The Courts Attack the Presidents Powers

Review about it. But I also want to talk about the legal side of it, because it really is touching on this massive problem. This is a big problem for American governance in general, and it's become this hugely outsized problem during both of the Trump administrations. Rule by judges, where judges feel they have the ability to jump in on questions where I think it's more than arguable that it's not really areas that are subject to their review that the framers would not have viewed as subject to

their review. I think one of the arguments about the Abrego Garcia case, well, not really the Obrego Garcia case, but the categorization of the large group of Venezuelans as using the alien enemies Act to deport a bunch of these Venezuelans. Is when that statue was drafted in the eighteenth century, it was before the concept of judicial review was even really very firmly established within the American courts.

And basically, the Alien Enemies Act it gave the president power during war time or well in the event of an invasion or a predatory incursion or and there's specific language in the statute that I don't want to gloss over, YadA YadA, through it gives the president certain power to

deport certain people. And we're trying to fit that eighteenth century statute into the modern do process system saying, well, you know, these people need to have a hearing, and they need to have and I there's a part of me that's sort of agreeing in general, like if someone so the president can designate someone as an alien enemy and then they get deported out of the country and they have no opportunity for a hearing or for a review, like to determine whether they actually are an alien enemy.

You know what if the president just does that to someone who's a citizen, like, do they have no recourse? And the problem is do they have no recourse? Well, maybe the recourse is something other than judicial, Maybe it's something other than the courts. Maybe the recourse has to be ultimately something that is political. Not every problem in politics is resolved by appeal to the courts. We accept this in the context of things like impeachment. Okay, if

Congress impeaches a president, he's just impeached. He can't appeal it to the courts. The courts are not the venue for deciding it. It's a political question. I think when it comes to core presidential powers defined for the president under Article two, the courts are just not an appropriate venue for disputing the legitimacy of what the president is doing and politics, the pressure of politics, of political accountability has to be the appropriate forum for checking what a

president does. I mean, we had over the course of like twenty four hours yesterday, Judge Charles Bryer, the brother of former of retired Supreme Court Justice Briar, Stephen Bryer. This is a federal judge who's the brother of a very liberal former Supreme Court justice. So this will this is Stephen Brier's brother, Judge Charles Bryant, who's a judge in a federal judge in the Northern District of California.

Newsom brings his lawsuit to challenge Trump's activation of the California National Guard, the idea being Trump didn't activate the National Guard through means of the governor. Ordinarily, the National Guard is responsive to that individual state's governor unless he is activated by the President ordering the National Guard to work through the governor. Now, the problem is, what is the significance of the statutory language requiring that the president

activate a national Guard unit through that state's governor. The governor doesn't have veto power over the president's action there. The President doesn't need to ask the governor for permission, And presidents have activated national Guard units in direct defiance of governors in the past. For example, I think President Kennedy did that against the wishes of the governor of Alabama to start integrating schools in Alabama. So the president

clearly controls here. And what did you have, Well, you had this bizarre spectacle over the course of the day yesterday that you have this hearing Judge Brier gets Judge Bryer, clearly a huge left winger, starts talking about it, gets

into this rhetoric. In the course of the oral arguments and during the hearing talking about the president acting like he's a king, which is just the standard textbook liberal you know, talking point right now, and he rules in favor of California and so that well, the President didn't order him to do it through the governor, and he got all hung up on that. And so here is the president wanting to stop a riot that is rioting that is specifically aimed at disrupting federal law enforcement from

doing its job. He wants to activate the National Guard to protect federal assets. This is clearly within the scope of his power. He's telling the military what to do,

and a federal judge is stopping him. We are like, honestly, there's the joke that people have said, well, you know, imagine we're in It's it's World War two and General Eisenhower tells Patten to move in over here, and a federal judge from the d C Circuit, from you know, the DC District Court says, hang on, is it quite legal for General Patten to move, you know, from Normandy into the Battle of the bult That's the level we're talking about, Like, should federal judges be interfering in like

the president ordering generals what to do moving military units. No, judges don't involve themselves in that. I mean, let's think of I can the thing of a more plausible scenario if you think I'm gonna being far fetched, all right? In the first Trump administration, the US government initiated a

targeted strike to kill Iranian the Iranian general Sulamani. What if they were initiating it and somehow word got out and someone tried to someone within the military, liberal within the military tried to file a lawsuit in the DC District Court to say this order has been initiated. I think it's I think this is an unlawful air strike, though, because Iran has not, you know, attack the United States and it's not within the president's scope of his power

