The National Emergency Continues to Nationally Emerge

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:00 Clip: Thank you.

0:00:01 Matt: Willingness to fight and win wars on behalf of our nation at a moment's notice. Haven't we had like decades of experience now in seeing what happens when you fight a war at a minute's notice? Like,

0:00:18 Jenessa: Got a reputation for its showing up with a bomb when you didn't ask like

0:00:32 Matt: Happy Friday. It is Opening Arguments. We're reporting live from a national emergency. I'm Matt Cameron, and uh that over there is Jenessa Seymour. And how's your national emergency going, Jenessa? But

0:00:42 Jenessa: Fires have not reached me yet I'm not quite sure when they'll get here apparently the president can't possibly be lying to me right so eventually this blue state will burn down.

0:00:51 Matt: New New York is also war ravaged I'm sure that I've seen that too. Your part, no doubt, it will get there. I was thinking more of the national emergency in which states are invading each other. We're being set up for that way. Feel like we got to say these things out loud.

0:00:59 Jenessa: Can't believe this is real.

0:01:08 Matt: Yeah. This is all real and we got to talk about it. And again, once again, as with last week and all the many weeks before it, I'm going to be using my calmest podcasting voice to

0:01:17 Jenessa: And I'll be laughing while you tell me about an absolute nightmare because that's what I'm, you know.

0:01:22 Matt: You've ever tried dating a surgeon, it's kind of like that.

0:01:26 Matt: Can't specifically recommend dating a surgeon, but wrong nothing with surgeons, just very, very dark people. Lawyers have their moments too, especially immigration lawyers, dealing with the kinds of things that we have to talk about. Just going to be, again, as straight ahead as possible. And because we are independent media, we can tell it like it is, and we're going to give it to you the best we can. Because unlike traditional journalists, we do actually have opinions that we can tell you. So my opinion right now is that we are really, absolutely, even more than we were in the midst of a national emergency that is developing very quickly. And we're going to try to give you the basics on what is going on right now. I know it's a lot to follow. A lot of it ties into what we were talking about last time with the Antifa order and sort of the way that this administration is now governing completely on lies, just completely completely on things are just not true, not just stretching the truth, but just actually lying about what it's doing and why. So we'll talk about all that. But then I understand that on your side of things, we've got some good news, which we are trying to incorporate as much as possible about something that's happening in New York.

0:02:24 Jenessa: It's, fact that this story is happening is not great, but we've got a big fight that I think is going to come down in favor of the side of trans kids. So for New York fighting for our own citizens here.

0:02:41 Matt: It sounds like a good example of the kind of thing that we can do on the state level to protect the rights of our most vulnerable minorities.

0:02:45 Jenessa: I'm going to predict here that this will manage to stay out of federal court if we do it right. So that's that seems to be the plan is to keep this local and not have to ask Alito how he feels about this.

0:02:56 Matt: Is the way. Yeah. I do want to talk a lot more about state resistance because there's a lot of great stuff happening on that level that we could be talking about. So we want to get there. But of course we've got to talk about all this national nonsense first. And I will make sure we cap things off, as always, with a fun footnote about what happens when nobody's driving a car and you have to give it a ticket.

0:03:24 Jenessa: I might have seen this. I'm excited.

0:03:26 Matt: Yeah, I had to do some digging because it raised a lot of questions for me about how we regulate self-driving cars. Once again, technology getting ahead of the law, big theme on this program. But before we get ahead of ourselves, take a quick break and come back and update you on our national emergency. Week we talked about the executive orders having to do with Antifa and the national security memo that was implementing that order. And of course, as we all understand, Antifa is not an actual group, not an actually emergency. There is not actually widespread organized left wing violence or left wing terrorism happening in this country. Much the other way from all of the actual data and information that we have out there, if you care about that sort of thing. Have to talk about what's going on at the National Guard because we have been touching on this as we go. We've been talking about the Insurrection Act possibility, which is certainly something that Project 2025 has wanted, that Trump has been wanting, itching for. And people keep saying things like, well, there's no reason that he would do that. Well, it doesn't matter. It doesn't at all, as we know. He doesn't need a reason. And I'm going to show you kind of what we're looking at here in Portland and in Chicago right now about how much they don't need any a reason to do these things. That in June 7th, we had a memorandum federalizing the National Guard, just straight up declaring that the president was going to be federalizing the National Guard under 10 U .S .C. 12406. And we've talked about 12407 a couple of times, but I really want to be as clear as possible about the law on this, because this is unprecedented, and all of this stuff, they're at least making noises about law, and I think it's important to to sort of call them on what that is. We have a pretty solid judge in Portland who's actually a Trump appointe, Karen Emmerget, who is now putting up with this. But remember, just as a baseline here, 10 U .S .C. 12406 is kind of this weird hybrid thing where the president can federalize National Guard troops from states and send them in when the president is unable with the regular forces to execute the laws of the United States. That's mostly the provision they're relying on, but they have also argued to the federal courts that there is also section two of this statute. A rebellion or danger of rebellion against the authority of the government of the united states, which apparently constitutes, you know, a couple dozen people standing around with signs outside ICE offices. That is the rebellion or dangerous rebellion that is happening. Now, if this is what it takes for the president to be unable to execute the law in the United States, and I'd hate to see what happens in a real emergency. Statute, as we've talked about before, is a very confusing statute. It's been tacked onto a couple of times. It'S not exactly within the sort of Insurrection Act framework, posse comitatus framework, but it also is. Important part for the purpose of the lawsuits we're talking about today is that that in section 3 of 12406, it says, orders for these purposes shall be issued through the governors of the states, or in the case of DC, through the commanding general of the National Guard of DC. Through the states. And of course, we're talking about states like Oregon and California and Illinois that don't want to call on the Federal Guard because they know there's no reason to.

