In this episode of Passing Judgment, Jessica Levinson unpacks two pressing legal issues. First, she explores whether the President can legally bomb Iran, looking at the balance of war powers between Congress and the President, the War Powers Resolution, and recent historical precedents. Then, Jessica provides an update on the legal showdown between California Governor Newsom and the Trump administration over federalizing the National Guard, analyzing a recent Ninth Circuit decision and the role of the Posse Comitatus Act. Tune in as Jessica breaks down these timely constitutional questions and their real-world implications.

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Presidential War Powers Are Limited—But Vague: Under Article 2 of the Constitution, the President can order military action in response to imminent threats or sudden attacks, but only Congress can declare war. The limits of what constitutes “imminent threat” or “war in the constitutional sense” are not clearly defined, leading to ongoing legal gray areas.

Congressional Oversight Remains Weak: While laws like the War Powers Resolution were intended to check the President’s power, in practice Congress often cedes authority, rarely using funding powers to halt military action even in constitutionally questionable situations.

Judicial Review Is Highly Deferential: Courts are reluctant to second-guess military decisions, frequently relying on the political questions doctrine and issues of legal standing. This means even if constitutional boundaries are tested, legal recourse is rare.

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In this episode of Passing Judgment, Jessica Levinson unpacks the legal battle between California and the Trump administration over the federalization of the National Guard in Los Angeles. She explains the statutes at play, including the limits of the Posse Comitatus Act and the potential use of the Insurrection Act. Jessica details Judge Breyer’s ruling in favor of California, outlines the key legal questions for the upcoming Ninth Circuit hearing, and gives insight into the judges involved in this high-profile case.

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Presidential Power to Federalize the National Guard: Jessica Levinson opens by explaining the legal mechanisms the president attempted to use to federalize the National Guard and send them, along with Marines, into Los Angeles. She breaks down the relevant federal statute (Title 10, Section 12406), which gives the president limited power to federalize the National Guard under specific conditions, such as responding to rebellion or when federal law can’t be enforced with regular forces.

The Scope and Limits of Military Involvement – The Posse Comitatus Act:

Jessica addresses the significance of the Posse Comitatus Act, which generally prohibits the use of the military for domestic law enforcement. Even if the National Guard is federalized, their direct involvement in law enforcement (like making arrests) is limited unless a separate statute (the Insurrection Act) is invoked.

The Insurrection Act as an Exception: She describes how the Insurrection Act is an exception to the Posse Comitatus Act, allowing the military to more directly handle law enforcement under certain conditions (such as widespread unlawful conduct or when state authorities can’t protect federal rights). She provides historical examples, such as federal intervention during desegregation in the 1950s and 1960s, and the Rodney King riots in 1992.

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In this episode of Passing Judgment, we examine the legal showdown in Los Angeles as President Trump sends the National Guard against California’s wishes. Host Jessica Levinson analyzes the president’s broad—though not unlimited—authority under Title 10 and California’s legal case challenging the move on grounds of state sovereignty and the Tenth Amendment. Jessica explains how federal law and the Posse Comitatus Act restrict the National Guard’s role, and why courts are usually hesitant to overrule presidential decisions on national security.

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Presidential Authority to Federalize the National Guard Jessica Levinson breaks down the Trump administration's decision to send the National Guard into Los Angeles, despite objections from California officials. She explains that under federal law (Title 10), presidents have broad—though not unlimited—powers to federalize state National Guard troops. This authority can be exercised when there is a “rebellion or danger of rebellion” against federal authority, even if the state’s governor disagrees.

State Sovereignty vs. Federal Power California, led by Governor Newsom and Attorney General Rob Bonta, challenges Trump’s move, arguing it infringes on state sovereignty. Levinson examines the legal conflict between state autonomy (protected by the Tenth Amendment) and federal authority as outlined in Title 10. However, she concludes that the statute grants the president clear authority in these situations, making California's legal challenge an uphill battle.

The Limitations of National Guard Powers (Posse Comitatus Act) Another key theme is what the National Guard can—and cannot—do once federalized. The Posse Comitatus Act generally prohibits the military from acting as domestic law enforcement. Levinson clarifies that under Title 10, the National Guard cannot directly enforce domestic law (like making arrests or searches), unless additional powers are invoked (e.g., via the Insurrection Act).

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In this episode of Passing Judgment, Jessica Levinson previews the Supreme Court’s most anticipated pending cases as the term nears its end. She highlights upcoming decisions on nationwide injunctions, Tennessee’s ban on gender-affirming care for minors, evolving standards in discrimination lawsuits, and major cases involving religious exemptions and parental rights in education. Jessica offers her predictions and insight on how these rulings could shape the law and impact daily life, setting the stage for a dramatic finale to the Supreme Court term.

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Nationwide Injunctions – Trump v. Washington/New Jersey/California: This case tackles whether federal district courts can issue nationwide injunctions blocking federal policies, as opposed to limiting decisions to just the plaintiffs in the case. The backdrop is Trump’s executive order on birthright citizenship, which attempts to limit who qualifies as a citizen by birth.

Transgender Rights and Equal Protection – Skrmetti: The Court is considering whether Tennessee’s ban on certain gender-affirming treatments for minors violates the Fourteenth Amendment’s Equal Protection Clause. The predicted outcome is that the Court may allow such state restrictions, but notes there could be future challenges regarding parental rights under a different part of the Fourteenth Amendment.

Religious Objections in Public Schools – Parental Opt-Outs for LGBTQ-Inclusive Curriculum: A Maryland case considers if public schools must offer opt-outs for parents whose religious beliefs conflict with LGBTQ-inclusive materials and lessons. The prediction: the Court may require such opt-outs under the Free Exercise Clause, but will need to write the opinion carefully to avoid overly broad exemptions.

