When and How Should the National Guard be Deployed? – with Rosa Brooks and John Yoo

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Follow the gist every weekday on YouTube wherever you get your podcasts. And tell them you might be right, sin you. When you have public official's up to an including the president who seem to be saying repeatedly and publicly,

I don't really care what the law says. I don't really care what judge it's telling me. If the Supreme Court tells me I can't do something that just 'cause they're stupid and I'm gonna find some other way to do it.

That, you know, I mean, that's really, really dangerous stuff. What is the difference between war and crime? With war, we use the military, we use force. There's no warrants, there's no juries, there's no trials.

With crime, we don't use force as the first option.

We arrest people, we have a jury trial. Use because we think they've committed a crime in the past, not 'cause they're gonna hurt us in the future. - Welcome to You Might Be Right, a place for civil conversations about tough topics.

Hosted by former Tennessee governors, Phil Brettison, and Bill Haslam. I'm Mary and want to make a dean of the Baker School at the University of Tennessee, where members of our producer circle make this show possible.

To learn more about our work, visit you mightberight.org. - Well, hello everyone and welcome back to our new season of You Might Be Right. I'm Bill Haslam, I'm here with my friend

“and fellow former governor, Phil Brettison, Phil, how are you?”

- I'm doing fine and I hope you are as well. Good to be back again and I think we've got some interesting issues this season. - You know, the country is not running short of interesting topics, so I can say that.

I think we have a lot of those lined up today that are gonna focus on the things that kind of issues that have been brought to the fore. - Today, we're diving into a constitutional flash point that's really become a hot topic in the news.

And that is under what circumstances should the president take control of the national guard? What should they be used for domestically? And I think a lot of people are trying to work their way and through and figure out just how this fits into you,

into the whole system of government.

- The reality is we all tend to like it

when it's in the cause of something that we believe in. Our district, you know, we don't like it when it's something that we don't want the president to intervene in that. But I think there are some principles.

Some people think, hey, the executive needs to act swiftly in crisis times and needs the ability to do that others are like, whoa, but we have a reason that the states have responsibility different from the federal government

and this is one of them.

“- And I think that, you know, that we've both been”

both on governors and both have to deal with and work with and actually I guess we're trying to the commanders of the national guard and you know, it took that responsibility seriously which I think includes how you support them

and also under what circumstances do you use them and how do they fit into the whole structure of how you execute the opposite governor? - I think that's right. I think there's folks who say, listen,

we're concerned about the balance of power shifting like said from the states to the federal government,

we were particularly sensitive to that. But others argue that when we talk about domestic matter, it's allowing federal control is just needed some time to make certain that we respond to events in an adequate way.

- Yeah, I certainly mean as somebody like you has been in a couple of executive positions of government as mayor and as governor. I certainly have a tendency to want to say, you know, when things happen,

you need to be able to move the levers and not be constrained in a lot of ways so I'm sympathetic to that notion. I have to say whether you like or don't like Donald Trump, he has done a great job of bringing forward

a lot of constitutional kinds of issues. And this is a great opportunity to discuss them.

“- I think one other point I want to make for we get started”

is there are practical implications in terms of who's in charge. You know, and we saw that play out a little bit Minneapolis like it came to law enforcement. Is this a local issue? Is the chief of police in charge?

Is the head of the National Guard in charge? Who's actually running things? And that's one of the things I hope we get a chance to talk with our guests about today. I think we got some good guests in looking forward to it.

Well, Bill, let's get started.

Our first guest is Rosa Brooks,

who's a law professor at Georgetown University and former senior advisor at the U.S. Department of Defense. She's written extensively on national security, the laws of war, and the shifting boundaries between war and peace and modern conflict.

She's the author of how everything became war and the military became everything, where she examines how traditional distinctions between civilian and military spheres have boarded in the post 9/11 era.

She also served in the State Department

“and brings both academic and policy experience”

at these debates. Rosa, welcome. She might be right. I'm glad to be here. Thanks for having me.

Well, let me start out with just a primer question as former governors. We should have a full grasp on this. But explain to our listeners, what's the purpose of the National Guard?

How they different than regular Army? Who controls, what do they exist? So why they exist? It's a relic of our colonial past and the concern that states have that a distant federal power

might be, they might be dangerous of real tyranny. If states couldn't call up their own militias, by tradition, the American colonies had their own militia forces. We fought a war against a distant monarch

who the American colonists believe was acting as a tyrant and so the U.S. constitutional system preserved this idea that the state is more likely to safeguard your rights than a far away federal government and that it's important for states

to have their own militia forces to call on who are going to be responsive to local needs and local conditions.

So we've always preserved that, typically,

and normally, under normal circumstances, the National Guard are volunteers who are under the direct control of the governor of the state. There are a pretty narrow set of exceptions, at least in theory, pretty narrow, under which national guard troops

normally under the control of the governor's governance. Governors are, in effect, their commanders and chief. There are some narrow circumstances under which the president of the United States can either with the agreement of the governor or in really a narrow circumstances

without the agreement of the governor can take control of the state's national guard and, for instance, and them off to fight at Iraq or fight in Afghanistan or perform other kinds of federal functions. But there are some legal limits to what national guard troops

can do depending. I'm going to give you a total lawyer answer, which is that it all depends on the circumstances, but I'm happy to talk about what those circumstances are. - I used to be an economist with that kind of kind of thing.

