Illinois, on the impact of federal threat.

Some local reproductive care.

>> First off tonight, claims of imminent danger facing immigration agents are not reliable.

So says U.S.

District Court Judge April Perry who just moved to partially grant an emergency request to block the Trump administration from deploying National Guard troops in Illinois.

Perry explained her decision from the bench and said she will issue a full written opinion tomorrow.

The move is just the latest in a series of legal fights across the country in September, a judge blocked deployments to Los Angeles.

And earlier this week, another court halted deployments to Portland.

Joining us to discuss more are.

Harold Krantz while professor at the Chicago Kids College of Law.

And via Zoom, Brandon Smith partner at Holtzman, Vogel, a national law firm that focuses on government business and advocacy.

He's also former chief of staff to the Tennessee attorney general and has worked for the governors of Kentucky and Kansas.

Gentlemen, thanks to both for joining us.

So this is happening late.

All of us are just getting this information about this ruling, partial ruling that we're getting from the federal Judge April Herald first, what is your reaction to this temporary injunction in the National Guard deployment?

I think it's a victory for the people of Chicago and the judge.

>> Listen to the evidence.

And this is really a factual question about whether there is an assault.

>> On federal troops on ice in Chicago or whether or not there is the ordinary law enforcement can protect federal buildings on tallies.

And she said that the evidence was unpersuasive was kind of made up, that there is no, there's no showing that there's an inability of Chicago law enforcement to protect.

I will building Zahn and ICE and until she sees that support, that there's no reason to federalize the troops and there's no lawfulness in federal election, the troops.

And so she made her opinion quite clear.

Brandon Smith, some question to you.

>> Yeah, I mean, we were all just now reading the opinion from Judge Perry as it's coming out late this afternoon.

But the reality is that over 200 years, the United States Supreme Court various courts of appeal have largely given discretion to the executive branch to determine when so circumstances were sufficiently dangerous and and justifying the use of the National Guard and the sort of the point.

>> Also under the Title, 10 section one to 406, of the U.S.

code.

The president can deploy the National Guard in response to a foreign invasion, a rebellion or to enforce federal laws.

Judge Perry is casting doubt on the Department of Homeland Security's assessment of protests in Chicago arguing that they have not been severe enough to warrant title 10 deployments.

What do you make of that argument?

>> Well, it's an interesting approach that the judge is taking here because she doesn't have much discretion to make that call on her own.

In fact, of the constitutional structure the president is operating, what will be called the apex of his executive or commander-in-chief authority.

Judge Perry decision largely seems to rest as what we can tell so far on how her lack of seeing credibility and the claims that the situation on the ground is dangerous.

But it's not her decision.

At the end of the day, the president has been invested with that authority under the Constitution and statutes and that has been a president that's been upheld for hundreds of years.

It's hard to how this decision gets up, how that's when it's inevitably appealed.

>> Harold, to that point, the judge or excuse me, the attorney for the Justice Department said in court today that the president is an reviewable.

Yeah, of course to president does have discretion.

It's import to give deference to the president, making a >> decision on on the ground about what kind of danger raises the rebellion.

Is there a lack of the ability of Chicago law enforcement to keep federal buildings and personnel safe?

But it's not application.

And what I think that the judge is saying even though I'm gonna give great deal of deference to the president, I'm not going to abdicate all responsibility a look at the evidence, give deference, but make sure there's at least a core of credible evidence showing that there's an need to take this drastic step of federalization of the National Guard to appoint an would would conditions in Chicago have to devolve in order for Trump to legally justify the National Guard troops.

Owner denies of this judgment part of the problem is that the president just a week ago was talking about law enforcement.

How awful Chicago is.

>> And so this is setting up a stage for the fact that this seems to be a subterfuge.

seems that president is making up this information.

So I think the judge was skeptical because of what the president had said before.

And if there is credible evidence, you know, we know about broad view, but if it's worse than broad view and it's just a systemic, it's up to the government to present that evidence before her.

And then I think she should defer to the president's judgment at that time.

But she said evidence just simply isn't there yet.

Stranded.

Same question to you.

>> Yeah, I agree that the evidence is what's going to turn this case one direction or another.

I just think that in this case, Judge Perry seems to be substitute her own judgment to not really grand discretion, but the fight to protect sure reason to deny the government's decision to deploy National Guard troops in Chicago.

