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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: You know what? I'm really good. Do you know why?
J. Aughenbaugh: Why is that?
N. Rodgers: Because today is the anniversary of Miranda. It is the anniversary of the Scots Miranda decision. We are doing in the news today, which is special. We don't usually do those in the summer, not because there's not news in the summer, but because usually both of us are asleep. We are in our hibernation phase, and we don't care about what happens in the summer as much, although right now, summers interesting, isn't it?
J. Aughenbaugh: Quite interesting, yes.
N. Rodgers: But this is the anniversary, 1966 of the Miranda Scots decision, which was 54 and said that you have to tell people that they have the right not to talk to you, that they have the right to a lawyer, and that whole thing that almost everybody has ever seen on any Law and Order episode, that all happened on this anniversary, which is June 13. That's the day we're recording this episode. It's not about Miranda, by the way, in case you were wondering listeners. This is actually about the National Guard visiting LA on a tour of LA, I assume. They're going to the Walk of Stars, and the walk of fame, and they're going to Grauman's Theater, and they're going to the big Hollywood sign.
J. Aughenbaugh: They're going to swing by to the Hollywood sign.
N. Rodgers: They're going to go to 90210, this is the only zip code that everyone in the country knows because of the show.
J. Aughenbaugh: Then they might go to.
N. Rodgers: Is that what they're doing?
J. Aughenbaugh: They might go to Chavez Ravine, where the Dodger baseball stadium is.
N. Rodgers: The Dodgers. That's right. Your beloved New York team that decamped for LA.
J. Aughenbaugh: Well, No. I'm a Yankees fan.
N. Rodgers: That's right. You're Yankees fan. You're fine with them leaving.
J. Aughenbaugh: The only dodger used to be Borklin. The Yankees are from the Bronx.
N. Rodgers: My bad.
J. Aughenbaugh: But no, the episode listeners, this episode looks at something extraordinary that happened about a week ago. That was when President Trump basically ordered, first, 2000 California National Guard members and then an additional 2000 the following day to LA to put down protest which arose over immigration and customs enforcement raids in that city. Now, Trump then also ordered subsequently 500 Marines. A number of questions, Nia, arose on what authority might a president order the National Guard?
N. Rodgers: By the way, the Marines were not from Camp Lejeune.
J. Aughenbaugh: No, they weren't.
N. Rodgers: The president is mistaken about that. He thinks they came from Camp Lejeune. They actually came from, I think, one of the California that's out in the desert. I'm sure they were Sweet. We can go to LA. They probably all go to LA on the weekend anyway.
J. Aughenbaugh: Or Vegas.
N. Rodgers: Right, because it's equidistant, probably. But can we state for the record, we are not talking here about, should this happen? We are not talking about the ethics of this question. What we are talking about is, can this happen? Can a president do this and under what authorities and under what authorities is the other side crabby about this. But first.
J. Aughenbaugh: We're not talking about whether or not that this is good policy.
N. Rodgers: That's not the discussion at hand.
J. Aughenbaugh: No. The question that has been posted.
N. Rodgers: It's not what we're here to do.
J. Aughenbaugh: The question that got posed to Nia and I is basically, does Trump have the legal and constitutional authority to do this or reversal?
N. Rodgers: As many times as is asked about this particular president. Can he do that?
J. Aughenbaugh: Yes.
N. Rodgers: We get that a lot on a lot of different topics.
J. Aughenbaugh: Topics.
N. Rodgers: We probably should start a second podcast called Can he do that?
J. Aughenbaugh: In an update in regards to the sequence of events, we had decided we were going to record this episode as Nia pointed out on Friday, June 13. Last night Thursday June 12, a federal district court judge, Charles Breyer, and if Breyer sounds familiar, yes, Charles Breyer is the brother of the former Supreme Court Justice Stephen Breyer.
N. Rodgers: Wonder of heats entire apples. No, wait, that's Sutter. Never mind.
J. Aughenbaugh: That was Sutter.
N. Rodgers: That was Sutter. Never mind.
J. Aughenbaugh: But Breyer, Federal District Court Judge Breyer issued a temporary injunction indicating that Trump had neither the legal or constitutional authority to federalize the National Guard. In the wee hours of this morning, Nia, the Ninth Circuit Court of Appeals stayed Breyer's injunction to allow the Trump administration to appeal.