- And it's terrible, that's sorry. - You know, it's, I mean, as a governor, I certainly don't dispute the right of the federal government to better rise, better rise these troops, and I think it's called up our encasers

to Quelle, the Quelle insurrection, for example, and those kinds of things. The national guard recently has been used, basically, for domestic purposes,

“I think fighting crime in Chicago and Minneapolis and the like.”

Is that constitutional? Does that actually fit within the things that guard just committed to do? - So again, I'm going to give you a terrible lawyer answer. It depends.

Governors are always free to use their national guard troops

under their own control. You're the government, Tennessee. You can use the Tennessee National Guard troops to respond to any kind of emergency within the state. Whether that is a earthquake or hurricane,

Bixnow Storm, or for that matter to undertake the kinds of activities normally undertaken by civilian law enforcement, by police. When national guard troops are federalized,

of the President of the United States

and the via the Department of Defense,

“Chain of Command, then they're subject actually”

to a different set of rules under something called the Pasi County Todas Act, which essentially says they're not supposed to be doing domestic law enforcement. They're only supposed to be doing things

that involve providing support to civilian law enforcement. So a lot depends on their legal status and whether the President is legally allowed to federalize them, bring them under his direct control. If the governor of Jax depends on things like whether

he invokes something people probably heard about these days, the insurrection act, if the President says, there's an insurrection and existing within a state and the governor not doing enough to 12 that insurrection, then the President can federalize those troops,

but there's a lot of dispute over what counts as an insurrection.

- Yeah, so it's to define what an insurrection is. - So we've got a Supreme Court case that is almost 200 years old, this last time Supreme Court looked at this issue. And almost 200 years ago, Supreme Court said,

well, that's President's judgment. President decides what counts as an insurrection. Since then, we've had some cases that suggest that the courts are not going to automatically differ. If the President announces one day, any President,

let's not say Donald Trump, any President, gets up one day and says, space aliens are invading. And so I am going to invoke the insurrection act. Space aliens have using mind control or taking over the minds of all the governors

of the United States. And so I'm invoking the insurrection act.

Again, they're doing it again.

- Yeah, it's a huge, ongoing problem throughout the public's history, right? I mean, would the courts say, oh, yeah, sure, that's fine, Mr. President? No problem, right?

“I mean, I mean, I think that more recent court decisions,”

including the decision we just got from the US Supreme Court on tariffs, suggest that even a matter is where the courts have traditionally really deferred to the President's judgment

that they're going to exercise at least some kind of minimal reality-based fact-finding. And if the President's just totally off his rocker, just manifestly making stuff up, that they might say, hold on.

There's space here for some judgment calls about whether some serious degree of violence is an insurrection, but we're not going to let you get away with simply asserting something if there is absolutely zero evidence.

- And the federal courts that have complained about the National Guard being used in that way, is that the basis that you can't really base it on insurrection, because the facts don't support real insurrection?

- No, not yet, only because the President has not actually invoked the insurrection act when he has used the guard so far. So that issue just hasn't risen yet, but what the courts have waited on in some circumstances

has involved things like the courts have not allowed the use of active duty troops. Federal court said that the use of active duty Marines in Los Angeles, for instance, was not OK. Precisely because of those posse commentatists issues,

I mentioned, of the military, when they're under the command and control the Department of Defense, whether they're Marines, active duty, or whether they're federalized guard troops under the insurrection act.

They're not supposed to go do law enforcement. They're supposed to be doing things that support civilian authorities. But so it's kind of all over the place because the fact, the factual situations in the areas

where the courts have ruled on guard and other military deployments have varied pretty substantially, but it's been on other grounds. It hasn't been because of the insurrection act. - So from a constitutional perspective, help us understand,

what are the dangers? What should we worry about when a president federalizes a state national court against the governor's consent? Let's take those cases. - I mean, we should worry about the very same things

that the signers of the Declaration of Independence worried about, right?

“I mean, that's what we fought a war about”

was the concerns about tyranny. The concern is about overreach by the federal government. The concern is about the use of military forces, whether they are federalized guard troops or active duty military to suppress behavior

that should be protected by the Constitution. That's the core concern here. And I think that was the concern in 1776 when the Declaration of Independence was signed. That was the concern that motivated the framers

of the Constitution. And the Constitution, as you all know, is divides control over the military

So Congress has the power of the press.

Congress has the power to declare war. Congress has the power to make rules for the military forces. But on the other hand, the president's commander in chief, they were really worried about having

any one branch of government have too much control of the people with the guns. - So how can the wind and how can the president use the regular army on domestic purposes? - So if the president invokes the insurrection act,

the president can use the regular, active duty, military domestically. And the president can get around those posse communist issues if he invokes the insurrection act. If hypothetically our current president

were to wake up tomorrow or let's say he, at the time, we're recording this at least

the state of the union speech is about to happen.

