Trump's Deployment of Troops Questioned

and Knight. There are lawsuits challenging Trump's deployments in Los Angeles, Chicago, Portland, and DC making their way through the courts. Have any of them so far answered the question of whether he legally invoked Section twelve four h six of Title ten to bring state National Guard troops under federal cos well.

that far. They didn't say that the courts can't analyze it, but they said they have to use a highly deferential test and that the standard of review was quote, whether there was a colorable assessment of the facts in law within a range of honest judgment, which is a highly deferential standard that basically said, if the President had any sort of decent argument for saying that the Guard needed to be deployed in order to either enforce federal law

or prevent rebellion circumstances, that would be enough. The dissenting judge said, no, no, no, this is just like a normal factual question where you have a hearing or a trial and you come to the factual decision like any trial, was there a murder, yes or no, it's not any difference that's given you have a trial, and in this case, whoever wins under a preponderance of the evidence standard would win.

And the dissenting judge said that there wasn't enough evidence that there was actually any sort of rebellion or other issues in Portland. And so now this two to one decision is now going to go to on bank review. The Chief Judge said for the court, without needing anybody to ask, the Chief Judge, there should be on bank review. And now there's going to be on bank review to

determine whether that two to one decision would apply. In Chicago, we have a similar situation where the City of Chicago and the State of Illinois also sued, arguing that the deployment of the National Guard in the Chicago areas also violated the Statute and the Tenth Amendment and the posse comitatis law, which prevents federal troops from enforcing civil laws. And the judge in that case issued a temporary restraining order.

The Seventh Circuit upheld the ruling, and the President Trump asked the Supreme Court to lift the tro And now the Supreme Court in that case has asked for additional briefing to try to determine whether these words regular forces in the Statute means military forces, and then how that interpretation affects the president's authority to federalize the Guard. And so at the moment, that's where we are on these things.

We don't know exactly what the president can do, what the standard of review is, et cetera.

his favor. What does it tell you that with this request, they're asking about the specific wording of the law, which says a president may deploy the guard when he is quote unable with the regular forces to execute the laws of the United States.

already send in military troops. That's a little bit complicated because of it is then who are these federal service members that the president is then allowed to send in plus the units of the National Guard of any state. So that's the question. Does it mean US military forces or does it mean people like FBI, you know, Homeland security investigation and things of that nature, so sort of federal police power force type people, but not actual US

military troops. I think it would make a lot less sense if regular forces didn't just mean FBI ice HSI, that kind of thing, the sort of people who enforce the federal law, the ATF that kind of group as opposed to the military. Because of it also meant the military. Then who are these quote unquote federal service members that can be called into service if the quote unquote regular forces are not able to execute the law. So that's what I think it means, but we'll have to wait

and see what the Supreme Court says. It means.

of quick ruling on. And I think if there was an actual place in America right now that was ungovernable and where people couldn't go to work and there were barricades everywhere and nobody could go to school, maybe there would be urgency here. But that's not really the urgency anyone is talking about. There's not a city in America where no one can go to work, or go to school, or get treated in a hospital or any of those

major things. At all of these cities. Sports events are still going on, Concerts are still going on, all of these things, and so it's hard to say there's an interrection going on. In a true national emergency where none of those things were going on, maybe we'd have a faster ruling. But I think the Court understands here it's better to get it right.

of defference that the President's determination gets. And then based on the level of defference, they may remand for a trial or hearing based on that level of difference, or they may decide they have enough evidence to move forward with that level of difference and decide, here's what the facts dictate. Based on the level of difference, we decide. So it could go either of those two ways, but we'll just have to wait for the Supreme Court to say.

And plus that may end up being different in Chicago versus in Portland or in Los Angeles. They may decide that there is a bigger crisis in one location than in another, and so in one location they can deploy the federal troops, and in another location they cannot because it doesn't rise to whatever new standard they decided to apply in this case.

different parts. They have one that protects the United States from people trying to cross in between ports of entry, and they have a second mission of guarding ports of entry themselves so that people don't get through the ports of entry who shouldn't get through. And this is the area of the Border Patrol where mister Baveno comes from.