N. Rodgers: In fairness, didn't Breyer also stay his injunction? Didn't he say, but that won't go into effect until 3:00 P.M tomorrow so that the Trump administration has time to complain, and then the ninth said, that's not enough time to complain.
J. Aughenbaugh: Yes.
N. Rodgers: We're going to stay. Like, even Breyer knew there was going to be pushback from the Trump administration.
J. Aughenbaugh: Let's face it, folks. I'm going to go ahead and perhaps do a spoiler alert at the end of this episode.
N. Rodgers: Could rest of the next 3.5 years of Donald Trump's presidency? Whenever he gets told no, he's going to.
J. Aughenbaugh: For those of you who don't want to listen for the entire episode, the likelihood this is going to end up in front of the Supreme Court is really high.
N. Rodgers: Yeah, too long didn't read. They're going to end up in front of the Supremes, and John Roberts is going to be like, I just want to finish for the summer and go home.
J. Aughenbaugh: Yes. I am hypothesizing here, Nia. The reason why I think this is going to end up in front of the Supreme Court is that the Trump administration has made it very clear that the deportation raids in LA are the first in a series of deportation raids that are going to be occurring in large cities across the United States. Many of those are going to be in states that are controlled by democratic governors and state legislatures or in cities like LA that are controlled by Democrats.
J. Aughenbaugh: Okay?
N. Rodgers: Even in Republican states, major cities are often Democratic leaning or Democratic controlled because that's how cities versus rural areas work. Chicago, for instance, comes to mind. Chicago is itself a pretty democratic, whereas the rest of Illinois is more rural and more conservative.
J. Aughenbaugh: Or think about my home state, Nia, or even in your home state in North Carolina, the large cities.
N. Rodgers: Raleigh is a Democratic, but the places where my mom lives out in the country, oh, heck no.
J. Aughenbaugh: Yes.
N. Rodgers: That's all Trump and Republican.
J. Aughenbaugh: But the heart of this dispute, listeners, is the fact that the National Guard occupies a very unusual space.
N. Rodgers: I was going to say weird, but unusual is much better.
J. Aughenbaugh: In American public policy.
N. Rodgers: Just what is the National Guard?
J. Aughenbaugh: It's a reserve force of the United States military that can be called on by state governors or the president to respond to domestic emergencies and participate in overseas combat and civilian missions.
N. Rodgers: National Guard can actually be sent to war zones in other places and is, in fact, done on a relatively regular basis to give regular troops rest and break.
J. Aughenbaugh: Yes.
N. Rodgers: You have to move troops in and out of war zones because people can't just stay at war forever. Your nervous system can't handle that. People need to be moved in and out of those situations.
J. Aughenbaugh: They are often replacement forces, as Nia points out, in wars, they played a very prominent role in wars like World War I, World War II, the Korean War, the Vietnam War, etc.
N. Rodgers: Don't be thinking they're not trained and that they are not able to use military grade. They're military grade.
J. Aughenbaugh: Yes.
N. Rodgers: They are not weekend warrior people. They're not like those militias of people who gather on other people's farms, and they're out of shape and they don't know how to do all that stuff. They know how to do. National Guard is not playing. They know how to do all the things that regular military do. They are regular military.
J. Aughenbaugh: The National Guard predates the United States Department of War, which was part of the US Constitution. The National Guard as a ''citizen force'' existed as far back as 1636.
N. Rodgers: Yike.
J. Aughenbaugh: For instance, the Massachusetts colony created a National Guard, to respond to Native Americans.
N. Rodgers: I guess it probably wasn't called National Guard.
J. Aughenbaugh: No.
N. Rodgers: It was probably called the Massachusetts Guard.
J. Aughenbaugh: Or the Massachusetts militia.
N. Rodgers: Militia.
J. Aughenbaugh: Which is where we oftentimes confuse what you just mentioned, militias, with the National Guard. Many members of militias are like, well, this is part of a tradition that goes back to the colonies. I'm like, but militias then were sanctioned and ratified by colonial governments. You guys are operating outside of government, and in fact, you usually have a whole bunch of bones of contention with any level of government.