If he were hypothetically to say, there is an insurrection in the entire United States today. And I'm invoking the insurrection act.

“I think courts would pretty quickly get to the courts”

and they would probably pretty quickly say, "Hi, you know, we just don't see an insurrection and we're gonna give you a lot of difference "cause you're the president, but you can't just say it "to make it true," that being said.

And this is the reality whenever it comes to legal questions. If you are a military commander in the president says, "I'm invoked the insurrection act "and I'm sending you to Atlanta or wherever I want to send you." You're probably not gonna say no.

I'm waiting for the Supreme Court to wait. And you're gonna say, your orders are presumed to be lawful. I'm gonna go ahead and it would probably take at least a week or so

before any federal court could address the question directly.

So for practical purposes, the president can do a lot, even if a court subsequently says that was unconstitutional, you shouldn't have done it. - There is a lot, and I mean a lot, going on in the news around our government and our laws.

And there's one question that we all hear or think about all the time. Is this constitutional? If you don't remember all the civics classes you may have taken in school, you can get the answer

to that question, and many others, by listening to Civics 101, the critically acclaimed podcast from New Hampshire Public Radio. Civics 101 is an entertaining way to learn about how our government works,

or at least how it's supposed to work. And you'll hear a lot of surprising stories along the way. Like, how to landmark Supreme Court decisions

“affect our lives, and what does the second amendment really say?”

And even, why does the Senate have so much power? Civics 101 is a great companion to, you might be right. As it'll help you understand a bit more about what's going on, and it will make you a smarter citizen in the process.

So listen to Civics 101, wherever you get your podcasts, and tell them you might be right, sent you. - The new Trump regime is taking a brick bat to norms the constitution and the law, seemingly saying to the US justice system, make me.

Will the courts hold? - What you're seeing right now is a fundamental disregard of basic constitutional principles. - Join me, Dialithwick, on Amicus, Slate's podcast about the courts and the law to hear from the lawyers.

Judges, advocates, and analysts who have the answers. Search Amicus, that's Am, I, C, U, S, wherever you listen to podcasts, because legal knowledge is power. - You know, this discussion has come up currently over the use of national guards in ways

that it won't round me, round me criticized. - Right. - To, you know, depending on your point of view, to intimidate or to address an issue, which maybe is better addressed by a local government,

but there certainly have been cases in the past

“of betteralization, which I think reasonable people would say,”

this was a good thing. I think, for example, what I said in our did in Little Rock to, to protect the integration of the schools there. Do you think that was an unconstitutional intervention by Eisenhower?

- No, no, I do not. I mean, when you look at the text of the insurrection act, itself, it specifically relates to the states of a state, for instance, refusing to protect the constitutional rights of citizens within its state,

and that those are the kinds of circumstances where I think that courts have said it is, it is also appropriate for the president to use the military or the guard domestically to protect the right, to protect,

to ensure that legitimately past federal laws can operate, that the federal government can operate as opposed to, and that the individual rights of citizens are protected. Historically, can you give us an example?

Let's just take us out of the present day, okay, because we'll come back to that. But historically, have there been times when the federalizing the guard has gone too far?

like, they'll brought up the Little Rock,

“and you said, no, I think that was legitimate.”

Are there some examples when we've done that when we've used a national guard when we shouldn't have? - I don't think I can't think of any, and I should say I am not an expert on the history of national guard deployments.

I think one that was maybe a little bit more controversial, but that I think was constitutionally legitimate was the use of the national guard during the riots following being Rodney King in California. But no, I think we've actually seen over the course

of US history a lot of restraint on the part of presidents that they have really buy and large understood and respected the fact that you don't do this unless there is a really compelling reason. And you don't do it, you don't do it lightly.

- National guard, I believe, was also used

for the Interimate of the Japanese and World War II.

They were involved with that as well. Does that fall within your mind a constitutionally use of the guard? - So again, in hindsight, it's easy to say that the Interimate of Japanese Americans

was a deep wrong. It wasn't unconstitutional in the sense that how do we define what's constitutional at the end of the day, the Supreme Court tells us what's constitutional, they're the final,

they are the final authority on constitutionally, the Supreme Court upheld that internment. So in that sense, guard, that enforcing the constitution as interpreted by our courts, as interpreted by the President

and the courts in Congress, that's not unconstitutional. And I want to make it actually, this is a really good moment to draw a really important distinction. Sometimes we use the term, there's plenty of stuff that's lawful but awful.

Constitutionality, I don't think, is the, that shouldn't be the final answer to anything. I mean, with all due respect to the framers of Constitution, right? It's not really clear why at the end of the day, the final answer to any question should be

what a bunch of guys sitting around in 1787 or 1789. Thought about something that we can debate different ways of interpreting the Constitution all day, but things do change. And I think that almost everyone living today, I hope,

would say that was a terrible wrong. The Supreme Court got a wrong, President got it wrong, everybody got it wrong.

