This is Bloomberg Law with June Grossel from Bloomberg Radio.
If I didn't send the National Guard into Los Angeles, you wouldn't I would be making an announcement today, I'd be talking about Huntsville, and I'd simultaneously be saying, by the way, the Olympics is not coming to Los Angeles.
But a federal judge has found there was no rebellion, nor was civilian law enforcement unable to respond to the protests and enforce the law in Los Angeles. This summer, Judge Stephen Bryer ruled that the Trump administration wilfully violated federal law by deploying National Guard troops and US Marines
to carry out local law enforcement in Los Angeles. In a scathing ruling, Briar noted that Trump has stated his intention to deploy National Guard troops to other cities across the country, raising concerns that Trump is creating a national police force with the president as its chief. And today in the Oval Office, Trump confirmed that Chicago is next that he'll direct federal law enforcement intervention to combat crime in Chicago, despite staunch opposition from state and local officials.
If the governor Illinois would call up, call me up. I would love to do it. Now we're going to do it anyway. We have the right to do it because I have an obligation to protect this country and that includes Baltimore. I saw where Governor Moore was asking me to take a walk down the street of Baltimore. Well, Baltimore is a very unsafe place.
Illinois Governor JB. Pritzker reiterated today that crime is down in Chicago and that the city doesn't need, nor does it want, federal troops there.
None of this is about fighting crime or making Chicago safer. None of it. For Trump, it's about testing his power and producing a political drama to cover up for his corruption. If you need any proof of this that it's all a big show.
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 sending troops into Los Angeles.
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 a day on his earlier preliminary injunction. So the court here is trying to be careful in trying to say what the National Guard can do and can't do. And it's up to the Ninth Circuit to react, and I'm sure they'll react one way or the other.
But how didn't he find that sending the National Guard in was a violation of the Passikamatatis Act.
He did, but he said that there were some duties that the federalized National Guard could in fact undertake consistent with the pass Coomatatas Act, but that the fact was that he made a factual finding that the troops had done more than that they had engaged in general law enforcement activity, which she said was proscribed under the Pussikamatatis
Act and tradition. So he made it more narrow nuanced finding that they had previously saying he didn't even question the ability of the President to federalize the National Guard against the governor's wishes, which obviously took place earlier in the year. But he said, even if the president can do that, they can't engage in general law enforcement activities, including covering ice agents, including dispersing crowd and so forth.
So it's a.
More narrow decision than he issued previously, and we'll see how the Ninth Circuit again reacts to it.
So he said, there were indeed protests in Los Angeles and some individuals engaged in violence, yet there was no rebellion, nor was civilian law enforcement unable to respond to the protests and enforce the law.
There was really two sides. The earlier had ruled that.
The President lacked authority to federalize the National Guard because of the reasons you suggested, And 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 they could not engage in sort of typical law enforcement authority, which he said, including you know, dispersing crowds, including protecting ice agents and so forth. 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 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 Comatatus 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.
The judge cited us he span broadcast of Trump's August twenty seventh Cabinet meeting where he discussed sending the National Guard into Chicago and said, quote, I have the right to do anything I want to do.
So Judge Briar cited.
That, and then he expanded his order beyond Los Angeles to all of California.
You're currently limited the order to California, but decided that because California itself was a plaintiff, he was empowered to extend the relief to grant protection to the plaintiff in the case.
Do you think that went too far?
Well, My only concern about the Court's opinion is that the Court seemed to be dismissing the present'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 passe comatatus Act. I think the Court was a little bit quick in terms of dismissing the presence sort of inherent authority under
the Commander and Chief clause of the Constitution. Clearly, presidents have to make tough costs, tough calls in terms of lias on street, tough cause in terms of potential invasions and so forth, and so if the president is said, we need to protect federal buildings, we need to protect federal instrumentalities, I 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 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.
What Trump has said today is there are lots of murderers in Chicago, and crime is up in Chicago, and they're going in.
But he didn't say when.
But there's absolutely no justification for what the President say 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 Pritsko, will immediately go to court not only cite the most recent Judge Briar decision, but cite just more 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.