0:06:23 Jenessa: I just I'm always confused about this because we call them the national guard which like makes them sound kind of federally but does what even are they what are they supposed to be because they're obviously not supposed to be doing what they are doing but

0:06:36 Matt: It is a little confusing. There's kind of three ways that the National Guard can be invoked. The National Guard are a state -based organization. The governor has primary control over the National Guard in their state, but they are sort of run by the Secretary of Defense. And in this program, of course, we are continuing to call it the Secretary Defense and the Department of Defense, as it has been since 1949. And Congress has not changed that, as we will talk about. Is kind of a hybridized thing where over the governor's objection, potentially, this is the argument at least that they're making now I don't think this is now this has been done uh once by eisenhower I believe uh one of the little rock protests calling you can see that would happen where you'd have a riot that the state maybe doesn't have so much of a problem with but the federal government feels they need to execute the law and that is a form of rebellion but this is uh this is something else pretty much for the most part what they're talking about is pretty regular crime I want to talk about just how regular this This so -called crime actually is, because again, this is mostly protests, but the assistant chief of operations of the Brooklyn police, Craig Dobson, submitted anaffidavits on September 20th, 2025 in the Trump Oregon litigation, in which Oregon's trying to stop the National Guard from coming in. Much like the LAPD, remember the Lapd was pretty insistent that they could it handle this. And

0:07:09 Jenessa: Right we talked about this yep yeah yeah

0:07:47 Matt: The LAPD certainly knows how to handle a riot. Not even talking about riots though. And they're pointing this out that this is not even anywhere near 2020. And 2020 wasn't anywhere near as bad as of course Fox News will tell you. We're nowhere near that. And I really appreciated something they said here. The ICE facility protests reasonably threaten public safety or public order, PPB, the police could and would utilize its menu of additional resources to define the need and address it. It has not been necessary given the nature of these small nightly protests. In fact, on any given weekend, the nightlife in Portland's entertainment district has warranted greater PPB resources than these small nightley protests in front of the ICE facility. So we're nowhere near a regular Saturday night in Portland, Oregon of what we're doing for police resources. I think this is pretty compelling testimony from the police. And so did Judge Emmerget, obviously. So what happened, of course, is that we have this order in which the president on June 7th is saying to DOD that they are reserving the right essentially to federalize using 10 DOC 12406 up to 2 ,000 National Guard personnel for 60 days at a time, or at the discretion of the Secretary of Defense, basically whenever, to call them into places where they feel like they have to defend federal property and personnel. And this is what they keep relying on is we're going to deploy these extra troops to defend Federal property and personal. And of And of course, in D .C., they're just applying them to just do whatever. Posse comitatu still would apply here, and you can't have them doing regular law enforcement. So what they're

0:09:10 Jenessa: Mean

0:09:10 Matt: Saying is that they're protecting these areas, and they've been doing this pretty broadly.

0:09:14 Jenessa: Protecting federal buildings that was the justification right okay it

0:09:19 Matt: That has been. And that was in 2020 as well. You might remember there were a lot of pictures in Portland of CBP and ICE officers out in the streets teargassing people and otherwise making trouble and throwing people into vans. Funding federal personnel and property as well. This is the beachhead. This is the tip of the spear is how they do it, how they get in. I'm going to just tell you upfront, and I think you understand, is just to get us used to the idea of having federal troops in American streets. There is no other reason that I can imagine that they're doing this. Than that, long -term, the plan is to make sure that they have troops that are ready in the case of any kind of insurrection, anything that resembles an insurrection so he can decoy the Insurrection Act and put that down. That is something they've been planning to do since well before there's any reason to believe there's going to be an insurrection. Course, we were talking before about about the big military event in which Hegseth spoke and got the headlines talking about fat generals. But most importantly, Trump was talking about using dangerous cities as training grounds for our military. Portland is far from a dangerous city. I'm actually, I should mention, I grew up in Vancouver, Washington. So I just went to Portland all the time. I don't know if you've been. I love Portland, one of my favorite places. Can't see the slander on this. I meant to mention last time is that buried in the August 25th, 2025 executive order about additional measures to address the crime emergency in the District of Columbia, this is when they sent in National Guard into DC and tried to take over the police force. There's a little thing here that was buried that not many people seem to notice that I kind of flagged at the time, and I would just like to mention because I think it is relevant. Of Defense shall begin ensuring that each state's Army National Guard and Air National Guard are resourced, trained, organized, and available to assist federal, state, and local law enforcement in quelling civil disturbances. Coordination with the respective adjutants general, the Secretary of defense shall designate an appropriate number of each state trained National Guard members to be reasonably available for rapid mobilization. Addition, the Secretary de Fence shall ensure the availability of a standing National Guard quick reaction force They're literally talking about having a unit, and I believe I was seeing something about it, it was going to be based somewhere in the south, I think in Georgia, which could be deployed within hours to any given place in the country that is having any kind of civil disturbance. That's a new thing.

0:11:23 Jenessa: Strange too because that's the order relating to dc but then it's clearly talking about a nationwide force, so unrelated.

0:11:31 Matt: Not related. Not related at

0:11:34 Jenessa: Come

0:11:34 Matt: All. Just kind of stuck it in there. I'm just looking to see the context. And there really is not. I the context of FDC at all, so I just want to mention that. I think that's important because, again, Trump is talking about this, on September 27th, he truthed that, at Homeland Security Kristi Noem, I'm directing Secretary of War Pete Hegseth to provide all necessary troops to protect war -ravaged Portland and any of our ICE facilities under siege from attack by capital A Antifa and other domestic terrorists. And I've been hearing the word Antifa get thrown around a lot in regard to what's going going on in Portland. And again, this is just something to watch. This is something to resist, this sort of invocation of these boogeymen. Because of course, as we talked about, the order Antifa, and the national security memo both essentially give the FBI very wide latitude, and all federal law enforcement, very wide gratitude to investigate anything they consider to be anti -Christian, anti -capitalist, anti American. I've been trying to write about this since I read these orders, and I still have not been able to finish writing anything because every every time I start writing about it, honestly, I just get afraid. I just start thinking about what this actually means. Point that Republicans, I think this was just deleted, but there were Republicans tweeting pictures from South America, like pictures of riots in South America to pretend that was Portland to invoke the idea that there's something going on.

0:12:50 Matt: Think maybe listen to the actual Portland police who are telling you that this is nowhere near what they have to deal with on an average weekend in the in the nightlife district yeah

0:12:58 Jenessa: On. I mean, it just so proves the point. If you have to go reach for these other examples of what an actual riot looks like because we don't have what looks like an actual riot. Like, come on. Just like boomers getting taken in by like stuff on the internet? Or are they? I guess it doesn't matter at some point whether it's on purpose or because they're just completely not savvy.