“And if that's what the Constitution allowed,”

then we had a little problem with the Constitution, right? But I think that's a different issue. - Right, and, you know, kind of begs a whole nother argument. But so, how do we make it so what, it's not just what the issues we prefer to send the guard down,

like, oh, I'm so glad I didn't have a sent them in. To Little Rock, I don't know if I would have sent them into LA after the Rodney King situation. So how do we get away from just, I like it when they're used for stuff,

I like it for, I don't like it when I don't. - It's democracy, right? I mean, this is, it's in theory. The way our system's supposed to work is that, you know, over the voters vote for people,

we have free and fair elections. We have Congress doing its job, right?

And that's really critical.

I don't think Congress is exactly doing its job on a lot of things these days, but ideally, Congress is independently and robustly evaluating what law should be passed, is the president abiding by the law, et cetera, et cetera.

We have the president who's supposed to take care that the laws are faithfully executed and we, you know, our system assumes that we have a president who really cares about the law, who really is gonna pay attention

and is gonna try to stay on the right side of the law. And we've got a system of federal courts and checks and, you know, that's our system of checks and balances, right? This is schoolhouse rock here.

You know, it doesn't mean that we don't screw up, right? We make mistakes and we make mistakes that 10 years later, 15 years later, 100 years later, we say, we short, you know, that was wrong. Every single branch of government got that

one wrong, but I don't know what we can do other than that, right? It's not really clear other than that. What you can do, except have that system.

“- But by that argument, oh, that's how democracy works.”

So, you know, the people voted for Donald Trump for president, he's in in folks to Minneapolis, that's how it works. Is that the answer? - No, that's not the answer because I think courts have repeatedly said to him, you know, you can't do what you're doing

and he has repeatedly said, you know, the courts may have said that, well, I'm gonna kind of find another way to do it anyway, ways that I think he knows and his advisors know are also gonna get slept down. I mean, this is the problem, right?

This is the, here's my Tinkerbell theory of the rules law. You know, everybody's watched Peter Pan or members Peter Pan, I think there's a line where, you know, Tinkerbell says anytime, any child, anywhere in the world says, I don't believe in fairies and other fairy dies.

So anytime, anybody says, it doesn't matter what the courts say,

You know, like the rule of law democracy dies a little bit more.

And that, that I think is the situation we're in right now. It's actually a really scary situation when you have public official officials up to and including the president who seem to be saying repeatedly and publicly, I don't really care what the law says.

I don't really care what judges tell me. If the Supreme Court tells me I can't do something that just 'cause they're stupid and I'm gonna find some other way to do it. That, you know, I mean, that's really, really dangerous stuff.

And that I think gets us back to that territory that the signers of declaration of independence were worried about when you've got an unaccountable leader who is saying, hey, I get to do what I want.

“It doesn't matter what the rest of you have to say.”

So if we were, if I roll the clock forward 15 or 20 years and we're sort of out of the current era of politics and so on, and the question comes up, okay, what is the role of the National Guard? It's been used for good and for bad in the past.

Are there changes that you would suggest to the existing law that establishes the National Guard and so on that would help to protect or is this a court's matter? - I don't think the problem really is the law here.

As I said, there's a great code. I'm not gonna be able to get it exactly right by a judge with the all-time best name for anybody who you remember. Judge learned it hand. (laughing)

I want to be named for it. - Exactly, what am I parents mess up? - Yeah, yeah, I was just gonna change it to my middle name. And he says something along the lines of when liberty lies and the hearts of men and women,

it doesn't need any court or any constitution to save it and when liberty dies and the hearts of men and women, no court, no constitution can save it, right? And we all know this, that the law and what is right are sometimes two different things.

And Nazi Germany, the Germans passed laws

that made it completely legal to kill six million Jews, right?

And the fact that something is legal doesn't necessarily mean it's right.

“That's what I meant about there's plenty of stuff”

that's lawful but awful. And I think conversely, you can have good laws. You can have great laws. Look at the constitution of Russia. Look at the constitution of Iran.

Look at the constitution, look at the laws. Like they actually sound really good. You read them, you're like, oh, you know, freedom of speech, freedom of the press, this sounds really great. This sounds really protective of people's rights.

And yet in practice, there are joke. The governments do not abide by those. And so I don't think the, I think I think our problem and when we look back in 20 years, we're going to say, this is our problem is not fundamentally a problem of law,

even though I like any other lawyer in the world, I give you a hundred things, but we should change this. We should change that, we should change this. The problem really has to do with culture. You know, we have a political culture right now

in which a lot of people on both sides of the political spectrum, both on the left and the right, are very, very cynical about institutions. They're very, very cynical about the law. And so you have a situation in which when political leaders

say, the law, the courts, what do I care? They don't matter or it's all political anyway. You've got a lot of Americans who are like, oh, yeah, that's right. And the trouble is when everybody starts thinking that way, then we get, I mean, you raise this issue for them,

what do we look to to protect us?