N. Rodgers: Militias now are decentralized groups of people who work together for common cause or who work together for believing, common belief.
J. Aughenbaugh: The National Guard today, Nia, has over 400,000 personnel. They exist in all 50 states, the District of Columbia, and four of the territories. See our previous podcast episodes about the territories. Typically, Guard members hold civilian jobs and they maintain part time military training.
N. Rodgers: They go once a month, don't they generally?
J. Aughenbaugh: Typically, yes, once a month.
N. Rodgers: For one weekend a month they go for two or three days. Most people's jobs are fine with you belonging to the National Guard. That's considered a service.
J. Aughenbaugh: One week either during the summer or the winter.
N. Rodgers: It's a week long training thing? Got you.
J. Aughenbaugh: Where we typically see the National Guard employed domestically is disasters.
N. Rodgers: Disasters.
J. Aughenbaugh: Yes. Natural disasters, labor strikes.
N. Rodgers: That's the first thing we do in a natural disaster is we're like, where's National Guard?
J. Aughenbaugh: For instance, if you live in a state like Nia and I do, Virginia, which at near the end of the hurricane season, we'll be in the pathway of any number of named hurricanes, you will see the governor of Virginia, currently, Glenn Younkins who will go ahead and put the National Guard on alert, and we see this a lot.
N. Rodgers: It's I'm ready to be called out. In fact, the National Guard were who were called in for Katrina.
J. Aughenbaugh: That's right. Well, no, not the National Guard, because President Bush 43 wanted to send in the National Guard. The governor of Louisiana, Blanco, said, ''No, I will decide whether or not the National Guard will be employed. Instead, Mr. President, I want you to send in military.
N. Rodgers: That's right.
J. Aughenbaugh: Yes.
N. Rodgers: His name escapes me. Fabulous. Anyway.
J. Aughenbaugh: Are you talking about the head of FEMA, Michael Brown?
N. Rodgers: No, I'm talking about the colonel who was on the ground.
J. Aughenbaugh: I can't remember his name.
N. Rodgers: He's marvelous accent. He's from the area, and he actually knew. Anyway.
J. Aughenbaugh: Yes. The other thing I wanted to mention is the Guard is uniquely placed as both a state and a federal force. This is in the Constitution. For instance, Guard units can be called on to preserve public safety, and also can be deployed, as we've mentioned before, for American forces abroad.
N. Rodgers: Sorry. Please forgive me. He's not a colonel. General Honore, is who I was thinking.
J. Aughenbaugh: National Guard soldiers typically serve in their home states. They live at home, and they usually hold private sector jobs, etc. By the way, I misspoke a few moments ago. I said that they have a one week annual training program. Actually, it's two weeks. Typically, their private sector employers, are very good at allowing them the flexibility to participate in the National Guard. Now, where things get really confusing, if what we just described as not already confusing, is the National Defense Act of 1916. This is a law that got passed just as Europe was entering into World War I. Congress passed this law after the Germans sank the Lusitania.
J. Aughenbaugh: And the National Guard was basically given a mandate by Congress to increase in standardized training. The federal government added funding; in fact, greater than 50% of the National Guard's funding comes from the feds.
N. Rodgers: Oh, I didn't realize that.
J. Aughenbaugh: Yes.
N. Rodgers: Paid for by the federal government. Oh, which is rest.
J. Aughenbaugh: Then you have annual inspections, and you have the requirement of passing fitness and eligibility tests.
N. Rodgers: We have a colleague at VCU who wanted to join the National Guard at an advanced stage, and by advanced age, I mean 40. Not super advanced. But the military doesn't generally do that unless you can pass like 1 trillion exams, physical and mental. He passed all that, and he did all that says a lot about him as a person because he wanted to serve in the National Guard. But they have all these, it's not an easy thing. You can't just, Oh, today, I'll join the Guard. It doesn't work like that. You have to meet the same qualifications as you would have to meet if you were going into the military.