And this has happened in the past because what happens is that within the Department of Homeland Security they get the impression that the people who come through the Border Patrol have a more police oriented view of the world because that's what they're doing. They're actually walking around looking for crime, so to speak. If they see someone cross the border, then they're going to apprehend them the same way a police officer if they see someone robbing a store,

they will apprehend them. Whereas ICE traditionally doesn't have that ethos of operating as roving cops on a beat. They have more of a here's a list of people we are passed with deporting today, and now we need to either go pick them up at work, or pick them up in the courthouse, or pick them up at home, and it's a much more targeted planned day. That's how ICE likes to operate, is within the targeted planned day for operational concerns. And this has developed over thirty years.

This is not something that's happened over a day or two. Because what happens is when ICE starts operating in the same way local police would start operating, which is just look around and try to find crime, then what you're doing is looking around and trying to find people who are there illegally. So just their existence in America is the crime. And whether you like this policy or don't like the policy, I'm not even saying anything about the policy.

I would just hope that the listeners of your broadcast would agree that whether you like it or not when that gets implemented. When ICE gets deployed in the same way local police would be deployed, it creates tension on both sides of the equation, where the people who don't like ICE deployed in that manner start protesting, start barricading ICE, start hiding people in their houses, and start doing everything they can to resist ICE operating in that manner. And

this isn't even new either. You can find stories about this every day for the last thirty years. It's just that when you do it at a higher scale, you get more of it. Or if you don't do this, then you have the people who say, well, we're not getting enough arrests, And it's true, you're not going to get enough arrests if you don't have these roving enforcement arrests that happened where you could just grab thirty people at one place at one location just because you think

it looks suspicious there. Yes, that will increase the number of arrests, but that also increases the level of tension that you're tightening in that area when you do that.

And again I'm not thinking that, I mean you should do it or you shouldn't do it, but that's why the Trump administration has moved a lot of the ICE agents who are leading these various local locations out of their positions and is trying to bring in border patrol people like mister Bovino, because it's saying we need to change the ethos of ICE and turn it into a police like unit that's roving around looking for crime, so

to speak. But in this case, again, the crime is just the existence of the human being in America, which is what makes it complicated. So you're not observing someone stealing something, or you're not observing someone injuring somebody. You're just observing someone standing there and you're asking yourself, is this person that's standing there standing there illegally and you

don't know they might be, they might not be. But the act of asking, over and over and over again creates a level of tension that's completely different than any other kind of police operation creates. And that's why I, as I explained previously, I prefers the ethos of saying, look, I'm sorry, this person Joe Smith is on a list, they committed a crime or they were ordered deported in two thousand and eight, and they've managed to stay here seventeen years. Why do you think that you should defend

this person. That's a much easier law enforcement role to defend, and that's why they like that as opposed to these roving operations.

on illegal immigration. I've been talking to immigration lawyer Leon Fresco of Honda Night Soully on in that Chicago case. Federal Judge Sarah Ellis has issued some orders, including requiring agents to wear visible identification and issue warnings before using weapons like tear gas or pepper spray. And she's expressed alarm over videos and photographs that show the agents confronting

protesters and deploying teargas at a weekend Halloween event. We've been talking about Greg Bavino, the Border Patrol chief, and she had him on the stand for about an hour the other day, asking him about the enforcement tactics, and she ordered him to come back every day to report to her. But the Seventh Circuit Court of Appeals paused that order.

legitimately preparing to give that testimony. Because no one just sends a witness in to speak to a federal judge without preparation for the testimony, giving them facts, giving them everything that's happening that day. So basically, you will have turned the head of the law enforcement operation into a professional witness. This person wouldn't actually be able to do

any other work all day. Their entire day would be devoted to learning the facts that they were going to give the judge that day, preparing the testimony, and then testifying that That would be an entire day of work, and the federal government said, that's that been a thing that's ever existed where we've ever had a federal judge turn a US law enforcement official into a federal witness that has to come every day and just do that and not actually do the job they're supposed to do.