“Because then you're just in a, well, I think this,”

well, I think that, well, which of us has more guns, and that's a really scary situation to be in. - Well, you've been incredibly helpful and thank you for kind of giving a great argument to your views.

Well, let me ask you the final question.

We always ask everybody, it comes from Howard Baker,

who's said, you know, always remember the other fellow, the other side, the other person might be right. Can you think of an example when you realized, like, I didn't have that exactly right. The other side of the argument was better than my side.

- Oh, gosh, this is a really important argument. The thing that's coming to mind is not about it. It's just about something that I predicted wrong. - Okay. I thought that our systems would stand up better

to this moment, to a president who is himself very cynical about the law and about the courts. I thought that there would be more pushback in particular from Congress. I, you know, Congress, Congress is really not playing,

it's constitutionally mandated role of providing a check and a balance on executive power. And I thought that we would see more pushback. And instead, I think we've seen a lot of institutions just rolling over.

And that I think was naive on my part. I think that I expected, okay, sure, maybe, maybe random cross-section of Americans

But I thought that elite leaders, like people in Congress,

would be a little bit more committed to protecting at a minimum, the institutions that they're actually part of. And it turns out that I was completely wrong about that, because quite a lot of our members of Congress appear perfectly content to just roll right over.

- Rosa, thank you very much for joining us. It's been very helpful and we appreciate you taking time. And I thought you, you've made a good case

“for your side of the argument, and that's what we're here for.”

- Thanks for having me. ♪ I'm just a bill, yes I only a bill ♪ - We all remember this song. It made it all seem so simple and turns out it's not. Who writes, influences, and kills bills, it gets messy.

I'm Scott Greenstone. - And I'm Libby Dankman, on sound politics, we tell that story, the inside track on how policy gets made in this Washington and the other one. And how it impacts you.

- Listen, now on the KUW app or wherever you get your podcasts. If you're like me and you enjoy podcasts at provide historical context to the day's news headlines, then check out the longstanding podcast called, "My History can beat up your politics."

Each episode hosts Bruce Carlson uses history to make sense of today's politics, covering different areas of American history from the Reagan administration stance on foreign policy,

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Find my history can beat up your politics on all podcast platforms.

- I feel our second guest today is John New,

a law professor at the University of California Berkeley, and a former official in the U.S. Department of Justice. He was a deputy assistant attorney general in the office of legal counsel from 2001 to 2003, so doing some controversial times,

including after the September 11th attacks, when he worked on issues related to national security and executive power, so he's very familiar with a lot of the issues we've talked about. He's written several books on presidential authority

in the Constitution, including crisis and command. John, welcome to you, you might be right. - Thank you, thank you, Governor. I guess when I say governor, I could be referring to either of you, so it's gone.

- Thank you, Governor, thank you, Governor. - It's like same doctor and an operating room. So, John, the Constitution names the president as the commander in chief, obviously. Does that include the authority

to federalize state forces and domestic emergencies, even when the governor objects? So, give us your view on that. We've seen that play out here recently. So obviously, as historical president

and little rock and other places. So your view, just a constitutional law, and if so, is it desirable as well? - It's a great questioning, general governor, the Constitution gives all of that power to Congress.

So when we look at the examples you mentioned,

President Eisenhower, calling out the 100 of first airborne

to desegregate the schools in the 1950s after Brown or the use of troops by President Bush in California after the Rodney King verdict or the recent deployments in the last year by President Trump.

All of those presidents are claiming that Congress gave them the authority to call out the troops in certain conditions. And so those conditions are not just whenever the president feels like there has to be

some kind of opposition to the enforcement of federal law. That's usually the theme that runs throughout it. Now some other presidents around the turn of the last century also claim this right to call out the troops in order to protect federal facilities,

to protect the federal government, to protect federal personnel. Sometimes those presidents would claim that they had an inherent authority under the Constitution, Abraham Lincoln at the start of the civil war

as the most famous president to invoke that ground. But in general, presidents don't invoke that. They usually rely on the statutes called they're called what the Insurrection Act, the National Guard Act, these powers

delegate to them by Congress.

“- I think where, you know, when people look”

at the deployment of the National Guard today as an action of presidential power, I think a lot of there's a distinction between there's an insurrection or sort of a gross violation of federal law, like does it segregation laws

which is done just in support of domestic law enforcement? And so my question is, I mean, in your view is the use of the National Guard for domestic law enforcement, so is that within the range of things that a president can reasonably claim?

- Yeah, it's a fine distinction. Did you go to law school? - 'Cause only a lawyer would see that distinction, but it's a good one. - I don't know, I won't take that himself anymore here.

- Yeah, he was actually a physics major, so he was barely even worse. - You know, you know, how you can tell the difference between the normal physicist and the social physicist, the social physicist looks at your shoes, not his own shoes.

“I think this, but the reason I say that point about the”

fine lawyerly distinction, is because that's a distinction the Supreme Court has actually focused on, is that in general, Congress passed the law called the Posse Comitatis Act in the at the end of reconstruction that says,

you can't use the military in the United States to engage in law enforcement. This was part of the deal to remove federal troops from the south and not have federal troops occupying, territory in the United States again.

