SCOTT DETROW, HOST:
The protests in Los Angeles over ICE immigration raids is the latest in a series of recent events that have raised huge questions about presidential power - in this case, whether President Trump can use military force to control protests. One former federal judge has a stark warning that Trump's actions don't just present legal disputes. They could even signal the end of rule of law in America. J. Michael Luttig served as a federal judge for nearly 15 years. He recently wrote a piece in The Atlantic about all of this. I asked what Judge Luttig thought about a question currently before a federal appeals court. Can President Trump use the National Guard to control protests in an emergency?
J MICHAEL LUTTIG: At first blush, many lawyers and constitutional thinkers believe that there's no such crisis or emergency that would justify the president's calling up of the National Guard.
DETROW: I mean, it just feels like in so many of these cases, President Trump is finding ways to maximize presidential power in ways that other administrations - for a wide variety of reasons - never did. I mean, like, no one - it is very hard to stop a president from nationalizing the National Guard, even if the reason is dubious, seems to be a takeaway from this and so many other similar takeaways.
LUTTIG: Well, that's an excellent point, and virtually all of his signature initiatives of his presidency thus far has relied upon emergency powers that he either has inherent as president or powers that have been conferred upon him - emergency powers - by the Congress of the United States. Now, in every single one of those instances, Scott, I believe that there has not been the requisite crisis, emergency, invasion, rebellion - those are the operative words of the respective statutes - to justify this president's invocation of those emergency powers.
DETROW: I want to follow up on that in a moment, but first, I think it's important to characterize your point of view in all of this and just give listeners who aren't familiar a little bit of context. You were appointed to the federal bench by a Republican president, President George H. W. Bush. Over the years, you were considered a conservative jurist. But you have also raised serious warnings about President Trump. How would you characterize your point of view, your concerns right now?
LUTTIG: Well, I'm gravely worried about the president's attempted use of powers, which he does not have, even arguably have.
DETROW: Judge Luttig, do you feel like worries that the president will straight up ignore an order have influenced Supreme Court rulings so far with President Trump?
LUTTIG: Well, he already has. And that's the Garcia case. And then he's thumbed his nose at virtually every lower court decision.
DETROW: Does that mean he effectively has this power then? You're talking about things that he doesn't have the power to do. He does them anyway. Courts rule in. He ignores the orders. So does he have effectively have these powers that on paper he didn't have?
LUTTIG: This President of the United States is defying the Constitution and the laws of the United States every single day. And he has thrown every one of these issues, of course, into the federal courts, overwhelming the federal courts to the point that he effectively has assumed those powers because the courts are unable to reject his claims in time so that he does get away with it. That's a remarkably sad commentary on this president and on America at this moment.
DETROW: Judge Luttig, I don't want to put a positive spin on what's been, like, a very blunt conversation with your blunt concerns. But I'm wondering, is there one specific thing that you think could happen to improve this situation from your point of view, whether it's the Supreme Court taking a stronger stance or anything else? Like, what, to you, would ease your concerns just a little bit at this point in time, if anything?
LUTTIG: The only thing, Scott, that can end this war on the federal courts and the rule of law in America is for the president of the United States to stand down. He is the one who has instigated this war, but it's crystal clear that at this moment, he does not want to end that war, and he has no intention of ending that war.
DETROW: That is former federal Judge J. Michael Luttig. Thank you so much for talking to us.
LUTTIG: Thank you, Scott. Transcript provided by NPR, Copyright NPR.
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