WEBVTT 1 00:00:00.120 --> 00:00:05.200 In all the excitement over the Israeli airstrikes against Iran, 2 00:00:06.320 --> 00:00:09.839 some stuff got lost in the shuffle, which is the 3 00:00:10.439 --> 00:00:15.039 ongoing court fight between Donald Trump and Gavin Newsom over 4 00:00:15.039 --> 00:00:20.760 whether Donald Trump can federalize the California National Guard to 5 00:00:20.760 --> 00:00:26.399 protect federal assets and federal law enforcement operating in Los Angeles. 6 00:00:28.960 --> 00:00:31.120 So I'm going to talk today about sort of the 7 00:00:31.160 --> 00:00:33.439 politics of this, which I think I might write about. 8 00:00:33.600 --> 00:00:37.359 I've got some in the works to submit to National 9 00:00:37.359 --> 00:00:39.079 Review about it. But I also want to talk about 10 00:00:39.079 --> 00:00:42.960 the legal side of it, because it really is touching 11 00:00:43.000 --> 00:00:47.039 on this massive problem. This is a big problem for 12 00:00:47.079 --> 00:00:51.280 American governance in general, and it's become this hugely outsized 13 00:00:51.320 --> 00:00:56.840 problem during both of the Trump administrations. Rule by judges, 14 00:00:57.960 --> 00:01:04.000 where judges feel they have the ability to jump in 15 00:01:04.799 --> 00:01:08.480 on questions where I think it's more than arguable that 16 00:01:08.599 --> 00:01:11.840 it's not really areas that are subject to their review 17 00:01:13.120 --> 00:01:16.599 that the framers would not have viewed as subject to 18 00:01:16.640 --> 00:01:23.680 their review. I think one of the arguments about the 19 00:01:23.719 --> 00:01:27.159 Abrego Garcia case, well, not really the Obrego Garcia case, 20 00:01:27.159 --> 00:01:35.000 but the categorization of the large group of Venezuelans as 21 00:01:36.840 --> 00:01:40.480 using the alien enemies Act to deport a bunch of 22 00:01:41.560 --> 00:01:47.359 these Venezuelans. Is when that statue was drafted in the 23 00:01:47.400 --> 00:01:51.400 eighteenth century, it was before the concept of judicial review 24 00:01:51.519 --> 00:01:54.480 was even really very firmly established within the American courts. 25 00:01:55.319 --> 00:01:58.319 And basically, the Alien Enemies Act it gave the president 26 00:01:58.439 --> 00:02:03.319 power during war time or well in the event of 27 00:02:03.319 --> 00:02:08.319 an invasion or a predatory incursion or and there's specific 28 00:02:08.479 --> 00:02:11.280 language in the statute that I don't want to gloss over, 29 00:02:11.479 --> 00:02:15.120 YadA YadA, through it gives the president certain power to 30 00:02:15.120 --> 00:02:20.319 deport certain people. And we're trying to fit that eighteenth 31 00:02:20.319 --> 00:02:27.759 century statute into the modern do process system saying, well, 32 00:02:27.800 --> 00:02:29.599 you know, these people need to have a hearing, and 33 00:02:29.599 --> 00:02:32.879 they need to have and I there's a part of 34 00:02:32.879 --> 00:02:37.360 me that's sort of agreeing in general, like if someone 35 00:02:37.520 --> 00:02:40.960 so the president can designate someone as an alien enemy 36 00:02:41.400 --> 00:02:43.479 and then they get deported out of the country and 37 00:02:43.680 --> 00:02:46.840 they have no opportunity for a hearing or for a review, 38 00:02:46.960 --> 00:02:50.159 like to determine whether they actually are an alien enemy. 39 00:02:51.800 --> 00:02:54.080 You know what if the president just does that to 40 00:02:54.120 --> 00:02:57.159 someone who's a citizen, like, do they have no recourse? 41 00:02:58.479 --> 00:03:04.560 And the problem is do they have no recourse? Well, 42 00:03:05.319 --> 00:03:09.680 maybe the recourse is something other than judicial, Maybe it's 43 00:03:09.719 --> 00:03:13.479 something other than the courts. Maybe the recourse has to 44 00:03:13.479 --> 00:03:19.120 be ultimately something that is political. Not every problem in 45 00:03:19.240 --> 00:03:25.319 politics is resolved by appeal to the courts. We accept 46 00:03:25.360 --> 00:03:30.919 this in the context of things like impeachment. Okay, if 47 00:03:31.000 --> 00:03:36.439 Congress impeaches a president, he's just impeached. He can't appeal 48 00:03:36.439 --> 00:03:39.400 it to the courts. The courts are not the venue 49 00:03:39.479 --> 00:03:46.479 for deciding it. It's a political question. I think when 50 00:03:46.479 --> 00:03:53.639 it comes to core presidential powers defined for the president 51 00:03:53.719 --> 00:03:56.680 under Article two, the courts are just not an appropriate 52 00:03:56.759 --> 00:04:03.960 venue for disputing the legitimacy of what the president is 53 00:04:04.000 --> 00:04:11.759 doing and politics, the pressure of politics, of political accountability 54 00:04:11.800 --> 00:04:17.120 has to be the appropriate forum for checking what a 55 00:04:17.160 --> 00:04:23.920 president does. I mean, we had over the course of 56 00:04:23.959 --> 00:04:33.920 like twenty four hours yesterday, Judge Charles Bryer, the brother 57 00:04:34.519 --> 00:04:39.639 of former of retired Supreme Court Justice Briar, Stephen Bryer. 