So Judge Briar's decision has no effect in Illinois correct, But is the reasoning strong enough to apply to Illinois.
I think that reasoning will over 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 Key as Caman achieved, can't ensure an orderly function of immigration processes in this country without calling in supportive troops. That would be the strongest 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 basically 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 the United States. And that downright is frightening. Not only is it clearly outlawed by the pussy Coomatata fact and by the history that led to the Act, but it's a huge step towards autocracy.
What if he just instead of sending in the National Guard or military troops, if you just sent in lots and lots of federal agbi dea ice, Is there any a problem with that?
Legally?
There may be pockets of restrictions, but I think ordinarily that would be within his power, and certainly he can shift FBI agents over to EIST as 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 FBI agents in terms of taking over for general law enforcement
for Chicago, because the FBI is not authorized. The EE agents aren't authorized to deal with conventional robbery, theft, et cetera. That are state crimes, not federal crimes.
So the Insurrection Act is an exception to the posse comma tatis law.
That's correct. And so if he would deem that we are under insurrection, I don't even know what the theory would be in Chicago. But if he says that there is an insurrection because undocumented worker are rising up in arms against the authority, 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 one is very far fetched given the facts as we know them.
Now, and particularly in light of the fact that he did not declare an insurrection on January sixth of twenty twenty one. Coming up next on the Bloomberg Lawn Show, I'll continue this conversation with Professor Harold Krant of the Chicago Kent College of Law. So what can Illinois governor and Chicago's mayor do? I'm June Gross. When you're listening
to Bloomberg. President Donald Trump said today that he'll direct federal law enforcement intervention to combat crime in Chicago, despite staunch opposition from Chicago's mayor and Illinois governor.
Well, we're going in.
I didn't say when we're going in.
We know before anything has happened here that the Trump plan is to use any excuse to deploy armed military personnel to Chicago. If someone flings a sandwich at an Ice agent, Trump will try and go on TV and declare an emergency in Chicago.
I've been talking to Professor Harold Krent of the Chicago Kent College of Law. So how before the break, we were talking about Judge Briar's decision that the Trump administration willfully broke federal law when they sent National Guard troops to Los Angeles, and we were talking about the Insurrection Act and that that's an exception to the Posse Comitatis Act that Judge Briar said the president could have invoked.
Judge said, if the president wants to avoid the act's restrictions, he must invoke a valid exception like the Insurrection Act, along with its requisite showing that state and local law enforcement are unable or unwilling to act.
But when we had riots in the wake of the sesssination of Martin Luther King, whom he 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 Putico Tatus Act. And indeed, the courts would be in difficult position if 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. He's never made that finding, and given the fact that the clim has gone down into these like Washington, d C in Chicago, it's simply far fetched, which is understandably why he doesn't want to make that kind of specific finding. So, yes, presidents have sent in troops, and President Trump could in the future respecting Congress, but not in these situations. Obviously, the Constitution ascribes a principal role to Congress and deciding
when to introduce the military into civil in situations. Congress has done so in the Passacacomma Titus Act as well as the limitations in the Insurrection Act. And that's the role that the Constitution gives to Congress, and pusident Trump is just writing luckshot over the constitutional structure.
The mayor of Chicago and the governor and other officials held this press conference, and is there anything that the governor or the mayor can do to stop him from federalizing the National Guard? I mean, the National Guard is supposedly under the governor's control, right, absolutely.
But there are circumstances where the president can federalize the National Guard. And at this point they may preemptibly go to court. I'm sure they're discussing it both in terms of filing lawsuit before the President sends troops or they'll wait them out and at the first sign of when the President does introduce troops into the streets of Chicago, then they'll run into the federal.
Court and hope for the best. I think they will.
Receive a favorable reception in the Seventh Circuit in this area. But time will tell.
Suppose they started using the National Guard for other things in Chicago or in Illinois, cleaning up the streets of every town or something like that. Suppose they just use the National Guard themselves.
