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[ MUSIC ] [ MUSIC ] JOHN KATKO: Welcome, America, to "Balancing Act," the show that aims to tame the political circus of two-party politics.

I'm John Katko.

This week, the National Guard.

430,000 civilian soldiers serving their state and their country.

We're joined by U.S. Army veteran and former Congressman Dr. Chris Gibson in the Center Ring to learn more about the Guard's unique mission.

In the trapeze, our two guests weigh in on how the Guard should be deployed, if ever, in moments when state and federal leaders clash.

Finally, I'll give you my take.

And we'll check in with Bloomberg 's Saleha Mohsin with what's happening next week in Washington.

But first, let's walk the tightrope.

The National Guard is a 430,000 strong state military force of citizen soldiers that are trained and equipped to serve the communities they live in.

The National Guard serves a dual role, answering to their state governor, but also the President of the United States, where they can be federalized for deployments both domestic and overseas.

When mobilized by state governors, the Guard assists in disaster relief, de-escalating civil unrest, and enforcing law, to name a few.

But once the National Guard is federalized, their usage becomes limited by something called the Posse Comitatus Act of 1878 which prohibits a president from using federal forces as domestic law enforcement.

This law serves as an important safeguard of democracy, keeping U.S. military from being used to police American citizens.

But Posse Comitatus is not without its faults.

The language of the law is ambiguous and allows for several exceptions where the law can be circumvented.

Take, for instance, the Insurrection Acts.

These multiple Insurrection Acts were passed in the U.S. and authorize a president to use federal forces to enforce law in instances when insurrection is occurring, or when state governments impede the enforcement of the law.

President Eisenhower, for example, used an exception to Posse Comitatus in 1957, federalizing the Guard to enforce school desegregation in Little Rock, Arkansas, when its governor refused to act.

But now, the Trump administration is putting the limits of Posse Comitatus to the test.

Recently, President Trump federalized the National Guard in California against the wishes of Governor Gavin Newsom, authorizing the Guard to respond to protests against immigration raids.

And while a federal court ruled that President Trump's use of the Guard as civilian law enforcement violated Posse Comitatus, the President has nevertheless made additional statements that he plans to federalize the National Guard in Maryland and Illinois, amongst other places, against the wishes of their state governors.

This issue is sure to be addressed soon by the Supreme Court.

So, when is it appropriate, if ever, for the President to override states and deploy the National Guard domestically?

Where is the line between protecting the public and politically motivated overreach?

Let's begin by asking our expert in the Center Ring.

♪ The National Guard serves a truly unique mission in this country.

Joining us to help understand that mission a bit better, is former Congressman, U.S. Army Veteran, and author of the book "The Spirit of Philadelphia, " Dr. Chris Gibson.

Welcome, Dr. Gibson.

GIBSON: Hey, Congressman, good morning, good to be with you.

KATKO, Now, your book credits the success of America with the founders successfully balancing personal liberty with societal order.

And how does all that fit into the National Guard narrative in our country?

GIBSON: Yeah, so an animating principle right at the beginning of our country was this idea of separation of powers, checking power.

Of course, we learned that in school, about the executive, legislative, judicial branches, but they actually carried it over to what was then the militia as well.

So this is the idea of balancing power between the national government and the state governments.

And so with the militia, they actually provided for the Congress to bring forward uniformity of laws and regulations so that if they were ever called into active duty, they would be ready to perform at a high level, and then command actually was shared.

It was mostly at the governor level, unless the militia, now the National Guard, was federalized, and then the President would command it.

So, you know, when you look at that and you look at the dual mission of the National Guard, it has a federal dimension, and that is to augment the active forces, whether it be for homeland defense, overseas deployments, or disasters, either natural or man-made.

This is something that is put in the U.S. Code, Title 10, for Federalization.

Otherwise, it's Title 32 of the U.S. Code, and it's state-controlled.

State governors have used the Guard for disasters, both manmade and natural, including quelling unrest, and sometimes issues in prisons.

So, you know, this is supporting that animating principle at the founding of checking power.

KATKO: So, yeah, trying to understand the tension between state control and federal control, particularly the President's control over the National Guard, is difficult for most Americans to understand.