58 00:04:40.600 --> 00:04:43.480 This is a federal judge who's the brother of a 59 00:04:43.600 --> 00:04:47.000 very liberal former Supreme Court justice. So this will this 60 00:04:47.079 --> 00:04:52.120 is Stephen Brier's brother, Judge Charles Bryant, who's a judge 61 00:04:52.160 --> 00:04:55.240 in a federal judge in the Northern District of California. 62 00:04:57.720 --> 00:05:03.399 Newsom brings his lawsuit to challenge Trump's activation of the 63 00:05:03.399 --> 00:05:10.279 California National Guard, the idea being Trump didn't activate the 64 00:05:10.360 --> 00:05:15.879 National Guard through means of the governor. Ordinarily, the National 65 00:05:15.879 --> 00:05:19.480 Guard is responsive to that individual state's governor unless he 66 00:05:19.639 --> 00:05:23.480 is activated by the President ordering the National Guard to 67 00:05:23.519 --> 00:05:27.279 work through the governor. Now, the problem is, what is 68 00:05:27.319 --> 00:05:31.000 the significance of the statutory language requiring that the president 69 00:05:31.120 --> 00:05:36.279 activate a national Guard unit through that state's governor. The 70 00:05:36.360 --> 00:05:41.920 governor doesn't have veto power over the president's action there. 71 00:05:44.120 --> 00:05:47.199 The President doesn't need to ask the governor for permission, 72 00:05:47.879 --> 00:05:51.839 And presidents have activated national Guard units in direct defiance 73 00:05:52.319 --> 00:05:55.839 of governors in the past. For example, I think President 74 00:05:55.920 --> 00:05:59.680 Kennedy did that against the wishes of the governor of 75 00:05:59.680 --> 00:06:07.240 Alabama to start integrating schools in Alabama. So the president 76 00:06:07.480 --> 00:06:11.519 clearly controls here. And what did you have, Well, you 77 00:06:11.600 --> 00:06:14.120 had this bizarre spectacle over the course of the day 78 00:06:14.199 --> 00:06:23.360 yesterday that you have this hearing Judge Brier gets Judge Bryer, 79 00:06:23.519 --> 00:06:27.800 clearly a huge left winger, starts talking about it, gets 80 00:06:27.839 --> 00:06:30.519 into this rhetoric. In the course of the oral arguments 81 00:06:30.560 --> 00:06:33.480 and during the hearing talking about the president acting like 82 00:06:33.519 --> 00:06:39.079 he's a king, which is just the standard textbook liberal 83 00:06:40.000 --> 00:06:45.000 you know, talking point right now, and he rules in 84 00:06:45.040 --> 00:06:47.560 favor of California and so that well, the President didn't 85 00:06:47.639 --> 00:06:50.920 order him to do it through the governor, and he 86 00:06:50.959 --> 00:06:53.560 got all hung up on that. And so here is 87 00:06:54.160 --> 00:07:00.839 the president wanting to stop a riot that is rioting 88 00:07:00.920 --> 00:07:06.439 that is specifically aimed at disrupting federal law enforcement from 89 00:07:06.439 --> 00:07:11.839 doing its job. He wants to activate the National Guard 90 00:07:12.319 --> 00:07:16.720 to protect federal assets. This is clearly within the scope 91 00:07:16.759 --> 00:07:19.800 of his power. He's telling the military what to do, 92 00:07:22.879 --> 00:07:28.399 and a federal judge is stopping him. We are like, honestly, 93 00:07:28.439 --> 00:07:30.959 there's the joke that people have said, well, you know, 94 00:07:31.399 --> 00:07:35.279 imagine we're in It's it's World War two and General 95 00:07:35.680 --> 00:07:38.360 Eisenhower tells Patten to move in over here, and a 96 00:07:38.360 --> 00:07:41.720 federal judge from the d C Circuit, from you know, 97 00:07:41.759 --> 00:07:44.439 the DC District Court says, hang on, is it quite 98 00:07:44.519 --> 00:07:49.240 legal for General Patten to move, you know, from Normandy 99 00:07:49.519 --> 00:07:52.959 into the Battle of the bult That's the level we're 100 00:07:52.959 --> 00:07:56.560 talking about, Like, should federal judges be interfering in like 101 00:07:56.600 --> 00:08:06.439 the president ordering generals what to do moving military units. No, 102 00:08:06.959 --> 00:08:12.959 judges don't involve themselves in that. I mean, let's think 103 00:08:12.959 --> 00:08:15.560 of I can the thing of a more plausible scenario 104 00:08:15.639 --> 00:08:17.480 if you think I'm gonna being far fetched, all right? 