0:13:28 Matt: They want to believe they want to have a reason to just have to emphasize again that this is completely and and the federal protected service is actually the force that's responsible for protecting federal buildings where do you already have one they're like there is a service that that does this, that

0:13:30 Jenessa: Take three security guards is what you need. Am I out of of my mind? Oh,

0:13:48 Matt: The federal building in Boston, as I often am today, and just pretty quiet, pretty simple. I appreciate the people. Honestly, after the Boston bombings and other sort of, we've had any number of threats on the federal building. And I do appreciate that we've got people there standing by because I go in those buildings all the time. Clients do too. Is not that. Federal Protective Service itself even said very recently that the protests were low energy, which is kind of a funny critique.

0:14:13 Jenessa: That's a burn on Portland. Get it together, everybody.

0:14:15 Matt: It's very Trump, yeah. Low energy, low energy Antifa.

0:14:21 Jenessa: This is in Portland, so presumably you would want the Oregon National Guard, but for some reason California is involved now? What the hell is that?

0:14:30 Matt: Yes, we will be talking about that. That was yet another attempt by DOJ to get around a court order and DOD. Has been moving pretty quickly, so I just want to break it down. But yes, California is about to enter the chat here. But Pete Hegsith federalized National Guard in Oregon on the 4th for deployment in Portland. Immediately And a lawsuit was filed, as you'd expect, by Oregon trying to stop this. And last Saturday, Karen Emmerget, again, a Trump appointee who's had some fairly conservative rulings and actually was working with Kenneth Starr. That was sort of her big federal work before. She actually interviewed Monica Lewinsky at one point as part of the impeachment investigations. Recent decisions have included upholding gun laws and reversing a against a police officer and completely eliminating that on the basis of qualified immunity. So this is not somebody who's anti -law enforcement in any sense.

0:15:21 Jenessa: Working with Kenneth star is about as conservative as it gets that

0:15:25 Matt: For Brett Kavanaugh, got him pretty far. Yeah, team. I wanted to point out that in And both of these things, actually all three of these things, in California, in Oregon, and in Illinois, have been trying to get around the requirement that this be done through the governor by literally issuing something from the Department of Defense, or the Secretary of War, a memorandum for the Adjutant General, Oregon National Guard, through the governor of Oregon. We can link to this, you can see it for yourself. This is signed by Pete Hegseth, the head of the Department Of Defense, has nothing to do with the governor of these states. And they did this to Gavin Newsom, and they're doing it to Pritzker now, where they didn't want the National Guard, but it says through the governor. So basically what they're saying is we can just issue a memo that says this is through the government, even though the governor has nothing do with it.

0:15:27 Jenessa: Usually through an office means with behalf of said office like I don't know what else that that's through you meaning like I what like I punched a hole through your chest like that it doesn't make any sense.

0:16:27 Matt: Or like we just pass through your office on the way to delivering this.

0:16:31 Jenessa: Like it's not through you if it's without your consent, like in any legal sense of the word.

0:16:35 Matt: It's completely meaningless. And again, it belies the whole thing. I mean, it shows you what they are doing. And again this this is completely fictional. There is no reason to cover this like regular news. There's no reason to pretend that any of this is lawful, which is why a Trump judge hasn't joined it, honestly, because this is just so far beyond what the guard's supposed to be doing. But I just wanted to point out that just as at the beginning, this whole thing is a lie directly on paper. Same thing they did with California, where it just says, through the governor of Oregon, as if that means anything when the governor doesn't want it to happen. Suit obviously has pretty good standing here. It's, you know, mostly saying this is ultra viras and that this is way beyond anything that the president should be able to do with 10 U .S .C. 12406. It does not meet any of the qualifications. And, you Know, the question almost comes down to how far into the facts can a court actually look? And this court finds that she literally says in here that the allegations are untethered from the facts. That's actually something that she says. It is a very polite way to say that you are out of your mind, that you're just bringing complete fiction in here to to me. Of course, about what kind of justification the president actually needs to provide to federalize the National Guard. So Emmergood, in her order, which we'll link to, very good order, takes through the arguments and says that we can't do this. We can't federalize the National guard and send them to Oregon. She specifically, inher order, this is where the thing you just mentioned comes in. She specifically in an order said that the Oregon National Guard cannot be federalized in Oregon.

0:18:01 Jenessa: That's, oh wow.

0:18:03 Matt: That's what happened. The Trump administration was like, oh, great. The Oregon National Guard can't be federalizing Oregon. So let's go ahead and send in the California National Guard. So now you're forcing a state that didn't want to federalize the National Guard in the first place into a different state that didn't want the National Guard.

0:18:18 Jenessa: Feels like a kid arguing like, well, you said I couldn't have a cookie. So I went and grabbed like all the other snacks axe in the cabinet like you know what I meant oh

0:18:29 Matt: Yeah, yeah. Dessert. Also have all these other governors that want to send Federal Guard into their states. So it feels like extra cruel to use a state that is already suing you over stopping this, right. I think that's really making the extra point by doing that. And so Immigrant, of course, held an emergency hearing the other night and was like, what are you doing? It really seems like you're trying to violate this order, and I'm not having that either. So she issued a second injunction, making it clear that you can't send any federalized National Guard, as if that needed to be said. This is a little confusing, but I do want to try to make this as clear as we can. So there are two orders from the Portland federal judge, and the first one blocked Trump from federalizing 200 Oregon National Guard troops to deploy into Portland. And the second one, in response to the the attempt to send California National Guard in, barred the government from sending any federalized guard troops to Oregon. So what happened here is that the Ninth Circuit Court of Appeals lifted that first order and allowed Trump to federalize the National Guard, but did not because the government actually did not yet appeal the second order, has not lifted the second order. So we're in this weird position where they can federalize them, but they can't deploy any of of them.

0:19:42 Matt: It's a little confusing, but again, this is minute to minute as we go here. But of course, let's hear what Stephen Miller has to say about it, because we have to do that, unfortunately. Is a particularly good clip because I know we watched this earlier, but Stephen Miller seems to break. His firmware needs an upgrade, I think.