Could you tease that up for us a little bit more?

GIBSON: Yeah, so, actually, the militia dates back to 1636, so it's even older than the National Guard itself.

But, you know, here what's happening is, is that there is the provision for states to have a force.

I mean, that's one of the reasons why we have the Second Amendment - the idea that we're going to have regulated militias.

We want citizens to be able to participate.

Of course, nowadays, our government provides those arms.

But, you know, so the governor has a force that can actually deal with any kind of issue inside the state, but also there was a need because they wanted to keep the regular army and the professional military force small because they were concerned about civilian control of the military.

So, you know, your active forces were only just several regiments.

You had the Old Guard at the Capitol and, you know, a few regiments out on the frontier to deal with the Native American issues and concerns, but otherwise, you know, a small standing force.

So there had to be provisions there to bring these militias onto active duty.

And so we have them, and over time, that's been backed up by U.S. Supreme Court decisions.

KATKO: So then came the Posse Comitatus Act after the Civil War, and most Americans look at that, and on its face, it says, you can't use the National Guard for law enforcement.

Well, as clear as it may seem, there are a lot of exceptions.

Can you kind of settle those out for us?

GIBSON: Yeah, so, you know, as far as the history of the Posse Comitatus Act, it really comes about because presidents were really pushing the limits of what federal troops, or I should say, militia troops that then got federalized, were doing.

President Grant actually federalized militias and suppressed, put down the KKK - successful at that.

And then thereafter presidents in both political parties used the office of the presidency to federalize militias to break up and resolve labor disputes.

So there was some concern among the people's representatives in Congress in 1883 that they needed to put some limits, some guardrails against potential abuse of federalizing National Guards.

So that's that Posse Comitatus.

And so it does explicitly state that these federalized troops are not to be used for law enforcement activities.

However, as you point out, there are exceptions to that, and, you know, we saw that in 1965 when LBJ was in a dispute with the Governor of Alabama on how to deal with the Selma march.

And And so Governor Wallace was insistent that his force was under his control, and they would, you know, be stopping this march, and Johnson said no.

He federalized the National Guard against the wishes of the governor.

And so, you know, he has that authority because he invoked that authority that the President of the United States shall enforce the laws of the nation.

This is both the Civil Rights Act of 1964, but also the court decisions that had been handed down earlier, including Topeka versus the Board of Education.

He was not alone on this by the way.

President Eisenhower also invoked the same authority.

So you have that authority under enforcing the laws, but then there's also this law called the Insurrection Act.

And that also provides a carve-out against the Posse Comitatus Act too, that allows the President to use federalized National Guard, even including in law enforcement activities.

>> So now you have the President calling out and implementing the National Guard in D.C but also doing it in California which was temporarily at least struck down by the court and he's intending to do it elsewhere.

So let's look at the tension between the three.

First let's start with D.C. How is D.C different than other states as far as implementing the Guard goes??

GIBSON: Well, in fact, it is different, and this comes right from the early days, including in the Constitution and early law that backed that up, and court cases, the same.

And this was this idea that we're going to have a geographic space in America where we would have our national capital.

We ultimately landed in the area of Georgetown.

It was actually a swamp before we moved there.

And so the founders really wanted to make sure that the Congress, the People's Representatives, and the President had extraordinary powers for this national capital.

And so that is provided for.

So even what President Trump is doing today, there's wide agreement that he has that authority.

Now, in law, it's 30 days that he can actually federalize the D.C. police, so there are some limits there, but he's in line with both Constitution and law.

States are different.

The expectation is that the President shall work with the governor.

It's generally so that presidents don't deploy federalized National Guard troops against the wishes of the governor.

But there are exceptions.

And I mentioned to you one just moments ago with President Johnson - he actually had an exception, and that was to enforce law.

President Trump is claiming protective principle.

That's another exception to Posse Comitatus.

He's claiming he has this authority because the President is charged with protecting federal property and federal officers in the line of duty.

So, as you mentioned, a lower court has actually struck that down, and this hasn't been stress-tested against the Supreme Court, but it will be very soon.

Scholars are somewhat split on this, but the majority think that protective principle is probably a reasonable judgment.