to attack the bl blah blah blah blah blah. Maybe you can make some legal case that this is an air strike that would require an authorized use to military force to be passed by Congress first, that this particular air strike is not authorized, that it's not clearly within the scope of the authorized used to military force that was passed blah blah for the Global War on Terror or blah blah blah, blah blah. Is the president going to have to Look? You may think that a strike

like that is fair or unfair. I think it's really dangerous to start giving judges any role over deciding whether or not the deployment of anything military is a good idea. That shouldn't be up to that it should That is a question ultimately of politics, the people deciding if they want to go to war. I just think you're getting into this incredibly dangerous territory if judges are telling the

president what to do with the military. Now, over the course of yesterday you had again, this is Judge Charles Bryer from the Northern District of California, which, by the way, this was another classic bit of ridiculous liberal forum shopping. Here are these riots happening in Los Angeles. Where does GAVENUWSM file the lawsuit to challenge this or I guess, Rob Bonta, where do they file the lawsuit to challenge President Trump activating the National Guard? They don't do it

in LA. Why Well, because the various district courts sort of centered around the LA area, like the Central District of California, et cetera. They have a lot of Republican appointee judges, so Newsome slash Rob Bonta, they bring the legal challenge where in the Northern District of California, which is based in San Francisco, where the riots are not happening, They bring it in the Northern District California. Why because all of the judges in the Northern District of California

are Democrat appointees. So it was ridiculous little you know, forum shopping that if a Republican tried something like that, everyone would be, oh, this is really very troubling. This is a troubling manipulation of the legal system to attain a desired outfit, a desired outcome, this kind of blatant, forum blatant, politicized forum shopping. This is very concerning, and

no one will care when a Democrat does it. And that this is the utter hypocrisy of most left wing law professors is they genuinely do not care if Democrats do stuff like this, and they will only care about the problem of, you know, one federal district court judge

shutting down a nationwide policy. They will care about that if a Republican judge dares do that to a Democrat president, but they absolutely do not care about it in the context of Democrat appointed judges doing this to a Republican president. So Charles Bryer issues this temporary restraining order, which is an extraordinary I mean, so you have to issue a temporary restraining order is a very extraordinarily high bar that has to be met, which I think it's very difficult

to say that avenusom met that bar. The judge grants it and immediately his grant of a tro is stopped. An administrative stay is granted to his tro by the Ninth Circuit Court of Appeals, a pan of the Ninth Circuit Court of Appeals. So the way that works is this is the Federal District Court says, yes, President Trump, you have to stop with your activation of the California National Guard. The Ninth Circuit jumps in, it's appealed to

the Ninth Circuit and they immediately stay that TRORO. So thankfully the Trump administration got a good panel on the Ninth Circuit. So basically, the way this works is when you have a case decided at the federal District court level, it gets appealed to the Ninth Circuit Court of Appeals. But The thing is the Ninth Circuit Court of Appeals has like thirty judges on it. It's this enormous court and not it. You don't have it where all of the judges on the Ninth Circuit are all hearing the case.

You get a randomly assigned panel of three judges to hear the appeal. And so there are three judges. Judge panel was judges Bennett, Miller, and Sung. Bennett and Miller, thankfully are both Trump appointees. Sung is I believe a Biden appointee. But nonetheless, and it doesn't sound like Sung dissented from this the Circuit Court. I'll just read from their order. The court has released has received the government's emergency motion for stay pending appeal. The request for an

administrative stay is granted. So at the end of the day, the Ninth Circuit came in corrected what the rogue District Court judge did. But when we return, I just want to talk about the uncertainty that this all yields and the overconfidence in the courts that people both left and right seem to have. That's next on the Johns Already show. So over the course of the day yesterday, Gavin Newsome his lawsuit to stop President Trump's activation of the California

National Guard. He wins on getting a temporary restraining order to stop Trump from activating the California National Guard, and then immediately that injunction against Trump activating the California National Guard is stayed, is stopped by the Ninth Circuit Court of Appeal. So Gavin Newsom was able to crow for victory and then oh no, no victory by the end of the day yesterday. And there are some people who

would say, well, look that's the system working. You know, yes, you know, the district court judge gave a bad ruling, rogue federal judge, but you know, the Ninth Circuit stepped in and did the right thing. So that's fine, and the president's Article two powers were vindicated, so it's good. I don't think it's good. And this is kind of the point I made, one of the one of the points I made in the first segment, the idea. I mean, I'm glad the Ninth Circuit ended up where it ended up. Yes,

the President can activate the California National Guard. The California National Guard is part of the military. The president is commander in chief of the military. The governor of California is not in the chain of command, and the legal requirements for the President to activate the California National Guard through that state's governor is not. It's more of an administrative procedural thing. It's not like the governor of a state has veto power over the president's activation of the