There's clearly been issues and trying to enforce our nation's immigration laws and Chicago and elsewhere across the country and the judges don't get to decide when that's enough for the president to use his lawful authority.

politics of it can be bad.

The policy could be disagreeable and we can always debate that.

But the Constitution and the statutes here pretty clear and clearly side with the president having this broad authority.

>> Brandon, in today's hearing, Judge Perry pressed to Trump attorney on the scope of the guard deployment.

The Trump attorney described guard presence as a quote, limited mission to protect federal agents and property stopping short that with guaranteeing actions would remain within those boundaries.

Is the Trump administration are they are the guard troops are the required to agree to any set of boundaries?

>> Dak it's difficult to describe.

The guard has limits on what it could do in function and in practice.

But so much of that depends on the circumstances on the ground while they can re protect federal property.

Federal agents from attack or assault as we've seen occur over the recent weeks, they can also take on a role that to enforce federal law depending on what that looks like or what federal laws are few stated or or or obstructed by local or state authorities.

>> Trump, President Trump has floated talks at the Insurrection The administration was working on an appeal prior to Judge Perry's ruling.

Is it likely that the Trump administration will try to incite the insurrection act and under what grounds?

>> They could and only safety instruction act.

If there's an insurrection and that would give them another ground to face federal troops here in again.

And certain that the whole restrictions on the pass a Coma Thomas Act, which is designed not to give the standing army to be in the streets of the cities and I think the same issue will happen.

If he says there's insurrection look around and say, where's insurrection and there has to be some credible evidence I'm going grant is there should be deference to the president.

The Congress has delegate this responsibility to the president, but it's also responsibility, the judge to look at the evidence to make sure that's not sort just hashed together kind of subterfuge.

But there really isn't the some credible evidence that there's insurrection.

And I doubt that there is at this point, no one has news.

Nobody in the streets that chanting giving advice or attacking isolation, no one trying to stymie any kind of general law enforcement here in Chicago.

So the absence of any kind of others that that's happening, that I think claims of it that there's insurrection will fall flat.

>> Brandon, what is the likelihood that this is the accident that gets invoked?

>> I think it's very likely.

And I think it's very justifiable.

2 things on the top here want to pass a act as a clear exception, which is the insurrection act in these other statutory authorities that we're talking about tonight.

But 2, we're not talking about armed military insurrection as being the necessary predicate for the president to act President Eisenhower used the same authority in the 50's to desegregate schools across the south.

That authority is historically controversial to use of force, but it doesn't have to rise to this sort of mythical military fictional view of an insurrection to get local officials just refusing to enforce federal laws, sufficient warrant under the insurrection act as well.

And in fact, the judge's decision tonight could be even more proof of that front of the problem that the president is trying to solve that the traditional norms of executing justice enforcing federal law are just impracticable at this point.

>> Brandon Judge Perry, she also said in her ruling that the federal law permits the federalization of guard troops in 3 instances, quote, not whatever the president determines when one of them is met.

Should the court have given more different in this case?

And is that really what's at the core of this, right?

Is can the courts supersede the president?

>> I think the professor right here as well, it is a level of discretion and that is what we're debating now as lawyers.

We love having this conversation because academic an interesting, but it's also complicated.

It's a hard decision for the judge to make, which is why for centuries, courts have said that judges shouldn't be making those decisions.

Judges don't have the expertise to properly evaluate ground conditions and an ever evolving situation to determine whether or not that's a risen to a level that the judge themselves find sufficient to warrant this executive action that discretion has been historically is designed to be given to the president and has always been upheld to be primary with the president's discretion.

>> So of course, we're waiting until tomorrow to get the full ruling from Judge Perry.

But I think a lot of us have sort of like the gist of it right now.

He rolled.

What's next, though?

just want to say one quick answers Congress has made conditions upon the use of these federalization of choices of troops.

And it's up for the judge to determine whether president properly followed Congress's direction.

So it's tough for the judge to say whether distraction.

>> But it is for the judge to determine whether the president has made incredible finding that there is an insurrection as opposed to just making him a quake arguments.

So that is the critical rule that I hope that the judge in the 7th Circuit Court Appeal will continue to make.

And we're likely to see an emergency appeal to answer your question very quickly.

The 7th circuit just it was as what happened in Portland.

And that was appealed to the 9th circuit.

So that'll happen relatively And we'll push this down the line.

In the meantime, the troops will stay on taxpayer dollar here in beautiful Chicago.

Okay.

More time in court for all of us.