We'll have to wait and see on that.

But, of course, you know, that's not law enforcement activity so much as it is protection of federal property and federal officials in the line of duty.

KATKO: Right, so there are differences between D.C. and other states, and also when you implement them in other states, even, if you take the protective posture - just protecting federal interests - that's different than putting them in, kicking in doors with local law enforcement, and going after bad guys.

So that is all part of the concern as well.

We have a few minutes left, or a few seconds left.

And obviously, I just want to make sure we understand this.

There's no clear standard based on what you've said, and there are a lot of loopholes and exceptions that can be exploited by both sides.

Is that fair to say?

GIBSON: Well, you know, this is - a lot of our scholars today believe that Congress needs to step in because, you know, there are some court cases that are relevant here.

1827, there's a key court decision, the Martin decision, that actually gives the President authority to declare emergencies and then invoke the Insurrection Act.

And then there's the 1932 clarification.

This is the Sterling decision.

And what happens here is they say, yes, but the President has to act in good faith.

And these are reviewable.

But still, that provides a lot of ambiguity.

You notice that President Trump recently has been pivoting and talking more about Louisiana.

Expectation there is the governor is going to be very supportive.

So, you know, that is different.

We would probably move to a head in Chicago because the Illinois governor has at least said that he doesn't want those troops.

So one of the ways that President Trump can avoid that potential conflict is to go to a state where the governor is asking for help.

But in the absence of this, to your point, I do think that the Congress needs to step in and legislate to provide for more clarity.

KATKO: Dr. Gibson, thank you so much for a really educational conversation.

And again, Dr. Gibson's book, "The Spirit of Philadelphia," is available now and I highly recommend it.

Now, let's continue the discussion on the trapeze.

♪ On the trapeze we're joined by program director of Applied Intelligence at Gannon University, Benjamin Baughman, and senior fellow with the Cato Institute, Patrick Eddington.

Welcome to both of you, gentlemen.

BAUGHMAN: Thanks, John.

EDDINGTON: Thank you for having us.

KATKO: So, Patrick, let's start with you.

What's the current situation regarding the President's federalization of troops in states like California, potentially other states?

In particular, what authority is he acting on?

EDDINGTON: Still about 300 Guard troops deployed in California.

There are, of course, more that have been deployed here in D.C. One of the primary authorities has been U.S. Code, Section 12406.

It's a very vaguely worded statute, and I think the administration has really exploited it pretextually, because the reality is crime has been going down across the country for the last several years, including murder rates in pretty much every city.

So I don't think that there's really actually a justifiable basis for calling up those National Guard troops, especially the ones from out of state.

KATKO: So, Ben, in what situations can National Guard deployment be essential for public safety in your mind?

BAUGHMAN: Yeah, that's a great question.

I think that's something that the Congress is going to have to struggle with, because I think what the President is arguing, what the Republicans are arguing, is that any crime is bad crime, especially when we're losing lives.

It may look like crime's going down, especially since 2021, when we switched away from the way statistics were unified and reported through the FBI, and now we've got a breakdown in that.

So, you know, when people are losing their lives, it's a big deal, and that is the argument being put forward.

KATKO: So, I just want to follow one quick thing you said, and that is Congress has to act.

What did you mean by that?

BAUGHMAN: So, you know, through today in D.C., the 30-day response of the D.C. National Guard is the way it's supposed to be.

Whenever there's an issue for the Home Rule Act in D.C. beyond territory, and I think people need to start looking at that and determining, is this crossing a line?

And the line needs to be defined better.

KATKO: Okay, Patrick, I'm going to shift over to you A couple of things at first.

The President's crackdown on crime.

What crimes are we talking about, first of all?

And you have a National Guard background.

We thank you for your service.

After the answer to that first question, tell us how the Guard is trained and whether they're prepared to handle policing duties.

EDDINGTON: Well, I don't think there's any question that Mr. Trump has made a lot about violent crime, especially, and a lot of murders that have been taking place.

And obviously, Chicago has been a real problem in that respect, and it's giving him a lot of ammunition - a lot of political ammunition, pun not intended - to kind of drive this entire program.