0:20:00 Clip: Thank you so much for joining us, by the way, you have called, you've called the district judge's ruling, blocking the deployment of National Guard in Oregon, legal insurrection, does the administration still plan to abide by that ruling?, Well, the administration filed an appeal this morning, with the Ninth Circuit, I would note the administration won an identical case, in the Ninh Circuit, just a few months ago, with respect to the federalizing of the California National Guard, under Title 10 of the U .S. code the president has plenary authority has steven steven hey steven can you hear me it seemed steven I apologize it seems like we're having a technical issue uh we'll try to fix that and get back to you after a quick break

0:20:38 Matt: He's just staring. And cut. Anyone tried unplugging Stephen Miller and plugging him back in again?

0:21:01 Jenessa: Definitely not actually having a technical issue but he stares so with such stillness you could almost think for a second that the camera froze yeah

0:21:12 Matt: No, yeah, he really is like an android response to realizing he just said the wrong thing. He used the word plenary on live TV to describe the president's power, which of course, you know, would be sort of an absolute power, which the president does not have over the National Guard. That is not how it works, clearly by statute. We have to say that the administration did not win an identical case in the Ninth Circuit just a few months ago. This was not even close. Wasn't even anything resembling an insurrection in LA, but the protest was many, many times over. This is less than 100 people in Portland. And there were at one point about 20 ,000 people. And again, the LAPD still still said they could have handled it, but that's a very different thing.

0:21:47 Jenessa: They also didn't little bit they won ish was not to do what they're asking to do now like it is just so fundamentally different friend. I

0:21:57 Matt: It was still federalizing the Guard, but, you know, just trying to keep the peace. And the Ninth Circuit in its order, because, you remember, again, I know there's a lot of procedural history here, but Charles Breyer, Brother Stephen Breyer in California did stop the federal government from federalizing, and then the NinTH Circuit reversed that on and right now that's the way it is. But in its findings, the Ninth Circuit specifically found that the president lawfully exercised a statutory authority because there was significant evidence of protesters' interference. Now, whether you agree this is something the National Guard needed to get involved in or not, there were at least facts on the ground that protesters were throwing things and pinning down officers and their concrete chunks and bottles of liquid and large commercial dumpsters were used as a battering ram. This is all in the findings. Molotov cocktails, tales, vandalized property, whatever else. Again, you can debate about how necessary it is, but under a highly deferential standard review, defendants presented facts that permitted the panel to conclude that the president had a colorable basis for invoking 12 -406 -3. That was in the California case. Now, those were facts, and we don't have such facts. An immigrant goes through what's in front of her and relies heavily on the police saying, you know, this is what we see right now. Here is everything. And she goes through basically like the most trouble that has been caused in these protests. Almost completely peaceful protest, completely under control, not much worse than the average Saturday night in Portland in any given neighborhood. So this is pretty simple stuff. It's not the same.

0:23:23 Jenessa: Think that's really important too to set that standard of like what defines a legal peaceful protest is not that not a single person ever showed up and did one singular illegal thing like one can guarantee you that there isn't going to be some like drunk person's going to stumble through and I don't know publicly urinate and like all of a sudden it's an illegal protest Like, that's not how things work.

0:23:51 Matt: All they need.

0:23:52 Jenessa: The protest is, by and large, legal and peaceful, you don't get to characterize it as, like, a riot because one guy threw an empty bottle, you yes as

0:24:02 Matt: From the facts, remember? We're not tethering anything. On On this injunction, I just wanted to note how sloppy this work was because the Ninth Circuit in the decision I just read you specifically found that the president's determination is reviewable and they could look at the facts and they could determine if there's a culpable reason to use this. Government went ahead and turned around and said in this case that the decision to use 10 U .S .C. 12406 is unreviewable, but as noted in the footnote from Judge Emmerget, but they acknowledge the NinTH Circuit has held that this determination is reviewable. So they're just arguing directly against what the Ninth Circuit just held. They have to, I guess, if they want to try to say that it's plenary power. That's what they're going to try and do. Power, by the way, has been used a lot for immigration, very much a Roberts Court kind of thing of just this growing idea that there's this exceptional power in immigration cases, that the federal government has this enormous amount of deference that should be shown whenever they're exercising what they call plenary power of immigration stuff. And it's a dangerous precedent. I've always said that, and it's certainly looking like that here, if you're going to continue to say that the president somehow has this kind of exceptional power over the National Guard, which he just doesn't.

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0:26:44 Matt: Let's move on very quickly to Illinois. That complaint was filed on the 6th. Has been coming for a while. He's been talking about sending troops into Chicago. But do want to footnote too in v. Trump. And is something I think that is worth mentioning again and again. On September 5th, 2025, President Trump signed Executive Order 14347 entitled Restoring the United States Department of War. Purporting to assign Department of war as a secondary chosen name for the Department of Defense. However, However, this complaint will refer to the agency by its statutory name, the Department of Defense, as will this podcast, as only Congress is vested with the authority to change the name of cabinet -level executive agency, and it made no change. I hadn't actually looked at the executive order because I wasn't sure how that worked. Obviously, Congress has to change the name of cabinet and the Department of Defense has been called that since 1949. Yes, it was originally called the Department of War, but I think it's a nice thing to recognize that maybe we shouldn't just be having an entire department that just does war, that maybe we should be in a defense footing. White House strongly disagrees. And I'm just going to read from this executive order because I hadn't looked at the origin of this whole Department of War thing, and it's stupider than I thought. Name Department of war, more than the current Department of Defense, ensures peace through strength as it demonstrates our ability and willingness to fight and win wars on behalf of our nation at a moment's... I'm sorry. I just hadn't read that out loud to myself. Itself. Willingness to fight and win wars on behalf of our nation at a moment's notice. That's the best way to fight wars.

0:28:10 Jenessa: What as opposed to like late what anyone

0:28:13 Matt: You know, I think, haven't we had like decades of experience now in seeing what happens when you fight a war at a minute's notice? Like, can we try that?