J. Aughenbaugh: Let's get into a brief history about usage of the National Guard. Nia and I just pointed out, National Guard frequently gets called in to helping out with war efforts. World War I, the National Guard had a prominent role in fighting in the major battles after the United States got involved in that war. A rather prominent example is Harry S. Truman, who would eventually become president, served as a captain in the Missouri National Guard, and fought at Argonne in France in 1918. The Harlem celebrated hell fighters were a group of Black guardsmen. They received medals from the French.
N. Rodgers: Oh, the war cross, the cross the war.
J. Aughenbaugh: World War II. FDR called up the National Guard for a year of training, and they actually participated in some of the major battles of World War II. Now, most presidents have been extremely cautious about calling up the militia for civil disturbances. That was particularly the case during the 19th century when, for instance, the North versus the South dominated American politics. However, post World War two, at different times, presidents Eisenhower, Kennedy, and Johnson federalized the National Guard to enforce the expansion of civil rights into a sure public order.
N. Rodgers: Were they the people who were sent in to help desegregate schools?
J. Aughenbaugh: Yes, Eisenhower did. Yes. Against Arkansas governor Faubus, who was just like, over my dead body, are we going to desegregate Arkansas schools?
N. Rodgers: If you put it like that.
J. Aughenbaugh: George Wallace, the governor of Alabama, did not want the National Guard called up to protect the freedom fighters who are coming down to Alabama to register Black Americans so they could vote. We also saw this, for instance, LBJ called in the National Guard for the riots that ensued after Dr. Martin Luther King Junior's assassination in 1968. I also thought it was interesting.
N. Rodgers: Oh, those were in Detroit, weren't they?
J. Aughenbaugh: Yes. I also thought it interesting that Nixon called up the National Guard when postal workers in New York City in 1970 went on strike.
N. Rodgers: What were they supposed to do?
J. Aughenbaugh: Well, apparently, there were a whole bunch of New Yorkers who were displeased that they were no longer getting their mail, and they were planning protests and attacks on United States Postal offices in New York City. Nixon went ahead and federalized the National Guard in New York to protect post offices. Yes.
N. Rodgers: What about LA? Surely LA has seen.
J. Aughenbaugh: Yes.
N. Rodgers: Its share of National Guard showing up going, everybody calm down.
J. Aughenbaugh: In 1992, after the Rodney King verdict, where the police who were video recorded beating up Rodney King were found not guilty. There were riots in LA. The mayor of LA, who was a Democrat, Tom Bradley, and the Republican governor, Pete Wilson, asked the first President Bush to send in the National Guard. But again, there you had a governor and a mayor who asked the president.
N. Rodgers: For help?
J. Aughenbaugh: Yes.
N. Rodgers: LA was on fire. But LA was bad. There's a famous clip of a truck driver being pulled from his truck and beaten considerably by the crowd because the crowd was extraordinarily angry over that verdict.
J. Aughenbaugh: That's right.
N. Rodgers: They were like, If we film it and it still doesn't get the verdict, what else can we do? If I may make a short aside here, the problem with riots is that they almost always start for a good reason. Something has happened that has led people up in a way that they really feel is unfair. A thing that is happening is unfair. But the problem is that they almost always immediately get out of hand to property destruction and violence with bystanders and innocent bystanders. It almost always mushrooms into a bigger, worst thing because one, mob mentality. You get a bunch of people together, and they're all riled up and they're all frustrated. There's that. There's also people who join these things for the purpose of setting things on fire, flipping things over, knocking people down because they like that excitement. Then there are the small number of people who join these things to loot because they enjoy the active looting. They enjoy the active-
J. Aughenbaugh: Well, hey, it's a great diversion.
N. Rodgers: Exactly. They're off doing all these things. I can break this glass and take a TV I've always wanted, or a jewelry, or whatever.
J. Aughenbaugh: If you're already frustrated.
N. Rodgers: You already feel the system is unfair, and you already feel that you are on the outside of the system. I can understand a governor or a mayor saying, Whoa, we need help. This goes beyond what our police force can, and in that situation, the police force was also probably not in a good position to do any riot control, considering they were part of the whole reason to start with.
