing Americans right now. I don't know if they compare to what things were in the '50s or '60s, I wasn't around at the time, but the reality is that right now people are protesting these issues, and to just imagine that things are just fine or that the court is going about doing its work, not rubber-stamping the President's agenda, I think it's belied by the reality that we're in right now.

Brian Lehrer: Well, it was interesting that Trump tried to have it both ways in a 24-hour span on and of course, he's renaming the Defense Department the Department of War. We're going to talk more explicitly about that in another segment later in the show, but posting on the one hand, the people of Chicago are going to find out why we call it the Department of War, and then coming out and saying, "No, we're not going to war in Chicago. It's just common sense. We don't want five murders per weekend."

There were big protests in Chicago this weekend, and it was interesting to me what many of them focused on, which is if you are deploying the military, if you are deploying the National Guard to act as members or supporters of the Chicago police force, then they should be required to behave with the same standards. They shouldn't be able to wear masks and block their badges that identify themselves, and they should wear body cams so there would be a public record of the way they behaved, as well as the people they were policing behaved toward them. To me, that was very interesting if we're moving into this new phase where the military is going to be deployed to more US cities.

Cristian Farias: As also you noted earlier, there was a whole trial in LA over this precise issue, whether or not the military is even capable or trained to do run-of-the-mill law enforcement activities, whether they can conduct arrests, whether they can do searches and seizures. There's a very specific set of trainings that police must undergo to even do these things. Not that they do it perfectly. There's always litigation around these things, but it is for a reason that federal law, for a long time, has erected this barrier.

The military cannot and should not engage in law enforcement activities because we have long respected this military-civic divide, and the fact that this line is not being blurred to the point that these task forces are being created. There was a task force in LA, there's a task force in DC, and they're operating in concert. During the trial that I covered in the Northern District of California, that I wrote about, the people on the stand that were testifying couldn't even tell-- They were shown pictures. "Look, this is a picture of the task force of both law enforcement or ICE agents and the military."

These high-ranking government officials couldn't even tell who were the military and who were the police officers or the ICE agents or the CBP officers. The fact that even they couldn't distinguish them tells me, what are we doing here? Are we having a national police force after a long tradition of not having this? That's what the president is trying to do. That's what the judge there in California said, Judge Breyer, brother of former retired Justice Stephen Breyer.

Brian Lehrer: Oh, they're related. I didn't know that.

Cristian Farias: Yes, they are related. He's the younger brother. He said, "We cannot have a national police chief. We don't have a national police force. If there has to be a deployment, it has to be according to the law, and here the law was not respected."

Brian Lehrer: With Cristian Farias from the Knight First Amendment Center at Columbia University, and writes for Vanity Fair, The New Yorker. As a legal analyst, as we're talking about a string of losses in court for President Trump over the last week and the bigger picture of democracy or authoritarianism, where are we on that spectrum? Listeners, any comments or questions on any of this? 212-433-WNYC, 212-433-9692. Let's go down some of these specific cases from the last week or so. Cristian, I gave a list in the intro. We were just discussing one of them, his troop deployment to LA. How about on imposing and removing tariffs?

Cristian Farias: It's interesting because if there's something that there's a through line or a connection between the National Guard deployment and the tariffs, and this is something very important that people need to understand, is that the deployment to LA, the deployment to DC, is because the President suddenly declares an emergency. We have a crime emergency, we have a lawlessness emergency, and we need extra boots on the ground in order to deal with this emergency.

With tariffs, it's very similar. The President says, "Well, we have a crisis, we have a trade imbalance, or perhaps we have too much fentanyl or other drugs coming through the southern border, and therefore we need to severely restrict trade in order to deal with these emergencies." What's at the core of the tariffs case is precisely that. Can the President just declare a national emergency or an international emergency using emergency powers that Congress has given him and declare that we need these very restrictive tariffs, not just on a few countries, but pretty much global tariffs?

Never has a president erected such sweeping tariffs using this emergency authority. He's not going through the regular course, where there are certain procedures that the president must follow if he wants to impose certain levies, limited levies, and Congress has a role there, too. He did it on his own, and this got challenged in court. I covered it when it first got challenged back in April, and then other cases have come along because a lot of small businesses that rely on goods made in other countries, were feeling the burn, were feeling the prices were going up, it was getting harder to do business with these tariffs in place.