0:28:21 Jenessa: Was like I don't know that america they seem a little slow to show up like no that was never in doubt guys we

0:28:31 Matt: You shouldn't just invade Iraq over a weekend because you think you're gonna to be greeted as liberators. It's just not a good plan.

0:28:36 Jenessa: Got a reputation for it's showing up with a bomb when you didn't ask like

0:28:41 Matt: Funny about this executive order that I think it's just worth mentioning because we hadn't talked about yet, is that he says, I have therefore determined this department should once again be known as the Department of War, and the secretary should be known. As the Secretary of War. And I should be, I should be known the King of Massachusetts, but nobody calls me that. He calls it a secondary title. And I guess the idea is that, you know, unlike the Gulf of America thing, where they do technically have the ability to rename the coastal boundaries of the Gulf of Mexico, and then they're trying to say the entire Gulf of Mexico is actually Gulf of America to the point that they're forcing Google Maps and Apple Maps to put it in the middle, like in the actual international waters. It's causing real problems with Mexico. This is even stupider than that, because there is at least some geographical geographical legal authority to rename our coastal boundaries like the part that actually is the 10 miles off or whatever but this is just a secondary suggested title this is just what we want you to call us and then they get mad at the media for not doing it so media don't do it stop calling them the Department of War the

0:28:54 Jenessa: It is because you can't make me absolutely not discovering

0:29:41 Matt: Solution starts with us so

0:29:43 Jenessa: That I just should call them any don't threaten me with a good time I'm gonna start coming up with all kinds of ideas yeah

0:29:52 Matt: Such a throwback to sit in the letterhead now that he's issuing all this stuff in. Once again, sending it in through the governor of Illinois, not actually with the governor Illinois. So there's a lot going on here. We'll be following as it goes. Hearings are scheduled. Things will be happening. But I just want to point out again, this is a national emergency. This is something that we need to follow closely. And if it comes to your city, it needs to be resisted. And If you know anybody in the National Guard who can not do this and and can find their own ways to resist and protest, anything we can do to slow and stop this. Because, you know, I do have faith at the end of the day, the National Guard, you know I actually do have some faith in the independence of the American military as it is, and I think it was a good sign the way the military reacted to that meeting. Sitting through it basically, just getting through the best they could, as professional as possible. But the National guard even more so, because the National Guards is really just us. It's just people that are trying to get into college and get through their weekends. Up to help with disaster relief, not to stand in front of ICE buildings and look at people in frog costumes getting pepper sprayed, which is what's happening now. The way, everything that I've seen out of Portland has been ICE or federal authorities kicking things off, kicking off the violence, as often happens at police protests, but especially so. I've not seen anybody provoking, but maybe I'm missing something.

0:31:07 Matt: Other quick note I wanted before we move on to what you've got for us today. I did want to ask, what is the federal government doing right now? Because Marshall Project and Cato have both had some really good numbers recently on what is actually going on with the federal government and where federal law enforcement is. At this point, we've got more than 28 ,000 federal law -enforcement agents that are not doing the jobs they're supposed to be doing who are chasing down immigration cases.

0:31:07 Jenessa: What even is federal law enforcement is Is that just like the FBI?

0:31:35 Matt: DEA, we've got half of the DEA. Two -thirds of the Bureau of Alcohol, Tobacco, Farms, and Explosives. One in five U .S. Marshals and FBI agents are all doing ICE work. And that's not even to mention the 8 ,000 or 9 ,000 officers who've been deputized under ICE under the 287G program, which we have talked about to some degree, but that's one thing that's a huge force multiplier.

0:31:56 Jenessa: Would be state and local officials. Yeah.

0:31:58 Matt: That are voluntarily working and training with ICE. Know, we've already got significantly fewer people being charged with money laundering, uh, which is usually how they get drug traffickers about 25 % fewer people, um, last year. Ice chiefs, chief of staff Jason Hauser told the Marshall project, it's a good time to be an American born criminal, uh, not legal advice, by the way, I always have to drop that promise. Promise that's not legal advice, but, you is what I've been hearing out of the U .S. attorney's offices as well, is that U .s. attorneys are being absolutely overloaded with immigration cases. That's all they're doing. Like, this was even worse than after 9 -11 when everything they were doing had to touch on terror. Like everything has to touch in immigration. And it's so much stupider because most of the immigration cases are either unlawful entry or unlawfully re -entry, the unlawfulness re -entery can be a pretty serious felony depending on the circumstances, but they're both pretty minor misdemeanors and And they certainly don't compare to fentanyl trafficking. You know, you know that they're scaling back white collar crime in all of this, like the corruption and money laundering and fraud and employment fraud and everything else doesn't really matter anymore.

0:32:56 Jenessa: But that's Trump's friends, so that's perfect.

0:32:58 Matt: Those are the people he's pardoning. No surprise there. And they explicitly said that they weren't going to be enforcing the foreign and Correct Practices Act, which prevents companies from bribing other foreign countries. So yeah, are our priorities. This is what's going on. Just But some numbers for you before we wrap up here on this subject. 17 ,000 extra agents, including 14 ,500 federal criminal law enforcement officers out in the field. Just a great breakdown here from from Cato I'm going to have to link to, 11 people from the Bureau of Prisons. It's kind of a strange number. 35 people in the Department of Defense, 2 ,840 FBI agents, 2 .181 DEA agents. They're drawing from every part of the federal government, including USCIS, which is supposed to be just doing immigration applications. They do have some law enforcement around fraud. HSI Homeland One Security Investigations, I have heard, has diverted a lot of the stuff that it does around human trafficking, sex trafficking, even things like art theft and art fraud. They're not doing any of that stuff anymore. They are just chasing down undocumented people. This is what Pambandi ordered at the beginning of the administration, was that they were going to be refocusing federal efforts on this, on basic, low -level, dumbass immigration offenses.

0:34:09 Jenessa: It's all they care about.

0:34:11 Matt: It's deprioritizing crime. So, you know, if you thought you were voting for law and order, it turns out you were voting for mass deportation, which again, I know a lot of people did vote for, but thought you should know.

0:34:20 Jenessa: Lot of people voted for it when they didn't know what it was going to look like.