But as a general rule, most National Guard troops are simply not trained in any kind of 13 civilian law enforcement.

That would not necessarily apply to military police units, but even those units are going to be much more focused on the Uniform Code of Military Justice, and enforcing it, you know, on base and in military contexts, things of that nature.

So I do think that it's extremely hazardous to have a lot of National Guard troops out there who don't have the kind of background and experience, for example, that Ben does, as an actual professional law enforcement officer, trying to engage in these kinds of acts.

KATKO: So, what's the harm, Patrick, in using the National Guard as a deterrent?

EDDINGTON: Well, I think it sends an extremely chilling message, right?

I mean, when you put troops on the streets and people see that, especially when the troops are armed, and the circumstances simply don't justify it - and it's absolutely not justified in D.C.

I mean, the crime rate, especially the murder rate, is at its lowest point literally in years.

So, again, I think the notion that calling up National Guard personnel for this kind of purpose - and it's clearly pretextual in my judgment - really sends a bad message.

It also sets a terrible precedent, because, you know, if Trump winds up getting away with this, if this all goes all the way to the Supreme Court, ultimately, and the Supreme Court affirms what Trump has done, then it will provide new precedents for any of his successors to turn around and try to do the same thing, oftentimes probably for political reasons.

KATKO: Okay, so, Ben, is the President acting out of step here, do you think?

What he's doing - is it in the best interest of the local communities?

Is he undermining the authority of state and local governments, for example?

BAUGHMAN: I don't think he's undermining anything.

I do think I am concerned about the precedent that this sets.

I think that is something that we have in common here, but I don't think that he's out of line.

I think we have three functioning branches of government, and I'm hoping to see that with Congress deciding whether or not the extension is something that should be done, because they should be the ones that do this under the Act.

So I'm looking forward to see what happens.

They're being utilized as force multipliers, so they're not going to be out actively patrolling.

We're not going to see that, whether they stay 60 days, 90 days - they're not trained for that.

What they are trained for, and what they can be used for, is to secure physical locations and free up additional police officers that do not need to worry about those locations to do their jobs.

KATKO: So, how can state governments push back against this?

Will the courts rule against this, Ben?

BAUGHMAN: I am interested to see.

It depends on which court, and who put them there.

Really, I think this needs to be a Congress thing.

I know it's being ruled on in different courts, but it would be nice to see Congress make a ruling on this and decide, okay, the 30 days have passed, are we going to extend it versus Trump doing it and then sending troops elsewhere?

I get the reasoning behind it, that, you know, life lost is something that can't be returned.

So I get the reasoning behind it, but the end doesn't always justify the means.

KATKO: So, Patrick, I want to go back to you with your National Guard background.

First of all, when the Guard was deployed in D.C., they weren't in an offensive posture.

They were basically present, as you noted, right?

And it seems like when they were in California, they were protecting the federal interest.

They weren't kicking in doors with local cops and getting people.

So it's more of a protective status with them.

With that as a background, if that's all the President's trying to do, is he stepping out of what the parameters of his authorities are?

EDDINGTON: Well, as Judge Breyer found in his ruling in California last week, in fact, the Guard was actively engaged up to 150 miles outside of Los Angeles, assisting with cannabis farm raids, running checkpoints, and all the rest of that.

And Judge Breyer did a meticulous job documenting that.

And of course, that's exactly the kind of law enforcement activity by military personnel that's expressly prohibited in the Posse Comitatus Act, which is why he ruled as he did.

Whether that ruling will be if it is, it goes to the Supreme Court - none of that would actually surprise me.

But the other aspect of this, John, you asked about the pushback from the states, and I think that J.B. Pritzker, Wes Moore and some others have done a really pretty good job here in highlighting, essentially, the democracy of what the administration is doing.

This stuff is absolutely This stuff is absolutely pretextual.

It's also a direct assault on states' rights, as far as I'm concerned.

I think it's a head-on assault on the 10th Amendment.

And I'll just go back to, you know, the period between 1988 and 1991, when Reagan and Bush were in office, and D.C. was a mess in terms of murders.

I mean, nearly 500 in 1991.

There were no Guard call-ups then, and I think that's because Reagan and Bush understood that this is a law enforcement function.

