Not. Mandamus. Not. Stayed.
Plus, a baby tapir is #BeastOfTheDay and Mike Pesca is on #DogShirtTV and on a podcast that is not about tapirs
Good Evening:
Or so says J. Harvie Wilkinson of the U.S. Court of Appeals for the Fourth Circuit, anyway:
It’s a strong opinion, released without even waiting for Kilmar Abrego Garcia to respond to the government’s request for a stay of the district court’s order to facilitate Abrego Garcia’s release from Salvadoran prison and to issue a writ of mandamus blocking her order.
One of the problems with delusional thinking about the courts—and with expressing that delusional thinking in outright lies from the Oval Office about winning a unanimous Supreme Court decision when one, in fact, lost a unanimous Supreme Court decision—is that the courts eventually do get to respond. This is what it looks like when that happens.
The decision is eight pages long. It’s worth your time.
Today on #DogShirtTV, the extremely estimable
came by to tell us about his new newsletter, to which you should subscribe:
From there, we meandered off into a discussion about the industry of content-making, and ended up talking about important questions like whether I’m obligated to read my emails and why the Pod Save America guys get away with mocking their advertisers.
I went on the Bulwark Podcast today to talk with the estimable
:He called this here site “DOGE Shirt Daily” and I’m still a little sore about that.
Today On Lawfare
Compiled by the estimable Caroline Cornett
The New Transparency Rules and the El Salvador Detention Agreement
Curtis Bradley, Jack Goldsmith, and Oona Hathaway explain why a 2022 statute mandating transparency for certain executive agreements could force the government to disclose any agreement between the United States and El Salvador related to the detention facility:
Under the 2022 transparency rules, the executive branch has transparency duties for both binding and nonbinding agreements. With respect to binding agreements, it must disclose them to Congress on a monthly basis and publish them within 120 days after they enter into force. As far as we know, the executive branch has not yet disclosed the agreement to Congress.
It is possible that the executive branch views the agreement as not legally binding. But even if so, it still has a duty under the statute to disclose and publish nonbinding agreements if they “could reasonably be expected to have a significant impact on the foreign policy of the United States.” The State Department’s regulations specify that among the factors to be considered in determining whether an agreement is covered include “whether, and to what extent, the instrument . . . affects the rights or responsibilities of . . . individuals in the United States; . . . and is of Congressional or public interest.” An agreement to house a large number of migrants removed from the United States to a notorious supermax prison in another country plausibly meets this standard.
The Shapiro Attack and the Growing Risk of Partisan Extremism
Daniel Byman and Riley McCabe discuss how the April 13 arson attack on Pennsylvania Gov. Josh Shapiro’s residence as part of a growing wave of violence directed at politicians and government figures highlights the danger of partisan extremism and jeopardizes political stability:
It is useful, if painful, to consider what would have happened if the attack on Shapiro, Trump, or another politician succeeded. We would not come together as a nation in grief. Immediately, partisans would blame the other side, noting how their political opponents’ incendiary rhetoric fostered a climate of hate. Those in government could use the attack to justify greater domestic surveillance, declarations that a zealous political movement like antifa on the left or the Patriot movement on the right should be treated as a terrorist group, and other extreme measures. The attack would also foster conspiracy theories, as people speculate about why a prominent and supposedly protected individual “was allowed” to be killed.
Overcoming the Tucker Act After Department of Education v. California
Daniel Jacobson and John Lewis examine whether Administrative Procedure Act (APA) litigation over termination of federal contracts and grants lies within the jurisdiction of district courts or the Court of Federal Claims (CFC)—as the Tucker Act and the Supreme Court's recent decision in Department of Education v. California suggest—and highlight alternative strategies plaintiffs can use to bring APA claims in district court:
Notwithstanding California, there remain ways that litigants can surmount the administration’s Tucker Act defense. In particular, litigants might try two strategies. First, they might assert nonstatutory causes of action based on constitutional or statutory violations. Such claims do not rely on the APA’s waiver of sovereign immunity at all, and the CFC would typically lack jurisdiction to hear the claims because the relevant constitutional and statutory provisions are not “money-mandating.” Second, where the government’s award terminations result in entirely or almost entirely shutting down a congressionally mandated program, litigants might challenge the shutting down of the program—rather than the individual award terminations—as the relevant agency action for APA purposes. The remedy for such a challenge would be to compel the government to issue new awards to operate the program, even if the grantees whose awards were terminated are not guaranteed to receive the new awards.
The Programmable State: The e-CNY and China’s Quest for Smarter Surveillance
In a new report for Lawfare’s Research Initiative, Yaya J. Fanusie and Emily Jin argue that U.S policymakers must take measures to reduce the influence of the e-CNY—China’s central bank digital currency—due to the substantial surveillance and privacy risks it poses:
The Chinese Party-state’s aggregation of financial data and its integration with social monitoring present significant risks of governmental abuse. Through a thorough analysis of e-CNY pilots, this article offers a glimpse of how an authoritarian government can use “intelligent” finance to tighten its control over the population. The Party-state’s ambition to expand and promote this model warrants vigilance by democratic nations. By reviewing PBOC statements and the domestic Chinese financial press reports, and national strategy documents outlining China's economic and technological vision, the article frames the implications of China’s e-CNY efforts for U.S. national and economic security. It also explores the role of financial technology giants like Ant Financial and Tencent in the Party-s State’s state-directed public-private coordination, highlighting the province- and city-level implementation strategies used to bring the e-CNY to users.
Today’s #BeastOfTheDay is a baby tapir born at the Point Defiance Zoo in February:
One thing I really appreciate about today’s Beast is how it’s a tiny, squeaky baby, not a massive, horrifying squid demon coming to eat me. In honor of today’s Beast, let’s recommit ourselves as a species to leaving the ocean floor and its denizens the hell alone. Tapir are endangered—and cute. Let’s focus on them. Please. Also, speaking of tapirs and Mike Pesca, here’s a podcast episode that is not about tapirs and features Pesca on the subject:
Here are some other things that are not today’s Beast—on account of not being real or alive or otherwise eligible—but which are still Beasts deserving of recognition for their numerous good qualities, notably the very good quality of not being literal leviathans.
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