They said, "No, the President cannot use these emergency powers to basically engage in this trade war. He needs to go through Congress." In a sense, it's a very simple open-and-shut case. Can the President set taxes on these foreign goods? That's what tariffs are. It's not that-- I know the President likes to say that we're garnering all this extra revenue from these tariffs because we've had these long-standing trade imbalances, and we're going to get all this revenue. Well, that's what taxes do: they raise revenue. The reality is that the people who are paying the taxes are not these foreign countries, it's us, because we are the ones who depend on-- When we shop, we're the ones who are paying the higher price.

Brian Lehrer: The legal question here is whether he can just declare an emergency when there may objectively not be an emergency-

Cristian Farias: Exactly.

Brian Lehrer: -and take new executive powers based on that. Next one, on funding cuts to Harvard. He lost a case on that, right?

Cristian Farias: Yes. This is also a case that I've been following very closely. We covered it in the podcast that I host, The Bully's Pulpit. At the heart of the Harvard case is a First Amendment question. Yes, it is true that the president has engaged in a campaign of retribution against this Ivy League, imposing all sorts of restrictions, both when it comes to funding, when it comes to international students' visas, when it comes to even patents. The list keeps getting longer and longer.

The administration wants concessions from Harvard. Harvard didn't do that. Harvard went to court, and Harvard said, "Hey, look, what the government is doing here is threatening our academic freedom, threatening our ability to conduct our research without interference." The judge found, in Harvard's favor, that this was definitely a First Amendment violation. Her order was quite sweeping in that it basically restored the status quo to where things were before these funding threats and cuts were imposed. Now the question is, what will happen?

It was a pretty definitive win. I imagine the administration is going to appeal, but funding cuts sit at this very interesting point where, yes, this case deals with the First Amendment, but it also deals with something that the administration has been very successful at, which is to challenge all of these lawsuits all the way to the Supreme Court and one, by claiming that these funding cuts shouldn't be heard by the federal courts, they should be heard by the specialized court in Washington called the Court of Federal Claims, which, by the way, has very limited ability to deal with these more serious constitutional First Amendment issues.

It's a technical court, and they've won. The question is, will the Trump administration make the same case in the Harvard case, and will this case get chucked by the justices once it gets there?

Brian Lehrer: Each of these cases that we're talking about that Trump lost on in the last week or so might be headed to the Supreme Court. None of these are final. George in Manhattan wants to weigh in on the tariffs won in relation to democracy. George, you're on WNYC. Hello.

George: Good morning. I don't think he's-- Trump is not only trying to destroy democracy here in the United States, he's trying to destroy it elsewhere. Right now, as you know, the most glaring example is in Brazil, where Bolsonaro is under trial for his complicity in the January 6th-style insurrection. Trump has inserted himself into the judiciary, which is supposed to be independent there by denying visas to the high court or members of the high court, as well as a 50% tariff on Brazilian exports and not [inaudible 00:17:35]

Brian Lehrer: On Brazil.

George: [inaudible 00:17:36] in Venezuela. Under the guise of a drug war, he's killed 11 people in a boat, and we're not even sure if these folks were drug dealers.

Brian Lehrer: We're going to take that up in our next segment about the Department of War and this act of war. I don't know if war is the right word or police enforcement, drug interdiction, but it's not just interdiction. The US attacked what it said was a boat from Venezuela that was going to bring, I guess, deadly opioids, they would say, into the US. There was reason to take military action against it. That's one topic.

On Bolsonaro, what's the legal question here, Cristian, for you as a legal journalist, in terms of can the US, can Trump impose tariffs on Brazil for a reason, not having to do with trade but just having to do with wanting to support Bolsonaro, who, as the caller says, is on trial for January 6th type activities after he lost the election in Brazil?

Cristian Farias: That goes to the initial question that we were discussing, Brian, and that is, can the president just say anything he wants and then use that to do something that lies with Congress, which is the power to impose tariffs and levies, and taxes? What the court that decided against him did, that was very definitive, was that if the president has the power to impose these tariffs willy-nilly on his own, Congress must be very clear in delegating this authority. There wasn't any such clarity in this international powers statute that he is invoking for many of these tariffs.