105 00:08:21.480 --> 00:08:27.560 In the first Trump administration, the US government initiated a 106 00:08:28.439 --> 00:08:37.559 targeted strike to kill Iranian the Iranian general Sulamani. What 107 00:08:37.759 --> 00:08:40.919 if they were initiating it and somehow word got out 108 00:08:41.240 --> 00:08:44.960 and someone tried to someone within the military, liberal within 109 00:08:45.000 --> 00:08:47.000 the military tried to file a lawsuit in the DC 110 00:08:48.279 --> 00:08:51.960 District Court to say this order has been initiated. I 111 00:08:51.960 --> 00:08:55.000 think it's I think this is an unlawful air strike, though, 112 00:08:55.960 --> 00:09:01.200 because Iran has not, you know, attack the United States 113 00:09:01.360 --> 00:09:04.000 and it's not within the president's scope of his power 114 00:09:04.440 --> 00:09:06.840 to attack the bl blah blah blah blah blah. Maybe 115 00:09:06.840 --> 00:09:09.639 you can make some legal case that this is an 116 00:09:09.639 --> 00:09:12.600 air strike that would require an authorized use to military 117 00:09:12.639 --> 00:09:17.639 force to be passed by Congress first, that this particular 118 00:09:17.639 --> 00:09:20.960 air strike is not authorized, that it's not clearly within 119 00:09:21.000 --> 00:09:23.159 the scope of the authorized used to military force that 120 00:09:23.240 --> 00:09:27.279 was passed blah blah for the Global War on Terror 121 00:09:27.320 --> 00:09:31.399 or blah blah blah, blah blah. Is the president going 122 00:09:31.440 --> 00:09:34.000 to have to Look? You may think that a strike 123 00:09:34.080 --> 00:09:37.159 like that is fair or unfair. I think it's really 124 00:09:37.279 --> 00:09:45.000 dangerous to start giving judges any role over deciding whether 125 00:09:45.159 --> 00:09:49.759 or not the deployment of anything military is a good idea. 126 00:09:49.799 --> 00:09:52.960 That shouldn't be up to that it should That is 127 00:09:53.000 --> 00:09:57.919 a question ultimately of politics, the people deciding if they 128 00:09:57.960 --> 00:10:03.399 want to go to war. I just think you're getting 129 00:10:03.440 --> 00:10:08.600 into this incredibly dangerous territory if judges are telling the 130 00:10:08.639 --> 00:10:15.679 president what to do with the military. Now, over the 131 00:10:15.679 --> 00:10:21.559 course of yesterday you had again, this is Judge Charles 132 00:10:22.399 --> 00:10:28.080 Bryer from the Northern District of California, which, by the way, 133 00:10:28.080 --> 00:10:31.840 this was another classic bit of ridiculous liberal forum shopping. 134 00:10:32.000 --> 00:10:36.720 Here are these riots happening in Los Angeles. Where does 135 00:10:36.759 --> 00:10:40.559 GAVENUWSM file the lawsuit to challenge this or I guess, 136 00:10:40.679 --> 00:10:43.519 Rob Bonta, where do they file the lawsuit to challenge 137 00:10:43.519 --> 00:10:46.480 President Trump activating the National Guard? They don't do it 138 00:10:47.000 --> 00:10:52.399 in LA. Why Well, because the various district courts sort 139 00:10:52.399 --> 00:10:54.759 of centered around the LA area, like the Central District 140 00:10:54.759 --> 00:10:58.440 of California, et cetera. They have a lot of Republican 141 00:10:58.480 --> 00:11:06.320 appointee judges, so Newsome slash Rob Bonta, they bring the 142 00:11:06.399 --> 00:11:09.799 legal challenge where in the Northern District of California, which 143 00:11:09.840 --> 00:11:15.879 is based in San Francisco, where the riots are not happening, 144 00:11:17.000 --> 00:11:19.960 They bring it in the Northern District California. Why because 145 00:11:20.039 --> 00:11:22.639 all of the judges in the Northern District of California 146 00:11:22.720 --> 00:11:27.320 are Democrat appointees. So it was ridiculous little you know, 147 00:11:27.440 --> 00:11:31.600 forum shopping that if a Republican tried something like that, 148 00:11:32.000 --> 00:11:35.200 everyone would be, oh, this is really very troubling. This 149 00:11:35.240 --> 00:11:37.759 is a troubling manipulation of the legal system to attain 150 00:11:38.159 --> 00:11:42.159 a desired outfit, a desired outcome, this kind of blatant, 151 00:11:42.240 --> 00:11:47.399 forum