J. Aughenbaugh: Their behavior is part of the reason why you actually had the riots. Now, we also talked about it in 2006. Hurricane Katrina.
N. Rodgers: I messed that up. Sorry.
J. Aughenbaugh: No, but you raised a good point because President Bush got asked almost immediately, Was he going to send in the National Guard? And he contemplated federalizing the National Guard. But the governor of Louisiana, Kathleen Blanco, opposed it. Her response was, and she said this to a Senate committee, " That the proper way to do business would be for me as governor to retain control of the National Guard and for Bush to simply send troops in." Again, this is part of the tension: who controls the guard? Most governors are willing to go ahead and cede control of the guard if the guards being used where Nia? Overseas for war.
N. Rodgers: Sorry.
J. Aughenbaugh: But if we're talking domestic, now we got federalism concerns.
N. Rodgers: They want states control over-
J. Aughenbaugh: That's right. Again, all arises because of the unusual, if you will, space that the National Guard occupies.
N. Rodgers: Who do they work for?
J. Aughenbaugh: That's right.
N. Rodgers: It's serving two masters in the sense of you work for the governor theoretically, but if you're being paid by the federal government, then presidents probably often feel like they have the right if they see something happening and they think the governor or the mayor is not acting quickly enough or not acting appropriately, that they feel like they should step in. Part of that is because almost nobody remembers Kathleen Blanco's name except Aughie, who was in charge of the degree-granting program of Homeland Security and emergency preparedness at VCU. But most people don't remember Kathleen Blanco, but they remember President Bush.
J. Aughenbaugh: Yes.
N. Rodgers: He will carry the blame for that longer than she will because her name won't be remembered to history the way his will. Some presidents, that's part of it is that they're like, this is happening on my watch, and I'll be the one whose legacy will be tarnished by this.
J. Aughenbaugh: I've read a number of biographies of President Lyndon Johnson. He received quite a bit of criticism for sending in the National Guard when he did. But his response was, nobody is going to remember who was the mayor of Detroit after MLK was assassinated. But they're going to remember that it was during my presidency and I couldn't leave or let a city like Detroit or Newark or whatever city burn because I could. I had a responsibility.
N. Rodgers: I'm not sure that I agree with Governor Blanco's view that it would be better to send in federal troops.
J. Aughenbaugh: Then there was a bunch of criticism when Bush did that because, again, federal troops in many instances are designed to go ahead and focus on keeping the peace. They're not designed to go ahead and help people get water, get food, find shelter, etc. Military personnel are trained to win wars. That's their purpose. Provide national security and win wars. They're not necessarily designed to go ahead and say, well, this entire neighborhood has been wiped out. Let's go ahead and make sure that they have shelter, water and food.
N. Rodgers: More Red Cross than troops.
J. Aughenbaugh: That's what FEMA is supposed to do the last time I checked.
N. Rodgers: Exactly. Well, we'll see what happens with FEMA. But yes.
J. Aughenbaugh: Let's go ahead and talk about the conflict on legal and constitutional grounds. First up, on what authority might the president federalize the National Guard? Well, there's a bunch of justifications. First, Nia, let's go to the, if you will, source governing document.
N. Rodgers: Let's go to the Constitution.
J. Aughenbaugh: Yes.
N. Rodgers: He is the commander-in-chief.
J. Aughenbaugh: That's right.
N. Rodgers: He's the commander-in-chief. It's his job. Tell me which article?
J. Aughenbaugh: This would be Article 2 of the Constitution. Yes.
N. Rodgers: Thank you. Article 2. I never want to guess the articles I will always get them wrong. Unless I guess three for the courts. But anyway, one of the things that we say with a commander-in-chief is, hey, go out there and command staff. Go out there and be in charge. You're the guy in charge. Go be in charge of things. We are recording this the day before we are having a national military parade for the first time in the United States. Which will be very much a showing of the idea of commander-in-chief and what it means to command the military, to command the defense forces of the United States.
