Good Morning:
Yesterday on #DogShirtTV, the estimable
showed up to tell me about her latest quest: finding the funniest NYC comedy set about Jimmy Kimmel’s suspension.The Situation
In yesterday’s “The Situation” column, I wrote about the government shutdown, which is now upon us:
Democrats have typically described this shutdown battle as about restoring the giant Medicaid cuts that Congress made as part of Trump’s tax bill this summer. And that’s true, in part, and I’m sure it’s a righteous fight in and of itself. But there’s more to this battle than health care funding, as important as that may be for tens of millions of people.
Over the past nine months, Trump has worked assiduously to dismantle entire federal agencies despite clear appropriations for those agencies from Congress. Do those laws mean nothing? And more particularly, is the president entitled to expect the votes of opposition members of Congress in order to keep the government funded while he honors only those spending bills that he chooses? A vote to keep the government open on these terms represents a form of congressional assent to such lawlessness.
One might say the same for the mass dismissals of career civil servants across the government without the slightest attempt to follow proper procedures. Everyone seems to assume such personnel matters should be handled in court. But should Congress keep a government funded without demanding that it obey the laws duly passed by Congress and protect government employees from the rankest of political retribution?
All that is before you get to foreign aid. Yeah, I know, talking about overseas starvation and disease is not the “kitchen table issues” the Democratic leaders keep telling us they want to talk about—unless your kitchen table happens to be in Malawi. But the administration destroyed the American foreign aid program this year with almost no input from Congress. Should those who oppose that decision fund the government on the assumption that it is made or should they condition their votes on some restoration of these programs?
My point is that there is something larger going on here than a domestic cut in health care spending, which—while horrible—was at least duly voted upon by Congress. That something is a systematic disregard for the laws Congress passes. In some cases, that disregard is legally defensible because of the way the laws happened to be written. In some cases, it is frankly lawless. But in all cases, treats the will of Congress as something to be trifled with, not obeyed.
Yesterday On Lawfare
Compiled by the estimable Isabel Arroyo.
IEEPA Authorizes Asset Freezing, Not Seizing
Paul Stephan argues that tariffs are a form of property seizure distinct from the asset freezing permitted under the International Emergency Economic Powers Act (IEEPA), whose scope the Supreme Court will consider in Learning Resources, Inc. v. Trump. After examining IEEPA’s text, history, and structure, Stephan also contends that Congress—not the judiciary—should decide whether the statute empowers the executive to levy new tariffs and taxes.
As the exclusion of confiscation from the list of IEEPA authorities indicates, Congress in 1977 meant to draw a line between war powers and other means for the executive to shape international relations. Giving a war powers gloss to IEEPA’s use of “regulate” would defeat that intention. Both confiscation and tariffs (as well as taxes) are war powers that a declaration of war can trigger in circumstances where Congress has not spoken clearly. Absent a declaration of war, the [major questions doctrine] requires a more stringent reading of IEEPA.
How Not to Embarrass the Future
Gregory M. Dickinson and Kevin Frazier warn against hasty regulation of artificial intelligence (AI) tools, arguing that laws designed for current AI capabilities will be ill-equipped to regulate the AI of the future. The authors propose mechanisms for curbing new laws’ unintended effects on AI development and highlight the value of courts in AI governance.
Unfortunately, the U.S. probably won’t see adaptive statutes. They require legislators to be hands-on: to fund evaluators, commission studies, revisit choices, and explain revisions that might look like backtracking. Electoral incentives reward visible action over disciplined experimentation. The political pressure to control AI accelerates this bias: Restraint can be caricatured as negligence, while speed reads as courage. Yet it is “regulatory patience” that requires true fortitude. This lawmakers lack, and thus we see instead premature, sticky laws that quickly outlive their rationale.
If politics won’t deliver adaptive statutes, we need another path that preserves room to innovate while addressing real harms.
Podcasts
On Lawfare Daily, Anna Bower, Bob Bauer, and I join Kate Klonick to discuss the politicization of the Justice Department, the recent indictment of former FBI Director James Comey, and how the proceedings against Comey will influence the president’s capacity to intimidate political enemies.
Videos
On Oct. 1 at 11 am ET, Scott R. Anderson will sit down with Joel Braunold to discuss President Trump’s proposed peace plan for Gaza, the international reaction to it, and what it means for the war in Gaza. Watch it live on YouTube or Substack.
Your Music of the Day: Operation Brahms
Today’s #YourMusicOfTheDay is a little scherzo, Opus 4, which Brahms wrote when he was just 18 years old. It is the oldest of his works to have an opus number. I expected to find it immature and interesting mainly for the sake of the completeness of this project. But actually, it’s a pretty wonderful little piece. Here’s Tae-Hyung Kim performing it in 2019:
And here’s a recording of the great Claudio Arrau playing the piece:
I have listened to this several times over the past couple of days, and I’ve kind of fallen in love with it. It’s a remarkably sophisticated piece—not just for a teenager but for any composer. It doesn’t sound remotely like a kid learning how to compose or, for that matter, showing off his piano virtuosity (though the piece certainly does that too). There is a lot going on here, and the scherzo’s brevity (it runs about ten minutes) as compared to the first piano sonata (which runs about 30 minutes) actually increases its intensity.
Note also the piece’s discipline. The young Brahms comes of age in the 1850s, a period in which composers were letting it all hang out. This is the age of Richard Wagner, and Brahms is a contemporary of Anton Bruckner, both composers who, as the Lebowski might put it, weren’t into the whole brevity thing. The rage of the day was a kind of highly emotional anti-formalism. Yet you can see in this piece the beginning of Brahm’s reaction to this movement. It’s a tight little piece, and while I’m not going to get into any kind of detailed formal analysis of it here (I am incapable of such an exercise), you don’t need any specialized training to hear it. This is an 18-year-old kid writing a stand-alone scherzo—which in itself is somewhat reminiscent of Chopin—that reminds his age that the emotional wells they are trying to tap might be channeled better through classical forms, rather than allowed to overwhelm them. That becomes a major theme of Brahms’s career, and you can hear it powerfully in this little piece.
Today’s #BeastOfTheDay is the customs control:
In honor of today’s Beast, please ensure that your bicycle is compliant with all applicable regulations.
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