blatant, politicized forum shopping. This is very concerning, and 152 00:11:47.679 --> 00:11:49.200 no one will care when a Democrat does it. And 153 00:11:49.200 --> 00:11:52.320 that this is the utter hypocrisy of most left wing 154 00:11:52.440 --> 00:11:57.679 law professors is they genuinely do not care if Democrats 155 00:11:57.720 --> 00:12:02.480 do stuff like this, and they will only care about 156 00:12:02.480 --> 00:12:05.399 the problem of, you know, one federal district court judge 157 00:12:05.440 --> 00:12:09.799 shutting down a nationwide policy. They will care about that 158 00:12:09.840 --> 00:12:12.759 if a Republican judge dares do that to a Democrat president, 159 00:12:12.960 --> 00:12:15.159 but they absolutely do not care about it in the 160 00:12:15.200 --> 00:12:19.080 context of Democrat appointed judges doing this to a Republican president. 161 00:12:21.200 --> 00:12:29.960 So Charles Bryer issues this temporary restraining order, which is 162 00:12:30.279 --> 00:12:34.440 an extraordinary I mean, so you have to issue a 163 00:12:34.440 --> 00:12:39.240 temporary restraining order is a very extraordinarily high bar that 164 00:12:39.320 --> 00:12:41.840 has to be met, which I think it's very difficult 165 00:12:41.879 --> 00:12:44.960 to say that avenusom met that bar. The judge grants 166 00:12:45.000 --> 00:12:52.600 it and immediately his grant of a tro is stopped. 167 00:12:54.480 --> 00:12:57.919 An administrative stay is granted to his tro by the 168 00:12:58.039 --> 00:13:00.879 Ninth Circuit Court of Appeals, a pan of the Ninth 169 00:13:00.879 --> 00:13:03.320 Circuit Court of Appeals. So the way that works is 170 00:13:03.720 --> 00:13:07.480 this is the Federal District Court says, yes, President Trump, 171 00:13:07.519 --> 00:13:09.879 you have to stop with your activation of the California 172 00:13:09.919 --> 00:13:15.559 National Guard. The Ninth Circuit jumps in, it's appealed to 173 00:13:15.600 --> 00:13:20.639 the Ninth Circuit and they immediately stay that TRORO. So 174 00:13:20.840 --> 00:13:25.600 thankfully the Trump administration got a good panel on the 175 00:13:25.639 --> 00:13:28.600 Ninth Circuit. So basically, the way this works is when 176 00:13:28.639 --> 00:13:33.039 you have a case decided at the federal District court level, 177 00:13:34.200 --> 00:13:36.960 it gets appealed to the Ninth Circuit Court of Appeals. 178 00:13:36.960 --> 00:13:39.240 But The thing is the Ninth Circuit Court of Appeals 179 00:13:39.559 --> 00:13:43.240 has like thirty judges on it. It's this enormous court 180 00:13:43.840 --> 00:13:46.679 and not it. You don't have it where all of 181 00:13:46.720 --> 00:13:50.320 the judges on the Ninth Circuit are all hearing the case. 182 00:13:51.279 --> 00:13:56.519 You get a randomly assigned panel of three judges to 183 00:13:56.600 --> 00:14:00.679 hear the appeal. And so there are three judges. Judge 184 00:14:00.720 --> 00:14:05.679 panel was judges Bennett, Miller, and Sung. Bennett and Miller, 185 00:14:06.559 --> 00:14:13.919 thankfully are both Trump appointees. Sung is I believe a 186 00:14:13.960 --> 00:14:18.840 Biden appointee. But nonetheless, and it doesn't sound like Sung 187 00:14:18.919 --> 00:14:26.440 dissented from this the Circuit Court. I'll just read from 188 00:14:26.440 --> 00:14:30.120 their order. The court has released has received the government's 189 00:14:30.159 --> 00:14:34.200 emergency motion for stay pending appeal. The request for an 190 00:14:34.200 --> 00:14:40.039 administrative stay is granted. So at the end of the day, 191 00:14:40.120 --> 00:14:44.799 the Ninth Circuit came in corrected what the rogue District 192 00:14:44.840 --> 00:14:48.360 Court judge did. But when we return, I just want 193 00:14:48.399 --> 00:14:54.519 to talk about the uncertainty that this all yields and 194 00:14:54.559 --> 00:14:57.879 the overconfidence in the courts that people both left and 195 00:14:57.960 --> 00:15:00.559 right seem to have. That's next on the Johns Already show. 196 00:15:02.559 --> 00:15:05.279 So over the course of the day yesterday, Gavin Newsome 197 00:15:06.279 --> 00:15:10.919 his lawsuit to stop President Trump's activation of the California 198 00:15:11.000 --> 00:15:16.679 National Guard. He wins on getting a temporary restraining order 199 00:15:16.759 --> 00:15:20.159 to stop Trump from activating the California National Guard, and 200 00:15:20.200 --> 00:15:25.279 then immediately that injunction against Trump activating the California National 201 00:15:25.279 --> 00:15:29.200 