National Guard. That that's not how that works. I think the problem is courts in themselves in this. In the first place, what should have happened was the Federal District Court should have said the operation of the military operation of the National Guard is within the ambit of the of the President's Article two powers, and it's not that the courts should not intervene in this. So I'm out.

It was not a question, I mean, but that's not where the judge again, this was Charles Bryer, Stephen Brier's brother, the former Supreme Court Justice. Stephen Brier's brother is also a federal judge.

way the system is supposed to work. I would say Adrian Vermuil, who's a law professor at Harvard, sort of an outside the box thinker of the right, if you will. I wouldn't call him a conservative thinker, but of the right. It's probably more accurate. He writes about this. If your reaction to this whole day's events is that quote the

process is working, you're missing the point. Any one of almost seven hundred district judges might intervene at any time to block anything the president does, even within the core of his Article two powers. The overhang of uncertainty and confusion about where power lies in our government is toxic in itself. Binga that that's the core problem here, that individual federal district court judges are encroaching more and more into stuff that the president at the core that the

president should be able to do. And it's frustrating to me that you have these conservative, sort of federalist society types, the guys writers like Ed Whalen, who who writes a National Review very often, who I respect in a lot of ways, but like he starts the day he does this, like live tweeting of the hearing in which Charles Bryer issued this ruling, and he starts by saying, there's no way that Charles Brower would would grant this, because you know,

this would be ridiculous and interfering in the President's Article two powers, and this would just be silly and and and of course it's exactly what Briar does. And it's this weird thing with federalist society types that like they've spent their whole lives chronicling how lawless left wing judges are, and yet they they constantly have this attitude of surprise that a judge does a left wing well because obviously that would not be the right thing to do, so

therefore this federal judge wouldn't do that. I don't know what it is if it's like these guys were all like hot shot superstar law students, and thus they all clerked for federal judges, So maybe they all sort of have this like outsized respect for federal judges that they're professionals who wouldn't do something silly, when like there's ample evidence that left liberal federal judges are lunatics and are hardened as much hardened political partisans as anyone in the

elected branches, and that they do crazy things all the time, and in fact, that the very position of being a federal judge means never having to say you're sorry, why because you can't get fired. Like that's the thing. Federal judges develop a kind of god complex a lot of them because they can't get fired. I mean, the worst that can happen is they get overturned by the circuit court above them. Oh oh darn, Like my life has

in no way been adversely affected by this. Like, federal judges have lifetime appointments, that's in Article three of the Constitution, that they serve during good behavior. It's a lifetime appointment and the only way they lose their job is if

they get impeached by the House of Representatives. So, yes, an individual federal district court judge in you know, the Eastern District of California working in the federal courthouse in Fresno, is appointed by the president and can only get removed if this individual federal judge is impeached by a majority of the House of Representatives and then convicted by a

two thirds majority of the United States Senate. And the only judges that that has ever happened to have been judges who are clearly taking bribes, clearly involved in serious criminal offenses. So these guys have lifetime appointments that they have no incentive to not act in a matter. If they're political partisans and they hate Donald Trump, they can what's to stop them from interfering? Someone just brings a crazy lawsuit. Oh, I don't think the presidents should be

able to use them tell the military what to do. Mmm, okay, Well find some phony, blowney legal rationalization for this. And yeah, the president is enjoyed from using the military in this like we're we're there, We're we literally saw it happen yesterday. It's an insane encroachment on the president's powers. And this, I think is a real genuine constitutional crisis that we're approaching.