0:34:23 Matt: Is kind of right there in the name, mass deportations. I do not know what you thought that was going to look like, but held up the signs and chanted it and, you now, I think that is what they wanted. Thing I'm trying to try to track is the ways that the states are pushing back against the federal government. I know that there's a lot of coordination right now between AGs across the blue states, and I'd love to talk more to somebody who knows more about that. You've got one example today from your home state that I wanted to get into. So what is going on with equal protection in new york that we should know about yeah

0:34:49 Jenessa: Yeah. So I'm over here in New York pretending everything's fine. And on the state level, things are doing okay. York is a very purple state and a very politically diverse state. So it's not like we just live in liberal utopia and nobody's fighting about anything. It's more that we're having, to some extent, we're have reasonable fights about reasonable things. And then in other ways, we're just doing a good job of getting rid of the ridiculous fights. Issue at hand that made me want to bring this up today, it's a developing story, but the Massapequa School District passed a resolution saying, oh, in accordance with the executive order out of the Trump administration, administration we are not going to let trans kids use the bathroom or locker room uh that matches their gender identity they're going to have to you know they basically use the definition that trump's executive order did which is like you're not even sex assigned at birth it's like you're sex at conception which isn't barely really a thing but whatever um yeah yeah in terms of of actual, like, it's absolutely bad science on every level, but anyway, this is Long Island. Yes, it is.

0:36:01 Matt: Does that take a while to like bad science uh wait wait hold on it's long island this sounds like we were just talking earlier this week on monday about how long island was the were the pioneers in getting prayer into schools uh

0:36:18 Jenessa: Long Island, what a, what fun place it is, um, I have, uh, some history dealing with their local government, they are, um charming, not really, um so quite a bit, yes, uh But Nassau in particular, so this is out of Nassaw County, the County That Brought You George Santos, like they are continuing to just bring us their best. So, the school district passed this anti -trans resolution. Immediately, the next school board meeting, I think there's going to be one. Of when we're recording this, it will be tomorrow, so we'll have been yesterday when this airs. But recent school board meeting, as of the time we are talking, parents showed up very against this. A lot of great people speaking out about how this hurts kids, about how just, like, wildly unimportant this is. Like, this is helping no one. This is hurting people to bother to do this. Just leave it alone. Quite few people pointing out, you are going to get sued. And sure enough, the New York Civil Liberties Union showed up immediately to say, absolutely not to this. The NYCLU, it's the Newark chapter of the ACLU. Apparently most states do it as ACLU of Connecticut,

0:36:32 Matt: A bunch of reactionaries down there in Right.

0:37:47 Jenessa: ACLU of New Jersey but we have to be New York about everything so that's it it's the nyclu um get a hold of this complaint because I think it is a very internal administrative thing for now they are raising this with our commissioner of education within the state but they have raised a complaint on behalf of a trans student to say this violates states, different New York executive laws, New York civil rights law, the New York constitution, our human rights regulations, the new York division of human rights guidance on protections from gender identity discrimination, just a laundry list of protections that we have in New York.

0:38:31 Matt: New York, but I'm not hearing anything about the federal constitution.

0:38:34 Jenessa: So here's the thing. I think we're going to be able to keep this one out of federal court because, president wrote that executive order, right, where he was like, oh, we're telling you what gender is. Well, that was immediately challenged and enjoined in different ways. And very shortly after, are James, the Attorney General, and Dr. Betty A. Rosa. She's our Commissioner of Education. They put out a letter that said, hey, we're getting questions from schools. IX talks about in schools how to handle gender discrimination. Congress are the people who change this, not the president. The president can't just change by executive order how Title IX works. We're telling you how Title IX works in New York because we have rules about this. Thing that I think is going to be really critical in litigating this is the fact that we just amended our constitution in New New York. So a comparison, the federal, we don't really call it the Equal Rights Amendment, but the federal Federal equal protection, where does that come from? The 14th Amendment, right? And it's the second sentence of the first section of the 14th amendment. All the rest of the 14th ammendment is dealing with, recovering you from the Civil War and how to treat formerly enslaved people. But this sentence right here. State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. We talk about this at some point, that privileges and immunities, that got gutted almost immediately, so that part of the sentence is mostly useless. Shall any state deprive any person of life, liberty, or property without due process of law, law nor deny to any person within its jurisdiction the equal protection of the laws. So the problem is that doesn't name anybody and it doesn't say what laws and in what way. And this is how we ended up with like decades, a more than a century of litigation about who this is. So it was really obvious this was passed right after the Civil War. They meant Black formerly enslaved enslaved people. But, that's how we got strict scrutiny as the standard for race. But we end up with intermediate scrutiny is for gender and illegitimacy. And we're going to put ethnicity and alienage in strict scrutiny and everything else is going to get rational basis like disability discrimination under the federal equal protection. It's just rational basis test. The only reason you have that extra protection is things like the Americans with Disabilities Act. So, like, it's this whole mess, right? Because it doesn't name anything and it doesn' t explain and you just always have to go ask Clarence Thomas who he thinks ought to get protection. And the answer is nobody. So, in New York, we fixed that. Our Equal Rights Amendment has always had some groups named and we just named a bunch more people. So, this is how ours reads now. No person shall be denied the equal protection of the laws of this state or any subdivision thereof no person shal because of race color ethnicity national origin age disability creed religion or sex including sexual orientation gender identity gender expression pregnancy pregnancy outcomes and reproductive health care and autonomy be subject to any discrimination in their civil civil rights, blah, blah. And we also have a section that says, um, in this section shall invalidate or prevent the adoption of any law regulation program or practice that is designed to prevent or dismantle discrimination. So, hey, also that thing where you're like, oh, trying to help people who have been discriminated against is the real discrimination we wrote into our constitution that that's not a thing so strong protection in here um

0:42:37 Matt: I'm looking at this language now. This is kind of just catching up with hundreds of years of litigation

0:42:42 Jenessa: Yeah

0:42:43 Matt: 14th Amendment means by just saying what it means.