Yeah, I mean, the governor can do that, and the governors in the past, have you used the National Guard to help enhance the safety of their communities, But absent the governor's directions, that president lacks the authority to do so except for these delineated exceptions that Congress has carefully fought through, And it would be up to the courts then to respect that dividing line between Congress and the
President at least. Otherwise we're going to have not a separation of powers of three equal branches, but everything will be totally dominated by one branch.
And that's something that the Framers were very cognizant.
About, the fear of having one branch exceed too much power to its own, and that's what we're confronting in the near future.
Tell us what the Ninth Circuit ruled before.
It's said that it really difficult for courts of second guests a justification by the President that there was simply not sufficient local law enforcement to protect federal undertakings. In this case, the federal undertakers, of course, were the Ice agents attempting to round up undocumented individuals and sending them out of the country. And so the court decided two.
To one to not weigh in and say that they have a hearing on whether.
Or not the president's justification was pretext or not. And so again the District Court here, Judge Bryer cleverly said, even if that's true, that the president has violated the comatatis Statute because it has not limited the use of the troops for those permissible functions. So they didn't want to get into pretext or non pretext, but rather just said that what in fact the troops did in Los Angeles exceeded their permissible bounds under the statute.
So, I mean, if the Seventh Circuit follows the Ninth Circuit, then they wouldn't stop the troops from coming in.
I don't think that's going to happen. I mean, I think that it obviously depends on what district court judge gets the case. Once it's filed, assumably by Governor Pritzker, But I think that the logical outcome here is different because of the fact that there's no fig leaf. The President has not even come close to complying with the
Postacoma Thomas Act. He's just said local law enforcement time and a time at news conferences and not even suggesting that there's an insurrection or a failure of the state and local government to comply with judicial commands. So I think the role is quite clear here in a lawsuit is simply issue an injunction to say here outside your lane and it would be up then into the Seventh Circuit if there is an a junction to determine whether to grant it or not, and I think they would uphold it.
And Judge Bryer said something that really resonates in light of the fact that President Trump has talked about Chicago and next Baltimore and New York. He said, it raises concerns that they're creating a national police force with the president as its chief. And that's what it seems to be because it's about crime, which is usually a local issue.
Yeah, it's one thing for the president as quasi governor for DC to decide what's needed to maintain law and order on DC streets. Obviously that's very controversial in his own but it's another thing for him to do that in states where there are governors trying to displace ubernatorial authority.
And of course, if you step back and look at this, you know the President has said he's doing this in Chicago, maybe New York, maybe Baltimore, But you don't hear about New Orleans, Memphis, Saint Louis, places with higher crime rates that are in Republican states. So again, to think about what the president's accomplishing here, he's trying to flexis muscles in a way which creates an incredibly dangerous precedent for the entire country.
Well, let's hope it doesn't happen. If it does, there's certainly going to be a lot of litigation about it. Thanks so much, Hal. That's Professor Harold Krent of the Chicago Kent College of Law, coming up next on the Bloomberg Law Show. A federal appeals court has ruled that President Trump had no legal right to impose sweeping tariffs on almost every country. But the next stop is the Supreme Court. I'm June Grosso and you're listening to Bloomberg.
A federal appeals court has ruled that President Donald Trump had no legal right to impose sweeping tariffs on almost every country. In a seven to four ruling, the US Court of Appeals for the Federal Circuit found that Trump overstepped his authority under an emergency powers law. It's a major legal blow, but it largely upheld a made decision by a special federal Trade court in New York.
But it's a liberal court and it's going up to the Supreme Court, who I think have been incredible people. I think they've made very wise decisions. But the tariff question, because without the tariffs' countries in serious, serious trouble. We've taken in. Almost seventeen trillion dollars of investment is coming in. Most of it is come in because of tariffs.
The appeals court didn't strike down the tariffs immediately, allowing the administration until mid October to appeal to the Supreme Court, although Trump says they'll do so immediately. My guest is Jimmy Garul, a professor at Notre Dame Law School and the former Undersecretary for Enforcement at the Department of the Treasury. Jimmy will you explain why the Federal Circuit Court of Appeals ruled against Trump's tariffs.