Guard is stayed, is stopped by the Ninth Circuit Court 202 00:15:29.240 --> 00:15:31.600 of Appeal. So Gavin Newsom was able to crow for 203 00:15:31.720 --> 00:15:34.399 victory and then oh no, no victory by the end 204 00:15:34.440 --> 00:15:38.840 of the day yesterday. And there are some people who 205 00:15:38.840 --> 00:15:43.399 would say, well, look that's the system working. You know, yes, 206 00:15:43.559 --> 00:15:46.159 you know, the district court judge gave a bad ruling, 207 00:15:46.480 --> 00:15:50.759 rogue federal judge, but you know, the Ninth Circuit stepped 208 00:15:50.799 --> 00:15:54.000 in and did the right thing. So that's fine, and 209 00:15:54.000 --> 00:15:58.200 the president's Article two powers were vindicated, so it's good. 210 00:16:00.320 --> 00:16:04.600 I don't think it's good. And this is kind of 211 00:16:04.639 --> 00:16:06.559 the point I made, one of the one of the 212 00:16:06.559 --> 00:16:12.960 points I made in the first segment, the idea. I mean, 213 00:16:13.000 --> 00:16:16.200 I'm glad the Ninth Circuit ended up where it ended up. Yes, 214 00:16:16.279 --> 00:16:19.200 the President can activate the California National Guard. The California 215 00:16:19.240 --> 00:16:20.960 National Guard is part of the military. The president is 216 00:16:21.000 --> 00:16:23.320 commander in chief of the military. The governor of California 217 00:16:23.360 --> 00:16:31.240 is not in the chain of command, and the legal 218 00:16:31.279 --> 00:16:34.600 requirements for the President to activate the California National Guard 219 00:16:34.679 --> 00:16:39.039 through that state's governor is not. It's more of an 220 00:16:39.080 --> 00:16:44.240 administrative procedural thing. It's not like the governor of a 221 00:16:44.279 --> 00:16:48.000 state has veto power over the president's activation of the 222 00:16:48.080 --> 00:16:57.240 National Guard. That that's not how that works. I think 223 00:16:57.279 --> 00:17:01.759 the problem is courts in themselves in this. In the 224 00:17:01.799 --> 00:17:04.759 first place, what should have happened was the Federal District 225 00:17:04.799 --> 00:17:11.480 Court should have said the operation of the military operation 226 00:17:11.559 --> 00:17:14.000 of the National Guard is within the ambit of the 227 00:17:16.079 --> 00:17:19.599 of the President's Article two powers, and it's not that 228 00:17:19.640 --> 00:17:26.480 the courts should not intervene in this. So I'm out. 229 00:17:26.680 --> 00:17:30.200 It was not a question, I mean, but that's not 230 00:17:30.440 --> 00:17:35.319 where the judge again, this was Charles Bryer, Stephen Brier's brother, 231 00:17:35.400 --> 00:17:37.799 the former Supreme Court Justice. Stephen Brier's brother is also 232 00:17:37.799 --> 00:17:39.440 a federal judge. 233 00:17:39.519 --> 00:17:43.920 His analysis was, well, no, no, the president isn't a king. 234 00:17:44.039 --> 00:17:46.640 He can't just do whatever he wants, so the and 235 00:17:46.680 --> 00:17:50.079 that's horrible there people act like the president's. 236 00:17:49.640 --> 00:17:52.720 The king, which is the exact liberal talking point right now, 237 00:17:52.839 --> 00:17:56.240 Clearly Charles, This federal judge is just watching MSNBC and 238 00:17:56.279 --> 00:18:01.279 he's just parroting liberal talking points. This is not the 239 00:18:01.319 --> 00:18:04.160 system working well. The fact that the Trump administration needs 240 00:18:04.200 --> 00:18:07.079 to go to court to vindicate its ability to activate 241 00:18:07.079 --> 00:18:15.519 the military to help defend federal assets, federal law enforcement 242 00:18:15.559 --> 00:18:21.000 trying to do its job is insane. It's not the 243 00:18:21.039 --> 00:18:23.759 way the system is supposed to work. I would say 244 00:18:24.839 --> 00:18:28.920 Adrian Vermuil, who's a law professor at Harvard, sort of 245 00:18:28.960 --> 00:18:32.240 an outside the box thinker of the right, if you will. 246 00:18:32.960 --> 00:18:35.400 I wouldn't call him a conservative thinker, but of the right. 