That goes to what we have been talking about: can the president just declare something, and then it becomes the thing? Can he just bomb a vessel under the guise of drug enforcement or drug interdiction without any process? Talk about the Alien Enemies Act. Can the president just say that someone is an alien enemy without even an opportunity for the people who are targeted by this order to challenge that designation in court? The reality is that a lot of these men who were deported to Venezuela as alien enemies, or to El Salvador rather, including Kilmar Ábrego Garcia, none of them had an opportunity to even challenge these designations.

They've had these lawsuits after the fact, but now that courts are ruling against the president, they're basically playing catch-up. We have a fundamental disconnect in that the president can do a lot of things really fast, and the court's reacting afterwards, but by then, many times the damage is done, unless and until the other political branches, namely Congress, takes action.

Congress, unfortunately, is not doing what it could to reassert its budget authority, its authority over war-making, its authority over tariffs, then the president uses not this loophole, but this basically abdication and then runs with it. So far, there hasn't been consequences from Congress towards the President because Congress put a stop to this very quickly, but they haven't.

Brian Lehrer: That's another one of the court rulings in the last week on using the Alien Enemies Act, which allows deportations without due process during times of war. A court said, "Hey, we are not at war with Venezuela, so the attempt to deport people under that act is illegal." Even if they were drug runners, even if they were gang members, not the Alien Enemies Act, and not the exemptions to due process that the Alien Enemies Act provides.

One more on ending temporary protected status the way they did for people who've been here legally from Venezuela and Haiti because of actual emergencies in their countries that they were fleeing or weren't safe in going back to. What was that court ruling? Did that one surprise you? That one surprised me a little bit. I thought the executive branch maybe does have a lot of authority when it comes to granting or ending TPS.

Cristian Farias: This is a long-running saga in the federal courts, specifically in the Northern District of California, which is the court that has been handling a lot of these cases. The judge is Edward Chen. He has been at the helm pretty much of many of these cases dealing with TPS. Interestingly enough, this is one of those very live issues that have already gone to the Supreme Court. The Supreme Court has pretty much blocked these judges' prior rulings on this issue.

Here, Judge Chen, once again, he ruled that these terminations of TPS were illegal. They weren't done according to statute. The judge pretty much disclaimed, "Hey, look, I know that the Supreme Court already gave me an order that I shouldn't have done this, but that was in a preliminary posture. Now I've come to a more considered conclusion, I've heard more evidence, and I have found that I am not prevented from considering the merits of this dispute. Now I'm issuing a final judgment. This policy that the Secretary of Homeland Security tried to impose, I have found that it violates federal law and therefore I'm going to vacate it."

That raises an interesting question now for the Trump administration: Will we go once again, once again, to the Supreme Court, saying, "Hey, look, here's this rogue judge who is going against your prior pronouncement," or will they abide by it? I don't think they'll abide by it because that's not how this administration many times operates. I imagine they're going to challenge it, but this is something that is a recurring issue.

Recently, we've seen some interesting writings from the Supreme Court almost wagging the finger at lower courts, saying, "We've already given you guidance on how to rule on some of these issues, including federal funding, including issues related to immigration." Individual justice in particular, very recently, Judges Gorsuch and Brett Kavanaugh have said, "Lower court judges are in no position to defy our court orders," in so many words. I'm paraphrasing.

Judges have had to almost recalibrate the way they do things because they feel like they're being lectured by the Supreme Court on how to do their work, but the reality is that the Supreme Court is acting on a very short timeline. They're issuing in these so-called shadow docket orders, which I'm sure your listeners may be familiar with, where they rule on very consequential issues with very little briefing, with no oral argument, and their orders are literally one or two sentences long.

Sometimes they'll go a little longer, but they don't provide a model of clarity or guidance to lower courts. Then lower courts are basically left holding the bag. "What do we do now with these other cases that present different situations, very difficult issues? "Without that clarity from the Supreme Court, judges have to fill in the gaps. In many cases, judges are ruling once again for the administration. It's an open question: will this pattern continue, or will the Supreme Court realize, maybe the Trump administration is doing things in a way that is contrary to law?

These judges who see all the evidence, who issue very long, very considered rulings. Some rulings are 200 pages long. The Supreme Court just dismisses them without an explanation. It's an affront to both the work of these judges but also to the rest of us who read these opinions. We see with our own eyes what is being done. We see the work that these judges are doing, and the Supreme Court, unfortunately, is very dismissive of much of it.

