Good Morning:
No idea who did this one.
Which is kinda great.
Good news this morning: The Fifth Circuit Court of Appeals has declared that President Trump cannot use the Alien Enemies Act to deport people because there is no invasion from Venezuela going on right now. I haven’t read the opinion yet, but here it is.
I will have thoughts on this in my The Situation column either today or, given that it’s rather long, in the days to come.
Yesterday on #DogShirtTV, the show was invaded by a rampaging horde of estimable Taylor Swift fans. I got out of the way and let them run the show:
Yesterday On Lawfare
Compiled by the estimable Olivia Manes
A Primer on the Senior Executive Service
Nick Bednar and Peyton Baker outline the historical and legal context surrounding recent controversy over the Senior Executive Service (SES)—civil service members who occupy the top tier of federal management—following the firing of the Department of Justice’s pardon attorney. Bednar and Baker warn that the Trump administration’s application of the presidential removal power to SES employees could endanger the independence of the entire civil service.
In recent filings before the Merit Systems Protection Board (MSPB), the Trump administration has argued that tenure protections for SES appointees violate Article II of the Constitution. The administration contends that these appointees are “officers” and the president therefore has the right to fire SES appointees at will—meaning they cannot be protected from removal. Extending at-will removal to SES appointees would greatly expand presidential control over the administrative state’s middle managers and encroach on the tenure protections foundational to the modern civil service system.
The Future of Airpower Is Denial
In the latest installment of Lawfare’s Foreign Policy Essay series, Kelly A. Grieco and Maximilian K. Bremer contend that as China’s air defense capabilities grow increasingly formidable, the U.S. must move from an offense-first strategy to one of air denial, which would limit China’s air operations without necessitating U.S. control of its air space, in service of the longer-term goal of U.S. air superiority.
The answer is a new phased strategy—what we call culmination-based air control (CBAC)—that begins with air denial and transitions into air superiority. In the opening stages, denial-based forces function as an ablative layer, absorbing and degrading an adversary’s initial attacks in order to buy time and create openings for traditional fighters and bombers to exploit. A U.S.-led air campaign would thus progress from denial through windows of air superiority to sustained control of the skies. This approach would provide a robust, cost-effective deterrent against China while reducing escalation risks and preserving strategic options for both offense and defense.
The Problem of Liability Overexposure for Software
Micah Musser argues that, while there has been recent emphasis on holding software developers accountable for cybersecurity flaws, the application of tort liability to these companies renders them uniquely susceptible to bankruptcy. Musser offers several potential strategies for mitigating liability overexposure for software, with particular attention to procedural mechanisms that could be used to channel claims, limit liability, or distribute damages.
But there is a related, but distinct, problem: that of unlimited liability exposure. Unless a statutory safe harbor is designed in such a way that all companies always comply with it, there will eventually be mistakes. The question then becomes: How much liability is too much? Software faces a number of unique challenges that make it likely that simple oversights could destroy even large companies. Even in cases in which a developer has cut corners and should be subject to some liability, a poorly designed regime will quickly bankrupt many valuable companies.
Podcasts
On Lawfare Daily, Molly Reynolds sits down with Zach Price, Associate Professor of Law at UC Law San Francisco, and Phil Wallach, Senior Fellow at the American Enterprise Institute, to discuss how pocket rescissions can be used to cancel previously approved congressional funds. They talk about whether rescissions are legal, if they threaten Congress’s institutional power, and how the practice fits into the Trump administration’s broader strategy.
Videos
On Sept. 2 at 1 pm ET, I sat down with Anna Bower, Scott Anderson, and Loren Voss to discuss Sunday’s emergency hearing in L.G.M.L. et al. v. Kristi Noem—where Judge Sparkle Sooknanan blocked the Trump administration’s plans to send hundreds of unaccompanied migrant children to Guatemala—Judge Charles Breyer’s ruling in Newsom v. Trump, which found that President Trump’s use of the National Guard and U.S. Marines in Los Angeles violated the Posse Comitatus Act, and more.
Today’s #BeastOfTheDay is the quail, seen here learning to look both ways before crossing the street:
Video Source
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