0:42:45 Jenessa: Easy to say like oh yeah you know New York you guys just whatever this is a purple state and also the process to get things into our constitution. It has to pass our legislature two years in a row, both houses, and then it has to go on the ballot and we have to vote for it. So like it was not easy to get this into our Constitution. And yet here we are, it was on the ballot in 2024, in the year when New York inexplicably slipped slightly more towards Trump. We also voted for this. I think it was 70 -30 in favor of this thing. A lot of it was pitched as because it's protecting reproductive health, this should protect against any abortion ban. So that would be really helpful. That really got things moving in that current political climate. This is something other states can do if it is decided decided that what this school district is doing violates our state laws our state constitution say the school district doesn't back down which it seems they're not going to because they they pass this resolution they put in a line about like by the way like I forget what it was they They like either gave a little extra funding to their lawyers or they like, there was something they did to get their lawyers like activated as part of this process. And everybody was like, is that because you think you're going to get sued? And they were like, no comment. But like, obviously they knew what was coming. And, parents talked about this in the school board meeting of like, so you're going to just like waste my tax dollars defending a lawsuit you're gonna lose against the New York Civil Liberties Union? Are you kidding me? Like, drop it. Presuming they don't drop it, if our state courts say our state constitution bans this, there's not appealing this up to the federal court. The only way to do that would be to somehow find that a federal law or the federal constitution does ban it. Like, it's not going to really work, you know? So we should be able able to keep this in -house and have a nice not civil in - house conversation about this um for example, they had their Supreme Court say our state constitution protects abortion. The only way you're getting rid of that is with a federal ban on abortion. Dobbs didn't affect that. So it's the same concept. Our state has an arduous process to get this in the constitution and we pulled it off. So I'm saying that every state is going to do this or this more difficult than others, but the more local your politics gets, the less partisan it is, the easier it is to get people to rally together and work on projects. So, want to call it in advance how this one is going to go. To me, it is very clear under New York state law, this resolution cannot stand. We have made discrimination on the basis of gender, including gender identity, unconstitutional and illegal under every law and regulation you can possibly come up with. With and unless the Fed somehow finds a way to sneak in here with a statute, it's

0:46:31 Jenessa: So great the school district is trying this, but really great to see that community stand up loudly in that school board meeting. Really great to See the NYCLU jump on this immediately and great to see that this amendment that we passed into our constitution has an immediate obvious impact it's going to make it so much easier to litigate this case and protect those kids oh

0:47:00 Matt: Sounds downright frivolous when you're reading this amendment. And I have to think that no matter, and again, I hate to do this sometimes with these arguments, but you do have to reduce it sometimes to how much money it's going to cost to do something this pointless. Meaningless. And I think that the parents are absolutely right to bring that to the school board and say, why are you wasting our money bringing up litigation that we don't want and that is going to just completely fail? It doesn't have a chance. I think That's very important. And it's also a good, this is a good reminder overall that our constitutional rights as guaranteed in our federal constitution are a floor, not a ceiling. If If the states want to set a higher ceiling and raise the bar as New York has here, and as Massachusetts certainly should, This is great. I actually was not familiar with the text of this. This is quite an amendment. I mean, this is really bringing equal protection into the 21st century when you add gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive health care and autonomy. That's great. Just among other things. There's a lot in here. But instead of making the courts guess or try to retrofit something from 1865, yeah, no, this ist good.

0:48:04 Jenessa: We were of course really happy to see disability in there um for anybody was on the fence that sold it for some people um age is in there age is normally rational basis age discrimination outside of employment is totally legal like it's a huge problem and

0:48:25 Matt: This es very encouraging. And this is exactly why state and local politics are the way to go. And I really believe in the power of state referenda. I think that getting things on the ballot and having citizens work with them, I've worked on a couple of ballot measures myself, it's just an exciting thing to do. And this ist absolutely worthwhile if you can get something like this going in your state if you don't already have it.

0:48:42 Jenessa: Yeah. Hey, and New Yorkers, we have local elections coming up very soon. Do not forget to flip your ballot over because we still are doing paper and pencil ballots. And then we print the ballot measure on the back. And like half of you don't flip the ballot over and don't even vote yes or no on the ballot proposal. So flip that thing over. Don't forget.

0:49:03 Matt: Yeah, always, we've got those too. Waste your votes. Get out there and do it. Alright, so that's good news. I appreciate that. That's exactly the kind of thing we want to be talking about at the state level, about what we can actually be doing to push back, because the federal government is not the be -all end -all of government, and there are ways to keep this stuff at the State level and keep the fight going. So let's come back and talk about a very different kind of fight with cars that don't have drivers and what we're supposed to do when they do things wrong. I'll be right back.

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0:51:01 Matt: Have never seen a Waymo, but I learned about Waymos because people kept setting them on fire in California. That's the only reason I know about a Waymos. They are self-driving cars that are all over California, or at least all over San Francisco. I saw there have been about 600 parking tickets issued for Waymos in the past year, which is quite a lot of parking tickets for people, for cars that don't have drivers. So self -driving cars, I have not seen them around in my area that much, but apparently they're becoming more and more common. And there's a story that you may have seen a couple of weeks ago in which police in Northern California pulled over a Waymo and found that it had no driver, obviously, because it's the whole deal. Had made an illegal U -turn, which I think will happen sometimes if you're going on maybe outdated GPS maps. Got officers observing a vehicle on the road making an illegal U -turn, and what do you do? Because there's nobody to write a ticket to. And so, of course, they had to actually call Waymo. But there's no state law that controls this, and I got kind of interested looking into how this all is supposed to work. Much as I know right now about how we can regulate self -driving cars, it seems a little strange that we've allowed these things on the road without actually regulating them, because nobody actually thought to write a law for a car that doesn't have a driver, which makes sense, I guess. Actually does already have some regulation for state law for autonomous vehicles. Requires that there be a plan filed for autonomous autonomous vehicles that, going to operate without a human driver, and they can be held accountable for violating applicable and you can actually a citation. The vehicle can get a citation. I guess the company ends up having to pay it that runs it, but there's no provision for this in most states. California is trying to put something up now. And that was Arizona statute 28 -9702, if you want to look that up, we can link to that. But California is trying to pass something right now, bill AB 1777, that would actually allow, they're observing violations of vehicle code or any other local traffic ordinance, allows them to write up a ticket against the vehicle. So this would actually be a ticket against the vehicle itself as I understand it again it's a little confusing but there's a lot more that has to be done but example the in in these cars they have built in I have learned they built in sensors that recognize police lights and they will politely pull over and start flashing their hazards if if they see the police are trying to pull them over so the robots are aware that they're being pulled over but