Well, first let me meet us back up. So on Friday, as you state of, the US Court of Appeals for the Federal Circuit affirmed a lower court decision by the Court of International Trade. That decision was issued back in May, and in that decision, the Court of International Trade set aside five executive orders issued by President Trump that imposed tariffs of unlimited duration on nearly all goods from merely
every country across the globe. So that decision was affirmed, and the US Court of Appeals for the Federal Circuit held that AIPA the International Emergency Economic Powers Act, that the authority under that statute to authorize the President to regulate and this is an important term in the statute, regulate imports. Does not authorize President Trump to impose tariffs under either the reciprocal tariffs or the drug trafficking tariffs.
And so largely it was a statutory construction issue before the court. And again the specific issue focused on this term regulate and specifically that AIPA authorized as a president to regulate imports and whether or not that authority includes the authority to impose tariffs, and the Federal Court said, no, it does not.
So they didn't get into, you know, his claims about the tariffs that they were to try to settle the trade imbalance and the importation of fentenol.
Do they reach that at all?
No, there really wasn't. It focused again on this particular language, you know, the term regulate and what's the scope of the meaning.
Of that term.
The court went on, you know, focusing on statutory construction and look to other statutes that Congress had enacted that authorized the president to impost tariffs and said, well, look, with those federal statutes, Congress had imposed requirements on when the president could impose tariffs and imposed limitations and said, well,
that's not the case here. You know that there were very very few, you know, limitations on the president's authority to impost tariffs under iepis has been leveraged by by President Trump. They talked about legislative intent, that there was no legislative intent and the statute to authorize the President
to impose triiffs. They highlighted the fact that the word tariffs does not appear anywhere in the statute and therefore, from a statutory construction perspective, the Court said, you know, no, IPA doesn't provide the president of that authority. Now, having said that, there were a couple of additional interesting arguments
that the Federal Court race. You know, one, they talked about something called the major questions doctrine, and they said that under the major questions doctrine, the Supreme Court has held that if there is an asserted delegation of authority, or if the president the executive branch is claiming that Congress has transferred certain authority to the executive branch, if based upon the history in the breast of that authority that it would have vast economic and political significance, and
that's the term, you know, economic and political significance, then there must be clear congressional authorization for the asserted power. And here they claimed that there was no such clear congressional authorization from Congress to the president to impose tariffs.
And then lastly, I think that the next major argument that the Court raised and reaching its conclusion is they argue that the government's argument that the president had this authority was delegated to the executive branch by Congress violated the non delegation doctrine, that this was an unconstitutional delegation of power because Congress did not provide a sufficiently intelligible principle that set forth the purpose of why Congress delegated
this power to impose tariffs to the president. And then what were the boundaries, what were the legal boundaries on this delegation of authority. So it was these combination of arguments, again focusing primarily on the language of the statute that the courts relied on in this conclusion striking down the tariffs.
So what about the descent, the four judges and the descent, why didn't they agree?
Yeah, that's an excellent question, And so it was almost kind of a tet for tet arguments, so that the Center's arguing, well, you know, we think that the term regulate is sufficient, that it does include the authority to
impose tariffs. And then with respect to the argument regarding the major question doctrine and the non delegation doctrine, the Descent raised a really interesting argument, and they said, well, yeah, but this involves issues implicating national security and foreign policy, and we think that the major questioned doctrine doesn't apply in the context of the exercise of power by the president to protect national security, defend national security, or in
the field of foreign affairs, and if it does, it should be liberally applied, not in a narrow way, but to afford the president to exercise terrorf authority, and the same thing with a non delegation doctrine. That again, the court should be very deferential to the president in the field of national security and foreign policy. And that could very well be an argument that the Supreme Court finds persuasive in striking down the Federal Court decision and affirming the tariffs.
The Supreme Court has repeatedly ruled in the president's favor, expanding and expanding and expanding presidential power.
Do you think they're likely to do the same here.