247 00:18:35.480 --> 00:18:38.240 It's probably more accurate. He writes about this. If your 248 00:18:38.319 --> 00:18:42.960 reaction to this whole day's events is that quote the 249 00:18:43.039 --> 00:18:47.079 process is working, you're missing the point. Any one of 250 00:18:47.160 --> 00:18:52.160 almost seven hundred district judges might intervene at any time 251 00:18:52.279 --> 00:18:55.960 to block anything the president does, even within the core 252 00:18:56.039 --> 00:19:00.359 of his Article two powers. The overhang of uncertainty and 253 00:19:00.440 --> 00:19:05.119 confusion about where power lies in our government is toxic 254 00:19:05.519 --> 00:19:12.680 in itself. Binga that that's the core problem here, that 255 00:19:13.680 --> 00:19:20.920 individual federal district court judges are encroaching more and more 256 00:19:20.960 --> 00:19:24.400 into stuff that the president at the core that the 257 00:19:24.440 --> 00:19:28.759 president should be able to do. And it's frustrating to 258 00:19:28.799 --> 00:19:31.599 me that you have these conservative, sort of federalist society types, 259 00:19:31.640 --> 00:19:34.759 the guys writers like Ed Whalen, who who writes a 260 00:19:34.880 --> 00:19:37.119 National Review very often, who I respect in a lot 261 00:19:37.119 --> 00:19:39.759 of ways, but like he starts the day he does this, 262 00:19:39.960 --> 00:19:43.759 like live tweeting of the hearing in which Charles Bryer 263 00:19:45.000 --> 00:19:49.759 issued this ruling, and he starts by saying, there's no 264 00:19:49.839 --> 00:19:53.039 way that Charles Brower would would grant this, because you know, 265 00:19:53.119 --> 00:19:56.079 this would be ridiculous and interfering in the President's Article 266 00:19:56.119 --> 00:19:58.079 two powers, and this would just be silly and and 267 00:19:59.359 --> 00:20:01.839 and of course it's exactly what Briar does. And it's 268 00:20:01.839 --> 00:20:05.359 this weird thing with federalist society types that like they've 269 00:20:05.400 --> 00:20:09.319 spent their whole lives chronicling how lawless left wing judges are, 270 00:20:09.640 --> 00:20:13.799 and yet they they constantly have this attitude of surprise 271 00:20:13.960 --> 00:20:17.400 that a judge does a left wing well because obviously 272 00:20:17.480 --> 00:20:19.000 that would not be the right thing to do, so 273 00:20:19.039 --> 00:20:22.119 therefore this federal judge wouldn't do that. I don't know 274 00:20:22.160 --> 00:20:24.559 what it is if it's like these guys were all 275 00:20:24.920 --> 00:20:29.319 like hot shot superstar law students, and thus they all 276 00:20:29.400 --> 00:20:32.839 clerked for federal judges, So maybe they all sort of 277 00:20:32.920 --> 00:20:38.119 have this like outsized respect for federal judges that they're 278 00:20:38.119 --> 00:20:42.680 professionals who wouldn't do something silly, when like there's ample 279 00:20:42.759 --> 00:20:48.519 evidence that left liberal federal judges are lunatics and are 280 00:20:49.279 --> 00:20:54.400 hardened as much hardened political partisans as anyone in the 281 00:20:54.440 --> 00:20:59.240 elected branches, and that they do crazy things all the time, 282 00:20:59.359 --> 00:21:02.559 and in fact, that the very position of being a 283 00:21:02.599 --> 00:21:07.079 federal judge means never having to say you're sorry, why 284 00:21:07.319 --> 00:21:11.400 because you can't get fired. Like that's the thing. Federal 285 00:21:11.480 --> 00:21:14.400 judges develop a kind of god complex a lot of 286 00:21:14.440 --> 00:21:18.960 them because they can't get fired. I mean, the worst 287 00:21:19.000 --> 00:21:21.319 that can happen is they get overturned by the circuit 288 00:21:21.359 --> 00:21:25.640 court above them. Oh oh darn, Like my life has 289 00:21:25.680 --> 00:21:30.160 in no way been adversely affected by this. Like, federal 290 00:21:30.240 --> 00:21:34.160 judges have lifetime appointments, that's in Article three of the Constitution, 291 00:21:34.279 --> 00:21:37.279 that they serve during good behavior. It's a lifetime appointment 292 00:21:37.759 --> 00:21:39.640 and the only way they lose their job is if 293 00:21:39.640 --> 00:21:42.640 they get impeached by the House of Representatives. So, yes, 294 00:21:42.680 --> 00:21:45.240 an individual federal district court judge in you know, the 295 00:21:45.240 --> 00:21:48.279 Eastern District of California working in the federal courthouse in Fresno, 296 00:21:48.559 --> 00:21:51.119 is appointed by the president and can only get removed 297 00:21:51.200 --> 00:21:54.960 if this individual federal judge is impeached by a majority 298 00:21:55.000 --> 00:21:57.880 of the House of Representatives and then convicted by a 299 00:21:57.880 --> 00:22:02.880 two thirds majority of the United States Senate. And the 300 00:22:02.920 --> 00:22:05.599 only judges that that has ever happened to have been 301 00:22:05.680 --> 00:22:10.160 judges who are clearly taking bribes, clearly