Brian Lehrer: Real quick, before we run out of time, let me get one more caller in here. Tom on Staten Island, who I think supports the National Guard deployment. Tom, you're on WNYC. Hello.

Brian Lehrer: Hello, Brian, guest. You guys do great job all the time, and I love your show. President is absolutely 1,000% right. He put 1,000 strike force in a particular area, it's going to cut down on crime accordingly. As an example, I'm an ex-teacher. I have a problem with the kids throwing gum on the floor. I get 100 parents, half of who have masks on and are scary. Guess what? No more gum problems. Set to that instead of doing what the president's doing, all the damn mayors, governors, et cetera, give us the 1,000 extra troops. We'll call them police officers. Give us those guys, and that's going to cut down on crime, too. This is easy.

Brian Lehrer: Would you feel the same way, since you brought up masks, if it was the Biden administration deploying the National Guard to enforce a mask mandate when they genuinely believe that that was necessary to protect public health?

Tom: Public health and this to me are very different. No, I wouldn't-- I'm not supporting Trump at all. Maybe you weren't sure of my example. You just bring in more people who are scary. That's going to cut down on the issues.

Brian Lehrer: On the issue of crime.

Tom: I am 1,000 against Trump.

Brian Lehrer: You're for his deployment of the National Guard to help with metropolitan policing, if I understand you right.

Tom: Not that I'm for it. All I'm saying it's going to cut back on the crime rate. Of course.

Brian Lehrer: Tom, thank you very much. It brings us back to the J.B. Pritzker clip, governor of Illinois, that we played at the beginning of the segment. This will be our last question, Cristian. There are probably a lot of people out there. I think the polls indicate that the majority doesn't think so, but most Republicans do think so. It's only a small majority that doesn't think deploying the National Guard in cities to help with crime is a good idea if the crime is real.

In the face of that popularity, if it is popular enough with enough voters for Trump to consider it a political win, what could it lead to? Here's what the Democratic governor of Illinois, who might want to run for president himself, said about that.

Governor J.B. Pritzker: This is a part of his plan to do something really nefarious, which is to interfere with elections in 2026. He wants to have troops on the ground.

Brian Lehrer: There's the slippery slope argument from Tom and Staten Island's cut-down-on-crime argument. Give us a last thought on how much you think that's a threat and how that could actually intimidate Voters.

Cristian Farias: Whenever there is anyone with a gun at a voting booth, that of course scares people from voting. This is not a hypothetical, this is something that we have seen during the civil rights era. Congress has had to pass laws, including the Voting Rights Act, to prevent that kind of poll intimidation. I don't know if things will get to that point, but the reality is that the President is not deploying the National Guard. He is not nationalizing state National Guards in Republican led states, where crime is very much still an issue. He's only doing it in Democratic led states. People should think about what that means.

Also, people should think about the reality that-- I don't know who are the people who are responding to these polls, who are the Republican voters who support the deployment of the National Guard, but many people are blessed to live in localities or jurisdictions where perhaps it's nice, it's quaint, it's not like living in a city. We tend to just see these cities through the lens of the evening news, or perhaps just-- Unfortunately, our own news media environment feeds that perception.

I have family members who are afraid of me going into the city because they think I'm going to get pushed off the subway tracks or whatever. I tell them, "No, the subway remains very safe." I have to reassure them because that's what they see in the news. Unfortunately, a lot of people color their reality, color their even perhaps survey responses through what they see on the news. I want to tell them, hey, look, things are not the way they seem. The president is trying to create a reality to justify a lot of these abuses of power. It takes us, not the courts, it takes regular people to push back. Until and unless we do that, we're going to continue seeing similar deployments in other cities.

Brian Lehrer: The other side of that, I guess, is that there's this big debate within the Democratic Party about whether they're ever going to win elections by telling voters that they're not really experiencing what they think they're experiencing, or at least that they're afraid of. Cristian Farias, legal journalist who writes for Vanity Fair, The New Yorker, and other publications, and is host of a podcast called The Bully's Pulpit, which is about Trump and the First Amendment. A podcast from the Knight First Amendment Institute at Columbia University. Thank you so much for joining us today.

Cristian Farias: It was my pleasure, Brian.

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