Well, the US Supreme Court is ruled in favor of President Trump and against lower federal court decisions, and at least sixteen rulings since April of twenty twenty five, and you know, they've lifted injunctions that have been imposed on actions taken by the president, again in favor of the Trump administration. This is the so called you know, shadow docket.
And so the Supreme Court, based upon these decisions, they seem to be very deferential to the president's exercise of executive authority, and they seem to be comfortable and fine with an expansion of the president's executive authority based upon these previous rulings. And so I think if this pattern continues, if we see this pattern continue, then then I think it would likely result in a decision that's favorable to President Trump and affirming his authority to impose Tariff's under AVA.
I keep waiting to see what move by Trump will be outrageous enough or extend his authority enough that the Court is going to finally say, Okay, stop there.
Yeah, it's hard to identify that benchmark, you know, when that red line would be crossed, especially considering the fact that the Supreme Court not that long ago, relatively recently a role that the president is virtually immune for prosecution.
But any action taken by the President pursuing who is Article two authorities, you know, he's immune and he can't be criminally prosecuted, which I'm sure has only in bold in the president in terms of really stretching the bounds, you know, pressing the boundaries, you know, the extreme boundaries of his authority.
There are other laws that he could use.
Scott Besant was talking about section three three eight to the smooth Holly Terar Effect of nineteen thirty. Then I've heard about the Trade Act of nineteen seventy four, So I mean, what could he use if he wants to stay away from a well.
That's a secretary Vessent has recently commented on the Federal Circuit Court decision and basically making two two points, you know. One, he says that he is extremely confident that the Supreme Court is going to uphold the Trump tariffs, and that even if the Supreme Court rules against the Trump administration or limits its authority under AEPA, that there are several other statutes enacted by Congress that the president could use to continue the tariffs. Now, those statutes are not as
broad in scope as IEPA. Therefore, there would be certain there would be additional prerequisites, you know, conditions and limitations placed on the president with respect to imposing tariffs under those statutes. But there certainly are other statutes that the Trump administration could leverage to continue the tariffs.
So they picked this because it was fast and easy.
Yeah, yeah, largely largely so because again the requirements are not as demanding as they are in some of these other statutes, and the kind of limitations that are imposed on those statutes aren't present with the International Emergency Economic Powers Act. So I eba cleaner, quicker, easier. Let's take the path of least resistance, which is ABA, instead of going through these other statutes that are more complicated.
So the tariffs still on steel, aluminum, and automobiles are unaffected by this decision.
Yes, that's correct, and the reason being is that those tariffs were enacted under a different statute. They weren't authorized under AEPA.
I mean, so, how much of a setback is this for Trump?
Well, we'll see. I do think even if let's assume that the Supreme Court affirms the Federal Circuit Court decision striking down tariffs and RIPA, so then the administration has to pursue Plan B. I do think that those other statutes, again, they weren't narrow and focused, and they impose greater restrictions and limitations. So that is going to I think cumulatively limit the scope of the tariffs that are currently in place. But at the end of the day, what does that mean?
You know, the president doesn't get one hundred percent of the tariffs that he's imposed. He only gets eighty percent or seventy five percent. We'll see, and I think that that many of the tariffs will continue, but just based on different authority. But I think that maybe the more fundamental issue here is the uncertainty this decision by the Federal Circuit is creating for investors in the economy. And
then what are the implications? So if the if the AEPA tariffs are struck down, what are the implications of that? So does that I mean, the tariffs that have been paid under these executive orders have to be repaid, the businesses that pay those tariffs have to be compensated. So there's a lot of complicated What are the implications of this with respect to ongoing negotiations with other countries the
United States and other countries involving the current tariffs. So if the tariffs are struck down on RAIPA, is that going to disrupt those negotiations or those negotiations going to going to terminate? What's the effect going to be? And so the ripple effects of the Supreme Court's decision, whichever way it rules, is going to have I think a substantial significant impact on the global economy.
Thanks so much for joining me.
Jimmy.
That's Professor Jimmy Garoul of Notre Dame Law School. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law PODCAS. 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 listening to Bloomberg