involved in serious 302 00:22:10.200 --> 00:22:14.240 criminal offenses. So these guys have lifetime appointments that they 303 00:22:15.839 --> 00:22:20.640 have no incentive to not act in a matter. If 304 00:22:20.640 --> 00:22:24.720 they're political partisans and they hate Donald Trump, they can 305 00:22:25.200 --> 00:22:29.720 what's to stop them from interfering? Someone just brings a 306 00:22:29.720 --> 00:22:32.279 crazy lawsuit. Oh, I don't think the presidents should be 307 00:22:32.319 --> 00:22:34.839 able to use them tell the military what to do. Mmm, okay, 308 00:22:34.880 --> 00:22:39.319 Well find some phony, blowney legal rationalization for this. And yeah, 309 00:22:39.400 --> 00:22:41.680 the president is enjoyed from using the military in this 310 00:22:42.000 --> 00:22:46.599 like we're we're there, We're we literally saw it happen yesterday. 311 00:22:47.880 --> 00:22:51.079 It's an insane encroachment on the president's powers. And this, 312 00:22:51.519 --> 00:22:59.400 I think is a real genuine constitutional crisis that we're approaching. 313 00:22:59.839 --> 00:23:02.920 If we get a federal judge who tells the president 314 00:23:03.759 --> 00:23:07.559 to not do something with the military, something really a 315 00:23:07.559 --> 00:23:10.160 federal court telling the president he can't do something that's 316 00:23:10.200 --> 00:23:12.319 really essential and really at the core of the military. 317 00:23:12.319 --> 00:23:14.839 Eventually the president is going to be forced, I feel, 318 00:23:15.319 --> 00:23:18.880 to tell a court, tell a federal judge, no, I 319 00:23:18.920 --> 00:23:25.599 am not complying with your ruling. That's going to be 320 00:23:26.119 --> 00:23:32.000 a constitutional crisis. Not the president sort of phony baloney 321 00:23:32.039 --> 00:23:33.960 saying he was going to comply in the whole Abrego 322 00:23:34.039 --> 00:23:39.640 Garcia case. That's not great, that's not great compliance with 323 00:23:39.720 --> 00:23:43.160 a court order, while saying that you're trying to comply 324 00:23:43.279 --> 00:23:46.720 with a court order. Yeah, that's not great, but that's 325 00:23:46.759 --> 00:23:49.839 not a constitutional crisis. That's still the president acknowledging the 326 00:23:49.880 --> 00:23:57.240 authority of a court. If the courts get so extreme 327 00:23:57.279 --> 00:24:01.119 that they're bossing the president around about military stuff, that 328 00:24:01.880 --> 00:24:05.559 is going to be a real shake up of our 329 00:24:05.559 --> 00:24:08.599 whole political process. When we return. What do I mean 330 00:24:08.640 --> 00:24:11.480 by constitutional crisis. Let me explain that in the next segment. 331 00:24:11.519 --> 00:24:15.440 This is the John Girardi Show. I keep saying this 332 00:24:15.519 --> 00:24:20.759 phrase constitutional crisis. If you know, if the courts keep 333 00:24:20.920 --> 00:24:25.039 stopping the president from doing things that are core presidential responsibilities, 334 00:24:25.119 --> 00:24:27.799 like we saw over the course of the day yesterday 335 00:24:27.839 --> 00:24:32.400 where a federal judge said that Donald Trump can't activate 336 00:24:32.440 --> 00:24:37.599 the California National Guard. I guess because he didn't activate 337 00:24:37.640 --> 00:24:40.200 it through the governor or something that the idea that 338 00:24:40.240 --> 00:24:42.119 the government he needs to do that or else. The 339 00:24:42.119 --> 00:24:45.599 blah blah blah blah blah, even though this is something 340 00:24:45.640 --> 00:24:50.039 that's clearly within his core second our Article two responsibilities. 341 00:24:52.000 --> 00:24:53.839 Over the course of the day, basically the yeah, the 342 00:24:53.880 --> 00:24:56.640 district court judge say no, the president can't activate the 343 00:24:56.720 --> 00:25:00.839 National Guard under this circumstance, and then immediately that ruling 344 00:25:01.000 --> 00:25:07.240 was stayed by the Ninth Circuit Court of Appeals. And 345 00:25:07.720 --> 00:25:09.960 I keep saying, I think we are headed towards a 346 00:25:09.960 --> 00:25:17.519 constitutional crisis where the president could be forced to disobey 347 00:25:17.559 --> 00:25:20.359 federal judges if they encroached too much on his Article 348 00:25:20.359 --> 00:25:23.079 two powers. What do I mean by constitutional crisis? What 349 00:25:23.119 --> 00:25:25.839 does anyone mean when they're saying this, Because this phrase 350 00:25:25.880 --> 00:25:27.680 has been used a ton over the course of the 351 00:25:27.680 --> 00:25:30.960 Trump administration. A lot of the time this was used 352 00:25:30.960 --> 00:25:33.759 in the context of the Abrego Garcia case and some 353 00:25:33.799 --> 00:25:36.759 of these the case of some of the Venezuelans who 354 00:25:36.759 --> 00:25:41.839 were deported that you had this judge declare dramatically that 355 00:25:41.880 --> 00:25:46.480 the president is not allowed to deport some of these Venezuelans. 