0:53:21 Jenessa: Whole thing, it just has vibes of like there's no rule that a dog can't play basketball it's like yeah but there is though because isn't anyone allowed to just do this without a law saying you can't like it seems like you shouldn't have to have a law that says you can't it just should be implied that there has to be a driver and we need a law saying you can have a driverless car, not like, like, if I just put a giant RC car going down the street, apparently that's legal? Like, didn't have to be in it? It's

0:53:56 Matt: As long as the car itself is street legal and is behaving, I guess nobody really noticed before. By definition, an autonomous vehicle should not be speeding unless, you know, maybe with the U-turn thing where it's got its information wrong about the zone it's in. I don't think, I couldn't find any examples of Waymo's or automated cars speeding that might've happened. A whole other thing we got to talk about another time uh when they're actually getting involved in civil because you know there have absolutely been like cyclists invented injuries uh kind of a funny story where a guy actually tried to evade a bank robbery by jumping into a waymo and still got caught uh just weird stuff like this that happens when you know they're suddenly now uh of a conspiracy accidentally uh

0:54:13 Jenessa: Somebody. Like, okay. The car's just pulling over for the cop.

0:54:36 Matt: Even know what to do with a lot of this it reminded me though of jaywalking I want to talk about this very quickly before we go. I don't know if you're aware of this, but the auto industry created the crime of jaywalking. That was not a thing that existed before. And it's a real kind of urbanist thing that I like to point out. Jay actually is kind of a slur for a hick or a country person. So they created this idea that if you are crossing the street in an unauthorized fashion, that you are a bumpkin. You don't understand how cars work. This is something that was kind of introduced by the equivalent of ALEC, the American Legislative Executive Committee that puts out rules and statutes for different states to use. And so the auto industry essentially created the crime of jaywalking so that they could help to normalize and create safety rules. Because so many people, when cars first came out and got into car accidents or were hitting, pedestrians and bikes because people just weren't used to having cars on the road. And now our cities are built for cars in a much different kind of way but you know the idea the industry had to move the law forward had to create a new kind of crime to regulate itself basically or to make sure the cities could regulate cars kind of reminds me of that yeah

0:55:39 Jenessa: Never forget, I had a driving driving instructor who was like you know somebody walked out in front of me in the middle of a a block and stopped of course and he was like the pedestrian always has the right of way and I was like even in the Middle of the block and He goes what are you gonna do hit him I was like yeah all I guess you're right yeah they do always have the right away like what do you least

0:56:01 Matt: That is pretty easy rule uh actually I appreciate I think it was in lebanon I learned in turkey I think they made this as well uh if you're walking in a place you're not supposed to be the drive the car will speed up that's sort of the cultural understanding is that they're going to go faster, just to warn you. I appreciate the directness. I will say that San Francisco has actually some sort of situation in which they have deployment permits for Wemos, right? But that still doesn't really deal with what happens when they violate the law. So they do have almost like a driver's license, essentially. And this is what Arizona was doing, too, was setting up these plans. Again, technology is just getting way ahead of the law as as often happens with these things true

0:56:13 Jenessa: My god yeah yeah especially the way those tickets are designed is like you penalize me you know if I get a hundred dollar ticket like that that hits my budget for the month you give waymo the corporation a hundred dollars like oh no like they they don't give a shit so

0:57:00 Matt: Apparently they're parking all over the place with these uh parking tickets so double parking and parking in restricted zones but it's hard enough for humans at least around here to read parking signs I mean they can be extremely complicated to figure out exactly when you're allowed to park where so I can only imagine yeah pretty hard to get that done by robot yeah

0:57:03 Jenessa: The system is being tested to its limits oh yeah oh I'm on a campaign in my neighborhood every single street is uh side parking on tuesdays and then on wednesdays and I'm like so what do I do if I'm gone between tuesday and thursday where the hell am I supposed to park nowhere nowhere just get towed I guess or like park on somebody else's lawn like I don't have a driveway I don' know

0:57:42 Matt: Let alone like some of these blocks in Boston or Somerville, you look around and there's like the parking sign is like two signs. It's like two sides along explaining exactly when and where and how you can park and which permit you need.

0:57:48 Jenessa: Just don't just don't even be here leave see

0:57:55 Matt: Just designed to give you a ticket. So I can't really blame the cars for getting parking tickets because I've certainly got plenty myself and I may or may not have been towed a few times myself just being an idiot about parking. But so just another thing to watch about kind of our ongoing theme about the law and AI and trying to understand how we can fit all this into our increasingly dystopian society. So So that's been our update from our National Emergency. We got some good and bad news. We've got some weird news. I think that's the usual balance that we want here on opening arguments. So we'll be back next week, and going to be talking with my constitutional law professor Michelle Adams who has literally written the book on the legacy of Brown. It's a great conversation. I'd be really excited for you to hear it. And we'll back next Wednesday to... I think we're going to hitting on some more ridiculous right -wing stuff. We're going to be back in the rhythm there. And then we'll come back Friday to give you some more updates on our national emergency. So, we'll see you then.

0:58:43 Jenessa: Ya

0:58:48 Clip: This has been Opening Arguments, produced by Thomas and Lydia Smith, with editing help from Peter Baird. The intro is by Thomas Smith. This outro is by Matt Cameron. Support the show at patreon .com slash law. Contact us through Patreon or openarguments at gmail .com. Make sure to follow our blue sky at OpenArgs. But most of all, please share the show. Thanks for listening.

0:59:19 Matt: Right. Well, yeah. Wait, hold on. When am I supposed to start segments with All Right anymore? I can do this.

0:59:25 Jenessa: Try again.

0:59:27 Matt: Reset. Okay. Oh, man, I was about to say so also, which is the other thing I'm not going to start a segment with.

0:59:31 Jenessa: The banned list.

0:59:35 Matt: Wait, I can do better than that. I should be, I should be known the King of Massachusetts, but nobody calls me that.