J. Aughenbaugh: That's correct. We have the Constitution, but then we have a couple of laws. One was a law passed in 1807. Right now, a whole bunch of my current and former students are rolling their eyes because they're like, 1807. That's like a long time ago.
N. Rodgers: It is a long time. That's 200 plus years ago.
J. Aughenbaugh: The law in question is the Insurrection Act of 1807. This Act allows the president to use the military to suppress insurrection and also provides broad authority to address situations where the president is unable to enforce federal laws with regular forces. Interestingly enough, the Trump administration here to four, and they may change their mind when they get into court.
N. Rodgers: I want to really hear this episode.
J. Aughenbaugh: Well, they might.
N. Rodgers: We know all kinds of interesting people listen to this episode. We like all of them.
J. Aughenbaugh: I say this tongue in cheek, but we end up finding out a whole bunch of other people around the world listen to this podcast, and we're like, really?
N. Rodgers: Welcome. We welcome you.
J. Aughenbaugh: Yes, we do welcome you. Heretofore, the Trump administration has not relied upon this law.
N. Rodgers: I have a theory about that, and it has to do with January 6th. I think that Donald Trump wants to avoid the use of the word insurrection because it was applied to January 6th, 2021, whatever you want to call that that happened at the Capitol. It is applied to that on a regular basis.
J. Aughenbaugh: The question that arose Nia was, why did Trump not federalize the National Guard that existed in DC to stop that?
N. Rodgers: I suspect that there is an avoidance of the I word, as it were, attempting to avoid insurrection.
J. Aughenbaugh: He has specifically mentioned the fact that in Chapter 10 of the United States Code, Section 12406, the president can order the National Guard into federal service, including when the United States is invaded, there is a rebellion or the president is unable to execute federal laws with regular forces.
N. Rodgers: Which ICE falls under federal laws. If ICE is unable to do their jobs then the president is unable to execute federal laws with regular force, meaning with ICE agents. Then he can bring in extra agents or extra agencies to help. That is probably a stronger.
J. Aughenbaugh: Legal justification.
N. Rodgers: Title to use is Title 10.
J. Aughenbaugh: Yes. Now, there is a potential, if you will, limiting law here, Nia, and that is the infamous Posse Comitatus Act.
N. Rodgers: Don't put limits on Donald Trump. I was just kidding. What is Posse Comitatus? Sounds Latin.
J. Aughenbaugh: Well, this was a law that was passed after the Civil War and it was designed to restrict the use of the military for domestic law enforcement purposes. This arose out of the fear that many Southern states had after the Civil War that union troops would be forever placed in Southern states to keep them down. Now, the problem with the Posse Comitatus Act, which has this general prohibition, is that it also acknowledges the Insurrection Act allows presidents to circumvent the restriction in certain situations. What I thought was really interesting in my research, Nia, is that even the very liberal Brennan Center for Justice and a number of legal scholars who I consulted argue the Posse Comitatus Act probably has no bearing on this situation. We may want it to, but it has so many, excuse the expression, this is an academic expression, so much weasel language that would allow a president to go ahead and say, yeah. But I'm trying to enforce immigration law here, and these communities and these states are hindering my ability to, if you will, to take care to faithfully execute federal law.
N. Rodgers: Wait, first of all, we didn't state that for the record. Right now, California is not thrilled by this. California is taking the Blanco approach of no, as opposed to other approaches which might be like yes, we welcome your intervention. Gavin Newsom, who is the current governor of California, Ms. Bass, who is the current mayor of Los Angeles, neither one of them are excited to have National Guard troops or federal military troops or the Marines in LA. Their first argument, I think, is it's not that bad. You need to take a step back. From just the straightforward point of view, they're saying it's not bad enough to warrant. That's their first, I think, argument it's not that bad.
J. Aughenbaugh: In terms of policy and political optics, both the governor and the mayor have gone ahead and said, things weren't bad. Trump is escalating this for political purposes.
N. Rodgers: He's making it worse by sending these people here. We were doing fine without that. Although one could argue that may or may not be accurate. Donald Trump would argue that's not accurate, and he has seen things on television that would show him that there are some bad actors involved in this.