And so instead, those troops, when they're called out, they're only for those narrow purposes, preventing insurrections or evasions or attacks

from other countries, the second would be,

as you suggest a governor, protecting federal personnel, who themselves are doing their jobs, carrying out, you know, it's enforcing the law. And then the third category can be stopping obstacles, people who are trying

to stop those law enforcement officers.

“And that third ground is the one I think”

that's created the most controversy this last year because the question, then the next lawyerly question, I won't say the physicist's question, but the next lawyerly question would be, well, what counts as obstructing

or impeding federal law enforcement? And what's just simple protest or what's just simple observing that doesn't get in the way a federal law enforcement? - So, you know, we tend to think of, we like it when the president calls in something

that, you know, we, they, oh, yes, I mean, for sure, he should have sent troops to Little Rock. Or Eisenhower should have done that, you know, I don't know how I feel about Minneapolis. Can you help us draw a distinction between, yes,

this is appropriate, and this is not, is there a way to do that or is that all in the eye of the holder? - No, I, I think it's very important that we make sure there are objective rules that apply all throughout the country.

I agree, I don't think it should be in the eye of the holder.

“I think the case in Little Rock was clear”

because there you had, in fact, the governor of a state trying to stop the implementation of a Supreme Court decision, Brown,

you know, the most important Supreme Court decisions

in our history, ending the segregation of schools. And he was using actually his own state's national garden, his own state's police to try to block the Supreme Court. That I think is a clear and obvious case. Minnesota is harder in a way because it's not

that the state and its officials are blocking federal law enforcement. In fact, what the Minnesota governor and officials are doing, I think, is perfectly allowed under the Constitution

as interpreted by the Supreme Court, which is states don't have to help federal law enforcement. They can, and we know from the example of Little Rock, they can't oppose federal enforcement, but they can stand aside and refuse to cooperate.

That's perfectly legitimate under our constitutional system and our structure of federalism. The harder distinction is this question of obstruction. What do you think the people who are trying to impede, perhaps, immigration officers,

are they really obstructing law enforcement or are they just exercising their free speech right to protest? Some point you cross from one to the other, and when you cross that line, then I think the military can protect those law enforcement officers.

But if you stay on the side of just the first amendment,

free speech protest, then I don't think the military has a right to intervene. - I don't want to be accused again of making too subtle distinction here, but one of the questions I'm looking at is a joke.

- Don't worry about it. - Oh, no, no, there's so many jokes about physicists. I just thought, I just-- - I have a long list of them, but I say away from those. - I just say, there's also in my mind a distinction

that have functioning governments and governors

“and national guard, and the use of the national guard”

in Washington, do you think the Washington use is an easier sell constitutionally? - Oh, yes, that's an excellent point. You're quite right in the areas like Illinois, Minnesota. You have this delicate balance between the federal government

and the states, and the Supreme Court has said, just in a case from 10 years ago, said clearly, the states don't have to agree with the federal government and the way they want to enforce federal law, and the way you're allowed to make that known

is just not cooperating, not participating. That's different in Washington, D.C., because as you point out, there's no states. Actually, every official, every police officer in Washington, D.C., is an employee of the federal government.

And so the federal government is allowed to tell those officials what they can and cannot do, and they really don't have any right to refuse to cooperate, because they all work for the national government.

There's no federalism issue at stake with Washington, D.C.,

“on, I want to come back to your experience”

after September 11th and be in the White House,

but a practical question first,

one of the things that would concern me and his governor, let's say the President's Senate deployed the national guard and I wasn't in favor of it. I worry about just the practical aspects of who's in charge on the committee,

is the police chief in Minneapolis in charge is the commander of the national, who's in charge and how should all that play out? - Now, this is the problem when you have, I agree with you, when you have states

and the federal government that are at odds with each other, because as you saw in Minnesota, for example, if the local police chief decides, well, put them, if the governor and the legislature of the state pass a law saying,

we are not gonna cooperate with federal law enforcement.

Which is usually the norm when it comes to things like

organized crime, drug cartels, violent crime and so on, but suppose like an immigration, there's a difference. If the states decide not to participate or cooperate, then you ask an excellent question, how much discretion to all the subordinate officials have

down to the police officer about how they're gonna put that policy into effect. So for example, when federal law enforcement conducts an operation in a city, they tell local police that they're coming,

they want local police to be there to prevent any kind of misunderstandings, to prevent any kind of confusion of authority. But you're a once the federal state government's decide they're not gonna cooperate,

and the federal government's not gonna tell the local police they're coming, and the local police, they're not gonna be sure who they're supposed to be helping and who they're protecting from what.

“And then, unfortunately, I think you do see”

the kinds of disorder you saw in Minneapolis and part. - Both of us, obviously, having a governor's have dealt with the National Guard and technically been the commanders of the National Guard when they have not been federalized and so on.

My understanding from both reading and actually earlier in this podcast is that the National Guard is kind of a remnant of the state militias combined with the little unusual.