If we get a federal judge who tells the president to not do something with the military, something really a federal court telling the president he can't do something that's really essential and really at the core of the military. Eventually the president is going to be forced, I feel, to tell a court, tell a federal judge, no, I am not complying with your ruling. That's going to be a constitutional crisis. Not the president sort of phony baloney saying he was going to comply in the whole Abrego

Garcia case. That's not great, that's not great compliance with a court order, while saying that you're trying to comply with a court order. Yeah, that's not great, but that's not a constitutional crisis. That's still the president acknowledging the authority of a court. If the courts get so extreme that they're bossing the president around about military stuff, that is going to be a real shake up of our whole political process. When we return. What do I mean

by constitutional crisis. Let me explain that in the next segment. This is the John Girardi Show. I keep saying this phrase constitutional crisis. If you know, if the courts keep stopping the president from doing things that are core presidential responsibilities, like we saw over the course of the day yesterday where a federal judge said that Donald Trump can't activate the California National Guard. I guess because he didn't activate it through the governor or something that the idea that

the government he needs to do that or else. The blah blah blah blah blah, even though this is something that's clearly within his core second our Article two responsibilities. Over the course of the day, basically the yeah, the district court judge say no, the president can't activate the National Guard under this circumstance, and then immediately that ruling

was stayed by the Ninth Circuit Court of Appeals. And I keep saying, I think we are headed towards a constitutional crisis where the president could be forced to disobey federal judges if they encroached too much on his Article two powers. What do I mean by constitutional crisis? What does anyone mean when they're saying this, Because this phrase has been used a ton over the course of the

Trump administration. A lot of the time this was used in the context of the Abrego Garcia case and some of these the case of some of the Venezuelans who were deported that you had this judge declare dramatically that the president is not allowed to deport some of these Venezuelans. And it seems as though the relevant federal agencies were taking off shortly within minutes after the judge gave that order, or that they were in the air while the judge

gave the order and didn't turn around. And so the left then tried to claim the Trump administration disobeyed a federal district court judge's ruling. This is a constitutional crisis. Okay, why what does that mean? Constitutional crisis? All right? What people mean when they say constitutional crisis is that it's a disruption of the sort of settled order that we have landed upon in America with courts, the weight of their ruling and the sort of obligation that rests on

goodwill of the president to obey the courts. Okay, so right now, the ordinary system of things is the president does something, if it gets legally challenged and a court tells the president you can't do that, the president obeys the court. Now, what's there to stop the president from not obeying the court? Let's think about that for a little bit. What is there to stop a president from not obeying a court order he doesn't like even a Supreme Court ruling. Something gets kicked all the way up

to the Supreme Court. The Supreme Court says, this policy that you've enacted is unconstitutional and you can't do it. I repeat, What is there actually to stop a president from just ignoring the Supreme Court? There's not a lot. The Supreme Court doesn't have guns. The Supreme Court doesn't

have a police force. They don't have an army. So if a president says is I'm not gonna do what you tell me, Supreme Court, the Supreme Court really doesn't have much ability to stop the president at like actual physical ability to stop the president. They can issue pieces of paper, but we don't have that in America. That's not how it works. Okay, the presidents don't ignore the Supreme Court. What do presidents do? They obey the Supreme Court? Why?

Because that is the constitutional settlement we have landed at. We landed at this settlement with judicial review and the Court's having the ability to engage in judicial review, and presidents have agreed to abide by it. But ultimately, let's remember who is you know? To follow the law. To enact the law is an executive function. You need the executive branch's job is to enforce the law. Supreme Court

can't enforce its own rulings. The president has to enforce them against himself when the rulings are adverse to him. So that is the established, settled order of things, and it's kind of this area that's a bit of a it's not a total gap in the Constitution, but it's a bit of a gap that we've sort of settled. This is the historical path that we've taken to keep the current order of our constitution, the written order and the stuff that's maybe not quite explicitly written in the

text of the Constitution itself. This is where we've landed, is that presidents obey rulings by federal judges. However, that settlement rests on the goodwill of the presidency. It rests on the goodwill of the president, the president sort of deciding that this is in the best interests of the country. Now, there are political pressures at play that help keep this

in check. If you had a president flagrantly disobeying the courts and refusing to abide by their rulings at a certain point, it could get politically quite damaging for the president. The House would initiate impeaching. At a certain point, the House could initiate impeachment proceedings. The Senate could convict a president and remove him from office. Those are not nothing burger considerations. You know, even impeachment can really tie up

and hose up a president for a long time. So it's not like there's nothing pressuring the president to follow a court order, but ultimately, at the end of the day he doesn't. It's not like there's a person with a gun at the end of the line who kind of forces you to do what the Supreme Court says. Who's gonna arrest the president if he doesn't obey the Supreme Court his own FBI. It's not gonna be a state police officer. They're not authorized for that. So that's

what I mean. So when people say basically what people are saying, meaning when they say start a constitutional crisis, they mean the president's refusing to obey court orders. That's what they mean. Now, I will say, you can argue that President Trump and his administration rather behaved poorly in not following district court orders about certain kinds of deportation