And they point out the federal government correctly that even the plaintiffs didn't ask for this, This was just something the judge did out of frustration with the federal government. So the plaintiffs didn't ask for it, because I doubt they would have even imagined the world where such relief could have ever been granted. But the judge was so

frustrated that the judge granted the relief. And so I do think it was very helpful to the federal government to make an argument that, hey, if the plaintiffs don't want something, why is the judge ordering it.

and they'll have to wear body cameras, they'll have to identify themselves. They can't wear masks, and that would be a dramatic change from the operating events in a lot of places right now.

If you have a field office director who is much more oriented toward a aggressive enforcement posture, you're going to have more aggressive enforcement in that field office area. Then if you have a field office director who's not focused

as much on an aggressive enforcement posture. And so in about six or seven cities, the administration has decided to replace the field office directors that were there from ICE, move them to DC, and replace them with people who are coming from the Border Patrol to again have this sort of focus on roving enforcement that we were talking about earlier, where instead of looking for a set number of people each day that ICE had determined based on

investigations the previous day or the previous week, it would actually say, no, we're going to go to a more aggressive posture and start questioning people on the streets about whether they have a right to be in the United States.

kinds of craziness occurs. And so I do think you're not gonna see an answer that says, Okay, Governor Pritzker, we agree with you. We're not going to enforce the law on Halloween. All of these enforcement officers, everybody has to remember our human beings.

arrests a day, we were at two thousand. We thought we were going to get there. Now we're back at one thousand. What is happening? What's going on? And all of this ignores that all of this enforcement needs to be done by human beings who have morale issues, who, by the way, aren't getting paid right now because the government is shut down, and are worried about are they going to be able to keep their house, Are they

going to be able to make their car payments? Are they going to be able to pay their medical bills? The last thing they're worried about is I want to start creating a massive riot on Halloween. I don't think that's a high priority for these poor agents who aren't getting paid right now. And so I just think, regardless of who the leaders are, and regardless even of the message given, there is a certain amount of inertia that exists there where people you can only take them so far.

And yes, people want to enforce the immigration law, and the people there at Ice strongly believe in the importance of enforcing the immigration law. But there's an operational reality there that they face every day and that they've seen over the course of years that when you push things too far, they know that then it becomes very difficult

to unwind that. And so they're just trying to get an equilibrium where they can enforce the law as strictly as they can while still maintaining other forms of order in the society.

fifty million people. And each year, unless it's a year like a COVID year where everything is out of control and it's not a normal year, if you are just running the course of things, you would notice each year if you go to the Department of Homeland Security immigration statistics,

that one million or so. It fluctuates between about eight hundred thousand and one point two million, but let's just say one million for the purposes of this people a year are given a green card, meaning the right to permanently reside in the United States each year, and that comes from a number of places. It comes from US citizens marrying foreign nationals. That's the largest group by far,

that's about four hundred thousand people per year. It comes from US citizens bringing in their parents who are foreign nationals, and that happen. Happens because when people either marry a US citizen and then they become a citizen one day, or an employer sponsors them, which is a much smaller number, but they then become a citizen one day, they can then bring their parents. So that's another group. So those

parents and then any minor essentially step children. That So let's say you marry a foreign national, if you're a US citizen and that person had a child who was under eighteen, that person can qualify also for a lawful permanent resident status. So that group right there just that group each year is about six hundred thousand people per year, like clockwork, And so the question is will you get

rid of any of those individuals? And then between people who come for high skilled work, which is about one hundred and twenty thousand a year, plus another group which is refugees, which the Trump administration has already zeroed out, so that's gone, but it used to be about one hundred thousand a year, and then assiles, which are people who we didn't know were coming but showed up at our doorstep. That was about one hundred thousand a year.

Now that's been zero about two So the Trump administration can actually say it's cut two hundred thousand or so already from that one million that you're gonna see next year because you're not gonna have refugees or assilies. So they can say that, but then there's a debate, Okay, what about those other eight hundred thousand. Is that too much or too little? And I think that's a debate

that people are having. But honestly, if you're if you unless you're gonna say that a US citizen is not allowed to marry a foreign national and live with them here in America, most of your legal immigration is still gonna be high because that number is the bulk of what our immigration is each year. Is a US citizen marrying a foreign national.

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 listening to Bloomberg