Bulwark Takes - Military In The Streets?! This Is MARTIAL LAW by Another Name

Episode Date: June 10, 2025

Ryan Goodman and Sam Stein walk through the little-noticed memo that could allow military force on American streets, even without a governor’s request. They unpack the legal implications, the use of federal troops against civilians, and what it signals about 2025.

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at the pinnacle of their careers. If you're starting your career in finance, check out cbvinstitute.com slash become a CBV. Your future self will thank you for it. Hey guys, it's me, Sam Stein, managing editor at The Bullwork, and I'm joined by Ryan Goodman, who is the co-editor of Just Security. He is going to be talking about the situation in Los Angeles.

And what I would argue, or I guess what he would argue, are the sort of very dire, very concerning legal ramifications behind the memorandum to authorize the National Guard and then, relatedly, the use of military on the ground in Los Angeles. Ryan, thanks for joining us. I really appreciate it. Before we get into the interview, as always, to the people out there, do subscribe to this feed. It supports conversations like this. So, Ryan, what prompted us to reach out to you is this post you put on Blue Sky about the memorandum that was issued, I want to say yesterday, but everything's fuzzy. No, it's June 7th memorandum, so it was three days ago. And this was federalizing the National Guard.

What was distinct about this is that a number of things, but first and foremost, Gavin Newsom, the governor of California, never actually asked for the National Guard to be federalized to help with the protests in his city, in Los Angeles, I should say. You pointed out another of other very alarming elements of this memorandum. Can you walk us through what stood out for you? So the memorandum is much broader than what we're currently seeing on the ground in the sense that it provides a huge amount of authority that it also then delegates down to none other than Secretary Hegseth. So the issues I think are,

let me put one of them front and foremost, which is First Amendment issues. The memorandum is not geared towards riots and it's not geared towards violence or violent action. It is authorizing the use of the National Guard and the active armed forces to respond to protests or acts of violence. That's one. And two, it's also preemptive force. It's not just to respond to an existing civil unrest, but it allows for the deployment of forces, military forces, national guard, Marines, etc.

anywhere in the country in anticipation of protests that might disrupt, as the memorandum says, federal law, federal enforcement. Let's take those one by one. The use of the word or, which you highlighted as consequential protests or acts of violence. Your contention here is that explicitly this gives them leeway to go after nonviolent protests. Yes, it does on the very face of it. Because they could have used a different word than or more or less, or they could have been more explicit. Yeah, I would think they should say violence, civil unrest, or acts of violence that disrupt

the federal government's ability to function in some situation. But they don't. They say protests. So under this reading, the National Guard in theory or in practice could go and say, you are protesting, and that is causing a form of civil unrest, the protests itself. And therefore, even if those protests are nonviolent, we have the authority to suppress and manage them, do whatever we want with them. That's right.

It's so outrageous. It's like the fact that I'm even saying that's right. Part of me just thinks that it's cooked up in Stephen Miller's mind. I mean, it's just that far field of anything you might imagine. The preemptive action, the phrase you highlight is, or are likely to occur. Talk about the significance of that phrasing. The preemptive action is also remarkable because the Department of Justice has said for decades that the deployment of US forces inside the United States under the

Insurrection Act or similar situations should be one of last resort. So the idea that this is in fact kind of like as potentially first resort is extraordinary. And to add to it that this is obviously therefore not talking just about LA. They're talking about other instances, Chicago, St. Louis, and I could just start reeling them off. In the future, anywhere in the country, the other part of the order that's in the memorandum that's really remarkable is, there's no reference to California.

There's no reference to LA. It is across the United States. It's geograph reference to California. There's no reference to LA. It is across the United States. It's geographically unbound. So in theory, they could use this memorandum in a separate state. They wouldn't have to issue a separate memorandum to authorize National Guard and say, let's just say Illinois, right, for Chicago. And they can say, we have some sort of intelligence or something of that matter to suggest that there are going to be disruptive protests in Chicago that require us to preemptively

go in with the National Guard so that they don't get to a place where they are threatening federal buildings or potentially endangering ICE officers. That's right. And that they override the ability of the governor to direct, in that case, his but his or her state guards, they commandeer them. Exactly. And I should say, and the memorandum also includes authorization for the active, the regular armed forces. So it's not just the National Guard, it has taken that additional step. The new geographical...