J. Aughenbaugh: Constitutionally, Governor Newsom is relying on the 10th Amendment. It was somewhat persuasive for District Court Judge Breyer, was that historically, law enforcement and police powers reserved to the states. If there are protests going on in LA, then it's the responsibility of the state of California deal with the problem, not the federal government. By the way, if this case ever got to the Supreme Court, I could see that argument actually resonating with at least two of the more conservative Supreme Court justices, Clarence Thomas and Neil Gorsuch, both of whom are generally skeptical of broad-based federal government power assertions.
N. Rodgers: Theoretically, all the people who are about states' rights, a lot of the Conservative Republican Party who are about states rights, should actually be on the side of Gavin Newsom, which probably makes them want to take a shower. But strange bedfellows. That's what cases cause is strange bedfellows.
J. Aughenbaugh: In regards to Chapter 10 of the United States Code, California's claim is the federal law requires a president to consult with and get a state's approval before ordering the National Guard within a state to active service.
J. Aughenbaugh: According to Governor Newsom, President Trump merely calling him on the phone and saying, "I don't like what I'm seeing on TV and I don't like what I'm hearing in regards to ICE agent's experience in serving out these deportation raids." According to Governor Newsom, that was not consultation, and he certainly did not give the president approval. The problem for Governor Newsom is we have precedents of presidents federalizing the National Guard without governor approval.
N. Rodgers: You earlier mentioned it with Wallace and Johnson. George Wallace was segregation now, segregation, what is it? Segregation before, segregation today, and segregation forever. Something like that. I can't remember exactly what he said because he's George Wallace. But it was something along those lines, and Johnson was like, sorry, can't hear you over the sound of me sending National Guard troops into Alabama to fix this.
J. Aughenbaugh: I can't hear you, Governor, when I hear the helicopters.
N. Rodgers: Chop, chop, chop, trying to fix it.
J. Aughenbaugh: Again, this occurred in 1965. Johnson federalized the Alabama National Guard to protect civil rights activists. By the way, Eisenhower called up the Arkansas governor before he federalized the National Guard, but he didn't get approval.
N. Rodgers: Johnson may have called George Wallace, he wouldn't have gotten approval, either. Johnson was also the kind of guy who would say he called somebody, even if he didn't. He was that kind of guy. I'm not saying he would lie, I'm just saying he would say, I called him, he told me he didn't want me to do it because he knew George Wallace did not want him to do it. Gavin Newsom similarly would never have given permission to Donald Trump. Donald Trump knew that, and he decided to do it anyway. If there's precedent, sometimes the Supremes are like, we're staying out of that, that's not.
J. Aughenbaugh: This leads me into, if you will, just some rudimentary analysis. One, Nia as you just pointed out precedent. I could see a whole bunch of justices, including Chief Justice John Roberts saying, this is a political question, we're not getting involved. We're going to rely upon that rule of justicability that says, the political branches should work this out, we're staying out of this mess.
N. Rodgers: What they would say is the way that you could fix this is that you could go into Title X into that subsection and you could make a law that clarifies that permission must be granted in writing 24 hours ahead of time, whatever. Congress could fix this.
J. Aughenbaugh: Yes.
N. Rodgers: Which the courts, on a regular basis, tell Congress how they can fix things and then they walk away?
J. Aughenbaugh: Yes. On the other hand, if they actually ruled on the merits of this case, this is a really tough call for the federal judiciary.
N. Rodgers: Who is right here?
J. Aughenbaugh: Because the National Guard.
N. Rodgers: Property owners would say, Donald Trump is protecting our property from bad actors, and we want that to continue, and Gavin Newsom is not giving us the protections that we need.
J. Aughenbaugh: Any protection. That's right. The National Guard, again, is a strange hybrid government agency. Civilians who live and work within a state under state authority, but it's also formed by the federal government and can be utilized by the federal government in various capacities. If you like nice, neat, clean, flow chart lines of authority.
N. Rodgers: This isn't it. This will make you cry. The thing is it's weird because both sides want the same thing, which is both sides want the laws to be followed, and they want people to be protected. But it's who they want protected different.