efforts they were doing. Again, they had the specific cases with flying people out and planes taking off minutes after the district judge gave his ruling, or planes that were in the air that didn't turn around when the district court judge gave his ruling and the question of did the Trump administration did President Trump blatantly disobey a federal

court ruling? Now, I think there's a difference though, between that case in which the Trump administration is trying to argue, yes, we did follow your ruling, but here are the circumstances of it that and you can argue whether those rationalizations are bs or whether they're true. The important overriding thing, though, is that Trump administration acknowledging the authority of the court. The Trump administration is not refusing the authority of the court.

They're not saying this court has no authority to tell the president what to do with deportations, and we will not and we will not listen to the court when they tell us what to do. That isn't happening. The Trump administration has not done that at any point. Right now. You can say that their compliance with court orders has been inadequate, dreadful, less than full, but they are still acknowledging the power of the court, it's not precipitating this

level of genuine constitutional crisis. What I am saying is that when you have district court judges telling the president he can't do something he wants to do with regards to the military, at a certain point, you're gonna get a district court judge trying to stop the president from doing something with the military in a way that could interfere with some really key foreign policy goals, could maybe

put people at risk of getting killed. And at a certain point, if this keeps up, if federal judges keep acting in this unrestrained way and they have no restraint again, you know, we talk about incentives and who's gonna stop you. Who's gonna stop these federal judges. They have lifetime appointments. Charles Bryer, who issued this temporary restraining order to stop the Trump administration from activating California National Guard, he's gonna

suffer no consequences from this whole thing. He'll get overturned by the Ninth Circuit. Ah Okay, he goes back home to his very nice house, drives in his very nice car, living his very nice federal judge lifestyle. He'll get feded and whined and dined at a law school and give speeches and make a very nice salary. Yeah, he's fine. He will suffer no consequence from this. He is at no risk of getting fired. And I think the something

has to give. Either the Supreme Court has to do something to limit or Congress has to do something to limit the jurisdiction of district courts, or this is just going to keep happening, and at a certain point it's going to launch a constitutional crisis of a president saying I am not going to follow what this court says. We've not gotten to that point. As much as liberals

were crowing about that. When with the whole case about the airplane flights for deporting the illegal aliens and did Trump disobey that order, the Trump administration was still acknowledging the authority of those courts to issue those orders. What I'm saying the genuine constitutional crisis is what if you get to a point where the Supreme Court is issuing a ruling and the president is saying I will not

follow it. That's the problem, and I think it could be more the fault of the courts than it will be of whatever president does. That if the courts continued this intrusion into Article two, into stuff that is clearly Article two stuff. When we return, Senator Padilla's insane. He is insane level of do you know who I am? This next on the John Girardi Show. So, California Senator Alex Padilla, Well, he's a US Senator representing California. Alex Padilla,

one of our two US senators. Boy, we've really fallen from the days of Feinstein and Boxer, where everyone knew who Diane Feinstein Barber Boxer is. I bet most of you could not name California's two US senators. It's Adam Schiff and Alex Padilla. So Alex Padia tries to bust into and disrupt a Christi Nome press conference. Christie Nome's having a press conference talking about immigration stuff. Alex Padia bursts in and tries to disrupt it, and security basically

it's like, hey, you can't do that. You're not supposed to be disrupting this press conference, and they forcibly take him out of the room and he's like fighting with these guys and struggling, and he's like so mad, and it's like this is the violence of the Trump administration. It's like, well, no, it's not the violence of the Trump administration. You broke into someone's press conference and we're

disrupting it. They asked you to leave, you didn't leave, and then you so we forcibly brought you out of it. This Do you know who I am? I'm a United States Center. Oh I don't give a crap a United States Center. If you're at a press conference you're not supposed to be at and you're disrupting it, then you need to go. And Newsome's like, oh, this is a horrible thing. Alex Padilla is one of the most decent men I know. Oh maybe he's a very nice guy. I don't know, but uh yeah, if you disrupt a

press conference, people are gonna ask you to leave. And he disrupted a press conference, and they asked him to leave and he didn't leave, And so people get past the point of asking you to leave, like this is not a complicated story, and the idea, oh this jet another instance. This is Alex Badilla wanting to get some portion of like the recognition Newsom's getting for opposing Trump and all this all right, that'll do it. John Girardi show see you next time On Power Talk