A Spoon Understands the Assignment

It died making noise

Good Afternoon:

Wooden spoon broken from banging on pot at nightly DC pots and pans protests. #FreeDC

Have you put as much into freeing DC as this spoon did?

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Yesterday on #DogShirtTV, the estimable

Holly Berkley Fletcher

and I honored the true master of the art of projection protests. We also talked about whether Marjorie Taylor Greene is sincere in her beliefs and discussed where the NAACP keeps the virginity of Southern white women:

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Yesterday On Lawfare

Compiled by the estimable Olivia Manes

The Lingering Uncertainty in Judge Breyer’s Newsom v. Trump Ruling

Chris Mirasola unpacks a ruling by Judge Charles Breyer in the U.S. District Court for the Northern District of California, which enjoined the Department of Defense from using military personnel in California “to execute the laws” absent an invocation of a proper exception to the Posse Comitatus Act. Mirasola suggests that Breyer’s opinion, far from clarifying the legal basis for military activity in Los Angeles, rejects the government’s justifications even as it fails to offer an alternative.

While this may appear to be a sweeping indictment of the now months-old military deployment to Los Angeles, on closer inspection, Judge Breyer’s analysis raises more questions than it answers. This is true foremost because the opinion affirms the president’s putative authority to deploy the military to protect federal properties while, at the same time, rejecting all of the government’s theories substantiating this power. Although the opinion clearly enumerates the kinds of activities military personnel are not allowed to perform going forward in California, a core unanswered question remains: What does Judge Breyer believe to be the legal authority for the military’s operations in Los Angeles?

Fifth Circuit Grants Preliminary Injunction Against AEA Tren de Aragua Removals

Bertina Kudrin and Megan Thomas survey the U.S. Court of Appeals for the Fifth Circuit’s preliminary injunction to halt the removal of alleged members of Tren de Aragua under President Trump’s March 14 proclamation, which invoked the Alien Enemies Act (AEA). Kudrin and Thomas provide background on the case, outline the definitional questions at play, and break down the court’s conclusion that the AEA’s required predicates—declared war, invasion, or predatory incursion—were not met.

A 2–1 majority of the panel, composed of Judges Leslie Southwick, Andrew Oldham, and Irma Ramirez, found that the petitioners, W.M.M. and A.R.P., two Venezuelan nationals detained under the AEA pursuant to the proclamation, were likely to succeed on the merits in challenging the proclamation because the AEA’s required predicates of war, invasion, or predatory incursion were not met based on the facts presented by the government, and granted the preliminary injunction. A different 2–1 majority ruled against the petitioners on notice and due process, upholding the government’s pre-removal notice, which grants detainees seven days before removal could begin. The court remanded for further proceedings and limited the injunction to only those removals occurring under the AEA, as the government remains free to remove TdA members under other legal authorities.

Podcasts

On Lawfare Daily, Lawfare Foreign Policy Editor Daniel Byman sits down with Mark Cancian, a Senior Adviser with the Center for Strategic and International Studies, to discuss the potential implications of a Chinese blockade of Taiwan and consider what steps the U.S. and Taiwan might take to prevent such a scenario.

Videos

On Sept. 4 at 2:30 pm ET, in a live recording of Lawfare Daily, I sat down with Lawfare Senior Editor Scott R. Anderson and Rebecca Ingber, professor of law at Cardozo Law School, to discuss the U.S. strike on an alleged “drug boat” in Venezuela, the gathering of U.S. troops and warships in the Caribbean, and more.

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Document Dump

The D.C. attorney general has filed suit over the administration’s continued deployment of National Guard in Washington DC.

Here’s some legal materials related to the search of John Bolton’s house.

Judge Ali has ordered that the government obligate certain funds it has been withholding in foreign aid grants before the fiscal year ends on September 30. The government is appealing.

The government is also taking Judge Breyer up to the 9th Circuit. Chris Mirasola has a really good piece on the lower Court decision at Lawfare (see above).

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Today’s #BeastOfTheDay is the stoat, seen here being a highly evolved predator and also completely adorable:

Video Source

In honor of today’s Beast, don’t wear a fur coat.