KATKO: So, Pat, let me interrupt you since we have a short time left.

And just a quick yes or no answer, and then would it be a much better situation if the governors agreed to bring in the National Guard troops with them?

EDDINGTON: It would be a good situation if the President of the United States respected the decision of governors.

And if governors said, "We don't need it, don't bring them."

KATKO: Okay, Ben, your take.

BAUGHMAN: Yeah, so I agree with what is being said.

I also think that it is our government's function to provide safety for us, and I think that's the argument that's being put forward - that we're not safe.

So until that's challenged and "safe" is defined versus what's being argued, whether crime's going up, whether it's going down, indicators are showing that the Guard's working in D.C.

So does that mean that we keep them indefinitely?

I don't think that's sustainable.

I think everybody would agree on that, and that would be common ground.

So, how long are they going to be there?

What are we going to put in place so it is sustainable?

KATKO: All right, gentlemen, thank you both again.

A great conversation.

Now it's time for my take.

♪ ♪ The National Guard situation is at the forefront of the media these days, for several reasons.

Number one, they were used in Washington, D.C., they were used in California, and they're contemplated being used elsewhere.

Because of that, we're taking a hard look at the issue.

In D.C., the President seems to have a lot more authority to do what he did than he would in a regular state because of the certain jurisdictional issues of Washington, D.C.

But in California, a judge has already struck down what the President did, and it's going to wind its way up to the Supreme Court.

But one thing is clear: The standards are not there.

The Posse Comitatus Act and the Insurrection Acts seem to be at odds with each other, and they're being interpreted different ways by different parties.

And the other thing we don't have is consensus.

National Guard coming into a state should only come in if the governor of that state consents to it, or when the governor is clearly and unequivocally ignoring a law, like they did in Arkansas when he tried to integrate the schools.

In any event, we need a national standard, and we need more consensus.

People should work together to get to the root of these problems, and the National Guard should not become a political pawn in the process.

That's my take.

♪ ♪ KATKO: With us now, from our nation's capital, is Bloomberg's Saleha Mohsin with a look at what's happening next week in Washington.

Welcome, Saleha, what's going on?

MOHSIN: Well, next week, John, we have the Federal Reserve interest rate meeting.

They will decide whether they will deliver what President Trump wants - an interest rate cut - or if they will hold rates steady.

It's also going to be interesting because we'll have Lisa Cook participating in that rate decision as a Fed governor.

Now, Cook is the governor that Trump tried to fire, and a judge has now said that she can continue in her job - that there was no cause or legal authority for Trump to be firing her.

And we'll also see an example of the closest White House and Fed relationship next week.

We are expecting Stephen Myron to join the Fed board temporarily.

He is currently White House Council of Economic Advisors chair for Donald Trump, and he is taking a leave from the White House to join the Fed board right as the Fed may be cutting rates, and potentially, as people may view it, to do Trump's bidding.

KATKO: So, briefly, is the President right that the Fed should have acted sooner on a rate cut?

MOHSIN: He might be.

Powell has signaled a 25 basis point cut.

There's data that's coming in that inflation is now at a place, and employment is now at a place that warrant a rate cut.

And if data is already showing that data is old, and maybe it points to why Trump calls Jay Powell "Too-Late Jay."

That being so data-dependent means you are operating on information from several months ago that may have changed.

KATKO: Now, with the 50 seconds we have left here, could you tell us briefly why it's important for the Fed to stay independent?

MOHSIN: That's the best way to keep inflation in check.

If the Fed starts operating based on what elected leaders want, that's a two-year horizon, a four-year horizon for someone who is just looking at reelection - where a Fed chair and a Fed Board of Governors should be thinking in a long-term horizon for an economy that needs steerage by someone who's not waiting for a vote to see if they still have a job or not.

KATKO: Saleha, thanks so much, appreciate it.

We'll see you next time.

KATKO: That's all for this week.

To send in your comments for the show, or see "Balancing Act" extras and exclusives, follow us on social media, or go to BalancingActWithJohnKatko.com.

Thank you for joining.

Remember, in the circus that is politics, there's always a balancing act.

I'm John Katko.

We'll see you next time, America.

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