I'm curious, internationally, are there other countries that have, what's the equivalent of our National Guard, something that's under local control but can be federalized? - So, interesting thing, I actually teach a course

for state and local officers, and I compare that to other countries. So, the interesting thing is in other countries, they don't really have our system of federalism. Most of the other peer industrialized countries

to ours don't have this sovereignty of states, like the ones that you have. They don't have elections for governors. They just have appointees from the National Government. So, if you're in Tokyo or you're in Paris,

you run into a police officer. I hope you don't, but you might, that police officer works for the National Government of Japan or the National Government of France. They don't have our competing jurisdictions

and different independent sovereignty's. So, they don't have really the possibility that we're discussing here where a state can say, I disagree, we disagree with the federal priorities on enforcement, on immigration or drugs.

Marijuana is another example where states and the federal governments are very much at odds. And the state can just withdraw and say,

So, you might see the one thing

that other countries have that we don't have because of our federalism is they have paramilitary troops paramilitary police. So, if you go to a police station, train station, airport in Europe or Asia,

you might see really heavily armed police officers that look like military troops. They occupy this space in between the armed forces and civilian police. And we don't really have that in the United States.

And who do these paramilitary police report to? And those situations? - So, usually they report to what they would call the home minister or the interior minister, something like the equivalent of our DHS secretary.

But, right, not in the same way because we really don't have,

“and I think that's a product of our federalism.”

I personally favor this as a wave of ensuring lit individual liberty.

But we've never had a step where we combined police

and military into this one body. The closest is the national guard, but as you say, it's an AT centri militia. And the militia were really intended to be every able body male between the ages of 18 and 40

who could carry a weapon and be called out almost on an emergency basis. - The, and just one last follow-up on that, you mentioned that other countries don't have the same kind of federal system,

but there's certainly a country as Canada comes immediately to mind that have very strong federal system. Just can't have anything like the national guard. Just Quebec had its own military.

- If I were the English, I would never let the Quebec have their own military. (laughing) 'Cause there wouldn't be a Canada left after that. - I did pick them for a reason.

(laughing) - But I should say there are very strong, other states that have federal systems. Germany has, you know, Italy has strong regional systems,

“but I think the thing they lack that we have”

is this idea that right, the state of Tennessee is as its own political system, as its own governor, so it has its own elections, its own legislatures. I think in a way other countries don't really have it to, I think, in other countries a province or a region

is really considered like a substation of the national government. And so they take their enforcement discretion, they take their enforcement orders, sorry, from the national government in a way that,

right, you when your governor's, you didn't have to do what Washington wanted you to do when it came time to, how you solved murderers or how you reduced street climb. That was up to you.

- Despite that, we both resisted the temptation to invade Kentucky, so. (laughing) - Well, what are you gonna do with all those distilleries? Anyway, thank you.

(laughing) Hey, let me flash back to the time you spent, you know, working in President Bush's administration after 9/11. And you had to do a lot of work

and made a lot of decisions around executive authority related to national security. And I'm guessing you made some decisions then that even folks that share the law faculty with you at Cal Berkley would say,

"I'm not sure I would have done that." - Oh, you're very, you're very, you're very charitable. - Right, that's right. But what are the things that, I get to zoom back out just from the National Guard question.

There's a whole lot of questions today around presidential authority. Like him or not, President Trump has pushed the boundaries, past what any, as the Governor Brennan said, past what any president has done in our lifetime.

Are there some principles that you would argue about the limits of presidential authority? What they should be, I mean we've already seen some court cases, Tara, last week, some more to come. But are there some things that you would argue

from your time and office, particularly in a true national security time that you would help us to understand today's situation? - Yeah, that's a great point. And something I think about a lot.

And I think it came up in particular with the Venezuelan Boats strikes. - Okay, good one.

“- Yeah, so I think one distinction that's important there”

and it was very much like what we had to deal with after 9/11 was what is the difference between war and crime? With war, we use the military, we use force. There's no warrants, there's no juries,

there's no trials, right? You attack an enemy target 'cause you think. It's part of an enemy force to harm you. You don't arrest people and bring them back to trial before a jury appears.

With crime, we don't use force as the first option.

We arrest people, we have a jury trial. It's because we think they've committed a crime in the past, not 'cause they're gonna hurt us in the future.

can we have war against terrorists, not other nations? And the American experience, our wars have really been mostly against other nations. Can we have war against a organization?

I thought you could, and ultimately the Supreme Court agreed.

Here, the question with Venezuela is, can we have a war with drug traffickers? Can we be at war with drug cartels? Or are we limited to having a war if we're at war, it has to be with Venezuela, the country,

not with everyone in the Caribbean who's moving drugs around on boats? I think that's an important limitation on presidential power. And one thing we did back, after 9/11,

I think probably both of you governors will have the same instinct. President Bush went to Congress, and he said, this is a new situation we faced. Let's get an active Congress

so that we are in agreement that we have decided as a society. We can go to war with terrorists, not just nations.