356 00:25:48.160 --> 00:25:54.400 And it seems as though the relevant federal agencies were 357 00:25:55.039 --> 00:25:59.839 taking off shortly within minutes after the judge gave that order, 358 00:26:00.079 --> 00:26:01.880 or that they were in the air while the judge 359 00:26:01.880 --> 00:26:06.400 gave the order and didn't turn around. And so the 360 00:26:06.519 --> 00:26:11.200 left then tried to claim the Trump administration disobeyed a 361 00:26:11.240 --> 00:26:19.319 federal district court judge's ruling. This is a constitutional crisis. Okay, 362 00:26:19.480 --> 00:26:25.119 why what does that mean? Constitutional crisis? All right? What 363 00:26:25.200 --> 00:26:28.799 people mean when they say constitutional crisis is that it's 364 00:26:28.839 --> 00:26:31.279 a disruption of the sort of settled order that we 365 00:26:31.400 --> 00:26:39.759 have landed upon in America with courts, the weight of 366 00:26:39.759 --> 00:26:46.359 their ruling and the sort of obligation that rests on 367 00:26:46.599 --> 00:26:51.920 goodwill of the president to obey the courts. Okay, so 368 00:26:52.440 --> 00:26:55.480 right now, the ordinary system of things is the president 369 00:26:55.559 --> 00:26:58.440 does something, if it gets legally challenged and a court 370 00:26:58.480 --> 00:27:01.640 tells the president you can't do that, the president obeys 371 00:27:01.680 --> 00:27:08.960 the court. Now, what's there to stop the president from 372 00:27:09.000 --> 00:27:12.720 not obeying the court? Let's think about that for a 373 00:27:12.759 --> 00:27:17.359 little bit. What is there to stop a president from 374 00:27:17.799 --> 00:27:21.200 not obeying a court order he doesn't like even a 375 00:27:21.200 --> 00:27:25.720 Supreme Court ruling. Something gets kicked all the way up 376 00:27:25.759 --> 00:27:28.440 to the Supreme Court. The Supreme Court says, this policy 377 00:27:28.440 --> 00:27:31.920 that you've enacted is unconstitutional and you can't do it. 378 00:27:34.480 --> 00:27:39.200 I repeat, What is there actually to stop a president 379 00:27:39.319 --> 00:27:43.480 from just ignoring the Supreme Court? There's not a lot. 380 00:27:44.799 --> 00:27:51.079 The Supreme Court doesn't have guns. The Supreme Court doesn't 381 00:27:51.119 --> 00:27:57.279 have a police force. They don't have an army. So 382 00:27:58.160 --> 00:28:02.200 if a president says is I'm not gonna do what 383 00:28:02.279 --> 00:28:05.640 you tell me, Supreme Court, the Supreme Court really doesn't 384 00:28:05.680 --> 00:28:09.119 have much ability to stop the president at like actual 385 00:28:09.240 --> 00:28:13.119 physical ability to stop the president. They can issue pieces 386 00:28:13.119 --> 00:28:19.680 of paper, but we don't have that in America. That's 387 00:28:19.759 --> 00:28:24.000 not how it works. Okay, the presidents don't ignore the 388 00:28:24.039 --> 00:28:29.359 Supreme Court. What do presidents do? They obey the Supreme Court? Why? 389 00:28:29.640 --> 00:28:33.119 Because that is the constitutional settlement we have landed at. 390 00:28:35.079 --> 00:28:38.720 We landed at this settlement with judicial review and the 391 00:28:38.759 --> 00:28:43.160 Court's having the ability to engage in judicial review, and 392 00:28:43.279 --> 00:28:48.799 presidents have agreed to abide by it. But ultimately, let's 393 00:28:48.799 --> 00:28:52.799 remember who is you know? To follow the law. To 394 00:28:52.920 --> 00:28:55.720 enact the law is an executive function. You need the 395 00:28:55.759 --> 00:29:00.759 executive branch's job is to enforce the law. Supreme Court 396 00:29:00.880 --> 00:29:04.400 can't enforce its own rulings. The president has to enforce 397 00:29:04.440 --> 00:29:07.799 them against himself when the rulings are adverse to him. 398 00:29:09.240 --> 00:29:14.359 So that is the established, settled order of things, and 399 00:29:14.680 --> 00:29:17.079 it's kind of this area that's a bit of a 400 00:29:17.559 --> 00:29:20.799 it's not a total gap in the Constitution, but it's 401 00:29:21.079 --> 00:29:23.480