Let me just... My own take on this is that they've been fairly explicit that they want to use what's happening in LA as a deterrent for future protests. I mean, they're saying outwardly, we want to set an example here so that there are no similar instances in the future. And they're not saying instances in LA in the future, they're just saying instances in the future. And they're not saying instances in LA in the future, they're just saying instances in the future. So I think it's fairly clear to them that this is a stage and ground designed to dissuade

any potential protests in the future. Yes. And the only question I have is whether they really are trying to deter or instead it's just a stepwise process of trying to escalate. And to also send in the Marines is just incredibly escalatory. In that case, yeah. In that case, the predicate that they're laying is we're going to do this everywhere. We don't want to prevent it.

We just want to set the expectations that this is now the new norm. Yes. Kristi Noem sent a letter to the Department of Defense yesterday, which was directing the military to basically help detain and arrest lawbreakers. This was picked up by the San Francisco Chronicle, but it didn't really get as much attention as the memorandum. I would argue that probably deserves more attention.

I know you've looked into it. Does this escalate beyond the memorandum and if so, in what ways? I think one of the most important things to keep one's eye on the ball going forward is that the question at hand is that the government is using this idea that they have the president has article to inherit authority to protect federal buildings. And two questions we need to be focused on one, do they ever exceed that authority? And two, do they ever get into what would otherwise be defined as law enforcement? If they do, then that's in violation of the Posse Comitatus Act. The Christie Noem letter to Hegseth seems to be a clear violation of the latter.

She's asking the DOD to participate in civil law enforcement. That's a red line. I worked at DOD. There are multiple DOD docs and regulations that have a list of impermissible action and the impermissible action is directly assisting civil law enforcement for the very kinds of things that she's asking Hexeth to do. My only hope in that respect is that she got out over her skis and it's a request that the DOD would reject. So we don't know that what the DOD's response to that was but it just shows you how

lawless it is internally because it's an internal document that was leaked. It's not like that's for public messaging purposes. Yeah. But the DOD did send 700, 500, 700 Marines to LA yesterday or at least they said they were going to send them to LA yesterday. What's our understanding of the legal bounds upon which, within which they can act here? The idea is that the Office of Legal Counsel, the Department of Justice, 1971 opinions and other opinions, 1967, have this argument that there does not need to be a statutory authority, that Article 2 alone

gives the president the power to use troops to protect federal buildings, federal personnel. And that's the authority. So it's not waiting for an insurrection act proclamation to drop. Just so I understand, the distinction here is that military personnel can protect federal buildings, but they cannot be involved in the arrest or detention of people who are rioting or protesting because that would be a proactive policing that the military is prohibited from doing? That's the idea. Yeah. Okay. And there's going to be a blur of something there between those lines, but yeah, exactly. Right. What have we seen? This is kind of a rhetorical question,

but what have we seen from Hegseth in terms of how he's approaching this, and if he has sort of an appreciation for that line? I don't trust that he does. On Saturday night, he put out a post on X. From his personal account. Super inflammatory, yeah, and super inflammatory based on false statements about, and that's also in the other piece of it in the Gnome letter to him, these ideas that they really may be cooked up in this like Fox News reality of there's an invasion and terrorists are inside L.A. and the like. So I mean, if that is your actual worldview,

that's in his post and that's in the letter from Noam to him, if that's your worldview of what's actually going on, then I have no reason to think that he's gonna be constrained with the legal niceties that I've just described. I mean, in some sense, he might start to think of it as a military operation. That is not even we don't need to worry about it as law enforcement. And the one the reason I say that is not just speculating out the wazoo.

One of the first executive orders on clarifying the role of the military made it sound like it is now a military mission with respect to immigration enforcement. And that's another way of potentially running the policy commentators act because you just say, oh, we're not doing law enforcement, we're just doing military. Right. And what is military? If you qualify it as an invasion, yeah, if it's an invasion and no longer becomes anything other than a military exercise.

Gavin Newsom, let's talk a little bit about that because he's sued over the federalization of the National Guard, arguing that they did not request or even ask about whether he would authorize it. Does he have any standing? Well, he might have standing here. Does he have a case here? Yeah. I mean, the first thing on standing is he's the best plaintiff.