“I think that would be a wise thing for President Trump”

to do here if he really thinks

that we can be a war with drug cartels, which would mean not just the ones outside the country, but the ones that are linked and working for them inside the country. I think it would be really important

to get the support of Congress on such a momentous step. - One of the things that we've asked each of our guests here is this podcast is named after statement of Howard Bakers, just to remember

that the other person might be right. And I'd like to ask you in your own experience, you've had so much experience in this field. Has it been a time that you can remember where you had some opinion, but in its exposure

to somebody else who had a very different opinion, you kind of came around and said, you know, that's one where I got it wrong and here she got it right. - I've changed my mind a lot,

but I'm not gonna go through them all just like I won't go through all the engineered chips. (laughing) - But one area that I've changed my mind on quite a bit is how do we handle religious minorities

in our country? So I used to agree with Justice Scalia. He has this famous opinion where he said, if you're a religious group and you're subjected to a law

“that's not aimed at religion, then you have to obey it,”

even if it violates your rights. So that was a famous case of an Indian tribe which had a religion where you would smoke, hallucinogenic payote, and they were prosecuted under our drug laws, and Justice Scalia said,

if the drug laws don't give exceptions to religious groups, everyone has to obey them. I've changed my mind on that now. Nowadays I think that even if you're a religious group and there's a law and it appears with the way you worship,

I think that the government, that the Constitution, not the government, the Constitution owes you an exception so that you can practice your religion because I come to have a better understanding

of how important religion was to our founders and their vision of their natural rights and that those preceded government. So there's a, there's a kind of a big one I've changed my mind on.

Yeah, hey John, thank you. You've been terrific, it's been very, very helpful. And we've really enjoyed having you. Oh, thanks a lot, Governor. So I hope I finally got you to disagree

about something you both are so reasonable. (laughing) Well, we'll have our fight in private here after you. Exactly, you'll have. Hey John, thanks so much.

Thank you. Great to be with you. Well, this has been an interesting one because we're both executives and I'm sure luxury exercise is executive power

“and I think also recognize that there's obviously”

limits both the legal and just good practice to that power. I'm not quite sure where I come out after these conversations. I think back, your term good practice.

Listen, if it can happen, it's always better

if the president works in conjunction with the governor. It's just the practical, so many of the practical questions go away in terms of who's in charge on the ground. Like I said, it's the police chief, the highway patrol, the national guard who's in control,

the practical aspects of that concern me when you're on different pages. So I know the first thing I'd argue to whoever's present is, work really hard to get on the same page with the state and local people if you can.

Well, you can, and if this is 1957 and Eisenhower, whatever your little rock, I think it was then, there's times when that is not going to happen. And I think the president, if it's enforcing a validly past law of the land,

It's when the founders put the constitution together.

“I think one of the values that was there, which I think”

doesn't change as the country gets bigger, particularly is just the notion of being very hesitant to be able to use military forces domestically. And I think they were very sensitive to the abuses that they saw that England had exercised in that regard.

So that's kind of where it gets to me. It's just this notion of we really shouldn't have military personnel

going around doing anything that isn't absolutely essential.

When it comes to law enforcement, you know, by betterizing and exercising the law. But you wouldn't say that in a blank at way. Lincoln was right to use federal troops in the south during the civil rights.

I mean, that's an insurrection. I mean, I don't think a reasonable person can argue that wasn't an insurrection. In the case of Little Rock, I mean, is a clear, I mean, right, just very clear

contravention of federal law and supreme court decisions. Using the guard for domestic law enforcement or arrest seems to me to be a much more difficult case to justify.

“I think the takeaway for us and for our listeners, hopefully,”

is elect people who are going to work their hardest

to actually work with the other people in government art. As we've talked about and are going to talk a lot about in this season, our founders were brilliant to separate powers, not just between the branches, but between different governments, state, local, and federal.

And I think the hope was it would require people because the powers are separate to actually work really hard working together. One of the things which really has stood out to me is just kind of a fresh way of looking at things that's

come through this podcast and some of the others we've done is just a recognition of how much of what we consider to be, how the way American democracy works, is not based in law, but it's based on convention and practice and things that people have just quietly honored over the years.

And the reason for this eruption now is that we have a president who said, no, I don't necessarily need to honor that. I'm going to exercise all the powers that I can. But the extent to which what we see as our American democracy, being based on that kind of convention is kind of a revelation

to me, as I really hadn't focused on that before.

“Yeah, and I think President Trump would say,”

I was elected to disrupt a system that's not working. That's part of what is whole argument. With that, when we elect folks, we have to realize that there are some things that come along with that, in terms of we probably are going to have more friction

between branches of government and levels of government.

Well, I think it's always safe to assume that if you give someone

power they want more. I mean, what it is, but I think there have been constraints of just practice and history and so on, that most prisoners have observed. And again, it's hard for me to evaluate,

but I get offended by some of the things that Trump does. I'm not sure how I would have felt if I were Republican in 1933, and Roosevelt was doing things. And so I think we're probably also seen as a past extension of presidential power in response to a crisis that wasn't

insurrection or like a federal law. No question. OK, thanks. I continue to learn a lot. Me too.

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