J. Aughenbaugh: Different. That's right.
N. Rodgers: You get this weird tension of the people who are protesting civilly and legally and the thousands of people who are doing that, everybody agrees, they're not the problem.
J. Aughenbaugh: Yes.
N. Rodgers: But it's what do we do about the bad actors? The governor is saying there's not that many and the president is saying there's enough to merit something here. How does the court rule on that? How does the court rule on who's right?
J. Aughenbaugh: Nia, as you pointed out, I could see a whole bunch of federal judges saying, well, the presidents have historically infrequently used the National Guard, but it has happened. There is precedent where this has occurred. California is actually making legal and constitutional arguments that ironically enough were used all the time by states controlled by Republicans to thwart Biden and Obama Administration efforts to impose, if you will, federal requirements on states. Again, I find myself in this odd position of saying, wow. You use the expression strange bedfellows. Public policy and politics creates strange bedfellows because you got the Attorney General of California who's making a 10th Amendment federalism states rights argument.
N. Rodgers: That would be easily welcomed in Texas.
J. Aughenbaugh: Depending on a different policy issue. Yes.
N. Rodgers: If he was saying that, for instance, about abortion and the control of abortion in a state, Texas would be like, yeah, he's making the right argument. Which means that when it does make it to the Supreme Court, it is going to be a tough thing for them to deal with.
J. Aughenbaugh: Because I could easily, for instance, Nia, see a bunch of Supreme Court justices say, hey, the 1916 law was so vaguely, ambiguously written that we're not going to decide this. Congress needs to go ahead and clarify which level of government has the authority to do X.
N. Rodgers: But we could also see Thomas, Gorsuch, and Alito coming down on California's side.
J. Aughenbaugh: Simply because of federalism.
N. Rodgers: Which makes them probably have a nervous breakdown. Exactly. Saying, well, state is rights, they have the right to say when they do and don't want. It's going to be really interesting. It's an interesting thing to watch. What we would like to end the podcast with, if we could, if you are listening to this and you are protesting these days, we would like you to please adhere to the law while you are protesting. As much as you are able to do so, please do so and be safe. Please be safe because tensions are running high, and it's the summer, and all your feelings are expanded in the summer because of heat, because of.
J. Aughenbaugh: Humidity.
N. Rodgers: Storms and everything else, and the political climate, in general. Please, please be careful and please take care of yourselves. We wish for no one to be hurt on any side of this. We don't want the National Guard to be hurt, we don't want the protesters to be hurt, we don't want the ICE agents to be hurt. ICE agents, while Aughie and I may or may not disagree with what's happening with ICE agents, they're federal agents doing a job.
J. Aughenbaugh: Chances are they didn't make the decision.
N. Rodgers: That guy in that job did not make the decision about who or what or where or when, he got an order, and he's following his order. Let's keep that in mind that they are human being. That everybody you're involved is a human being and all of their lives are sacred, everybody. All the people involved. The other thing is, and there's a meme right now, if you are arrested, we are not going to say what they said on the video because what they said on the video uses the F word, and we don't use that on this podcast. But we are going to suggest strongly that you don't say anything until you talk to a lawyer. If you are arrested in any circumstance for any reason, the first words out of your mouth need to be, I would like to speak with a lawyer, and then I refuse to answer any questions until I can speak to a lawyer. That is all you should say.
J. Aughenbaugh: Which brings us back to the beginning of the podcast where Nia recognized the anniversary of the infamous supreme.
N. Rodgers: Of the Miranda.
J. Aughenbaugh: Of the US Supreme Court a ruling in Miranda v. Arizona from 1966.
N. Rodgers: Yes. Please, please, please, don't say anything. Talk to a lawyer.
J. Aughenbaugh: Talk to a lawyer. There are language limits on this podcast because otherwise, there are a whole bunch of my former students who might be listening to this podcast who are like, Professor Aughenbaugh, you used a different expression in class. Yes, I did, but I can't use that expression on this podcast. But anyways, Nia, thank you very much.
J. Aughenbaugh: Thank you, Aughie.