Yes. I was going to say standing is a very technical term. I didn't mean it in that sense, but does he have a case here? I mean, I think he has a case. The big question is going to be, ordinarily, the courts defer very much to the president on these kinds of questions. But even in the Insurrection Act cases, there's this indication that they would not

defer if the president's acting in bad faith. And I think there's a good argument for that here. Also, part of his complaint says, look, another predicate that they have made in order to federalize the National Guard is that there's a rebellion. There's no rebellion in Los Angeles. Rebellion is like trying to overturn the government. Well, I'm not trying to be a devil's advocate here, but who makes that determination, right? I agree with you. Obviously, this is a lot of this is cooked up in a Fox News fever dream, but surely, you know, they'll have

some sort of presentation they can make that says, oh, look, waymos are on fire, buildings are defaced, people are fearing for their lives, streets are closed down. If that's not a rebellion, what is, right? I mean, they will make the case. Yeah, they'll make the case. But that's one in which I'm thinking that the courts might actually review it. They'll take a look at it and make a determination at a minimum whether or not the allegations being made in the memorandum or elsewhere meet the definition of rebellion and what is the definition of rebellion. And they should define that as a statutory construction.

And why I'm thinking the courts will do that is it's very analogous to the Alien Enemies Act cases where the proclamation declares that there's been an invasion by the TDA gang, the Tendo Aragwa gang. And there, the courts have been mostly willing to say, well, that's statutory construction. We'll tell you what the definition of invasion is. So I think that they might do that. One important piece, there are two important pieces about the Gavin Newsom complaint. One, it is totally about federalizing the National Guard. All of the arguments that he's making, rebellion, going around the governor, commandeering the state by overriding the state National Guard controlled by the governor. That's all about the National Guard.

And in the complaint itself, folks should realize it's written right around the time that the Marines are actually being deployed. And it actually says reportedly Marines are being deployed, because they don't even have that as an official action yet. So I do think there's this still open question of what about litigation around the Marines, because that's separate. And I think on that one, there's a very good argument that this idea that there's Article 2 protective power can only be exercised if the state authorities are incapable or unwilling to provide adequate protection. And I'm taking those words from Justice Department memorandum, DOD documents and the like.

So that condition doesn't seem to be met. That is a similar argument to what is in the complaint, which is that we had things actually under control before Trump escalated it by bringing in the guard and now the Marines. That's one. And the second is he doesn't raise a First Amendment claim. And I think that's a huge argument that another plaintiff might be able to bring. A good elaborate on that. The First Amendment as in, you know, we were just demonstrating our protest rights.

You put it down with brute force, National Guard, Miles Harry, you have violated my First Amendment rights. But a point, it would be who? Any random protester? Could it be, you know, even Mayor Bass, for instance? I mean, who would be the plaintiff here? I think that that's just, it could be groups that have organized, want to organize around peaceful protests of ICE enforcement activities in their city. And they could just say, look,

facially, on the face of the memorandum, it says that they will deploy the National Guard just for nonviolent protests. And that is, excuse me, trying to stamp it out, stamp out First Amendment activity. It's trying to throttle First Amendment activity. And I think there's a pretty sound argument for that. Okay. This is a lot. Let's just finish on a big picture piece

because you know whenever we've had these conversations we usually end with me sort of asking you on the scale of one to ten and I don't want to do that because it seems a little trite for this moment but this does seem to be honestly a place and I know my colleague Bill Kristolz are in about this, I know JVLs are in about this, where they're very actually quite frightened about the pushing of the boundaries here and the predicate that's being laid for future cases where they want to deputize the National Guard and, or sorry, federalize it and use the military. You seemed really worried in your blue sky thread about what's happening here. How worried should we be? I think we should be very worried. And we just published a piece in the last hour by Liza Goiten. And her piece is basically saying this is the Insurrection Act invocation by

another name. Because, yeah, just like you say, taking a step back, what is one of the perished parts of American society? It's that we do not have the military policing Americans on their city streets. And we do not have the military certainly policing First Amendment activity or trying to crush First Amendment activity like peaceful protests. And that is what has been introduced here. Now they're trying, they're still keeping this line of only protecting the federal building. So I do think the big question is, do they either hold that line or in

fact get pushed back out of it because not just through litigation, but Gavin Newsom and others win the day on that. This is a completely inappropriate use and an escalatory use of the National Guard and the US Marines or not. And I think that's to me, what's so deeply concerning. It really is testing, I think, for Stephen Miller how far they can go on violating that kind of cherished American principle. Yeah, it makes the next couple days incredibly important in a very chilling way too.

All right, Ryan Goodman, thank you so much, man. I appreciate it This is heavy stuff, but you have a real gift at unpacking it for us We'll be tuning back to you when when we have the next city under siege from the National Guard, obviously But until then thank you and thank you guys for watching this as always subscribe to the feed and we will talk to you later