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In this episode of Passing Judgment, Jessica Levinson talks with Wall Street Journal tax reporter Richard Rubin to break down the GOP’s "big beautiful" tax bill. Richard explains what’s in the bill—from tax cuts and increases to spending shifts—and who will be most affected if it passes. They discuss how the bill squeaked through the House, the major sticking points, and what’s likely to change as it moves to the Senate. Join us for a clear, accessible look at what’s inside the bill and how it could impact Americans’ wallets and the federal deficit.

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What’s Inside the GOP Tax Bill: The bill primarily extends the 2017 tax cuts, including a higher standard deduction, lower rates, and business relief, while adding temporary cuts like a boosted child tax credit and tip or overtime exemptions. To offset costs, it includes tax hikes, mainly on clean energy and high earners, major cuts to Medicaid and SNAP, and increased spending on border security and defense.

How “Typical” is This GOP Bill?: Richard describes it as a “mishmash”—there are conventional GOP elements (like tax cuts for the affluent), but also some Trump-specific provisions, like the “Trump account” (a new children’s savings account), faster write-offs for American factories, and anti-immigration measures.

The Path Forward in the Senate: Richard explains that the Senate will likely alter the House version, focusing on issues like Medicaid changes and clean energy tax credits.

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In this episode of Passing Judgment, we examine the legal controversy over James Comey’s deleted “8647” social media post and the ensuing federal investigation. Host Jessica Levinson analyzes whether Comey’s message amounted to an unlawful threat against former president Trump or was simply protected political speech. She guides listeners through the legal standards for incitement, fighting words, and true threats, concluding that the greater threat may be government efforts to silence political opponents.

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James Comey’s Social Media Post: Jessica Levinson introduces the controversy surrounding former FBI director James Comey, who is under federal investigation for a now-deleted social media post featuring shells arranged as "8647" on the beach. The crux of the issue is whether this was a coded call to "get rid of" (86) President Trump, who is both the 45th and 47th president, or simply a form of political commentary.

The Legal Question: Free Speech vs. True Threats: Levinson dives into the central legal dilemma: Was Comey advocating violence, or exercising his First Amendment right to political speech? She explains the importance of distinguishing between punishable incitement or threats and protected political advocacy.

Historical and Contextual Perspective: The episode puts this controversy in a broader context, mentioning similar uses of "86" by other politicians, notably Matt Gaetz, without triggering federal investigations. Levinson argues that context matters—whether the intent is referencing a metaphorical political ouster or a literal threat.

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In this episode of Passing Judgment, we examine sweeping changes in the Department of Justice’s Civil Rights Division under the Trump administration. Reporter Sam Levine joins host Jessica Levinson to discuss how the division, long tasked with enforcing voting rights and other protections, has seen over 70% of its attorneys depart amid a shift in priorities toward the president’s agenda. The episode explores what this means for civil rights enforcement, voter protections, and whether former DOJ lawyers can fill the gap by taking their expertise into private practice.

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The Role and Function of the DOJ Civil Rights Division and Voting Section: The conversation starts with an explanation of what the Civil Rights Division within the Department of Justice (DOJ) does. It is tasked with enforcing America’s civil rights laws—including the Voting Rights Act—and consists of 11 sections dealing with various aspects of civil rights (voting, housing, education, anti-discrimination).

Impact of Administrative Changes on DOJ Priorities: A significant theme is how changes in presidential administrations can redirect the focus and priorities of the DOJ and its sections—especially the Voting Section. While career attorneys (not political appointees) do most of the day-to-day work, political appointees set overarching priorities. Normally, shifts happen between administrations, but under the Trump administration, changes were described as “radical departures,” shifting focus to investigate noncitizen voting and prioritizing policies aligned with the president rather than traditional civil rights enforcement.

Dismissal of Civil Servants and Dismantling of the Voting Section: The episode highlights the mass removal of senior civil servants in the Voting Section under Trump’s administration, replacing experienced managers and ordering the dismissal of all active cases. This unprecedented action is portrayed as a clear signal of political influence overriding apolitical legal work—and is said to undermine the department’s ability to fulfill its civil rights mandate.

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In this episode of Passing Judgment, host Jessica Levinson speaks with NPR’s Elissa Nadworny to unpack the Trump administration’s efforts to withhold federal funding from colleges and universities over issues like antisemitism and DEI practices. They discuss how these unprecedented moves are impacting not campus life, but vital medical and scientific research nationwide. Elissa explains the legal challenges schools like Harvard are mounting in response, the stakes involved for the entire higher education sector, and the broader implications for public policy.

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Federal Funding as a Lever in Higher Education Policy: The episode opens by surveying recent actions from the Trump administration regarding federal funding for colleges and universities. The administration is using financial levers—pausing, freezing, or cutting funds—to influence policies on campus, particularly tied to issues like DEI (diversity, equity, and inclusion) and antisemitism.

Mechanisms and Legality of Federal Control: The speakers discuss how and why the administration has the power to control this funding. The complexities of federal funding—who controls the purse strings, when Congress vs. the executive branch has authority, and what legal mechanisms are at play—come up. The episode highlights that while presidents can make funding conditional, the legality often hinges on whether proper procedures are followed (Administrative Procedures Act), not just on broad authority.

Who Really Loses When Funds Are Cut: The speakers emphasize that federal research dollars are not just about student amenities—they fund major scientific, medical, and technological research. The implications of large-scale cuts ripple well beyond campuses, potentially hurting national health, technological innovation, and local economies (since universities are major employers and research hubs).

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