The Confrontation: A Project

And maybe a book

Good Evening:

Forsythia in full bloom at the Cabin in the Woods

I went out the Cabin in the Woods on Saturday to lay some floor boards (Canadian hardwood, of course):

I arrived to find the forsythia in bloom. It’s hard to argue with that. In DC, the cherry blossoms are out:

It’s hard to argue with that either.

---

Friday on #DogShirtTV was an absolute banger, folks.

The estimable Alicia Wanless invited on the estimable Lucy Jackson, a classics professor from the UK, to tell us about the history and function of the Greek chorus. By the end of the episode, we had an actual Greek chorus on-screen, chorusing away.

Seriously, guys. This episode ruled.

---

The Situation

In Friday’s “The Situation” column, I reflect on the ongoing legal and political battles in the United States that characterize the Trump administration’s effort to replace the current liberal, democratic regime in America with one decidedly less liberal, less democratic, “more clientelist, and more personal”:

So here’s a prediction I will venture: Something new will come of the confrontation between these two plates. Whether a new regime will replace the old, or whether the old regime will adapt features to make itself more resistant to authoritarian populism, the big picture here is the brutal confrontation between a governance system and its discontents and what the landscape will look like after they clash.

More on this column below.

---

Friday On Lawfare

Compiled by the estimable Caroline Cornett

Jurisdiction and Remedy in J.G.G. v. Trump

Amanda L. Tyler examines the history of habeas corpus jurisdiction and the issues a court considering the return of individuals removed under the Alien Enemies Act (AEA) must contend with, including the foreign location of the detention and whether United States officials retain custody over those removed:

But, even as the Endo Court emphasized that the key factor in determining a habeas court’s jurisdiction is not the location of the detained individual, but their custodian, the bottom line, the Court concluded, is “that the court may act if there is a respondent within reach of its process who has custody of the petitioner.”

This of course tees up the critical question with respect to the possibility of ordering the return of individuals removed now or later to El Salvador under the AEA—namely, is there “a respondent within reach of [the court’s] process who has custody of the petitioner”? In this case, that is not at all clear.

Fanning the Flames of Conflict

Sherri Goodman and Leah Emanuel review Peter Schwartzstein’s “The Heat and the Fury: On the Front Lines of Climate Violence,” highlighting his exploration of how actors from terrorists to wealthy nations exploit the climate crisis and how communities at risk can rally around the need to protect ecosystems on which they rely:

As global politics at the state-to-state level increasingly shifts away from environmental concerns, “The Heat and the Fury” serves as a timely reminder of the urgent need for climate action. Schwartzstein makes it clear: Violence triggered or encouraged by climate change is a growing threat that will destabilize already vulnerable regions unless we take swift and concerted action. By advancing environmental peacebuilding and using tools of soft power, such as water security cooperation and educational exchanges, we can begin to mitigate the worst impacts of this crisis and build a foundation for lasting peace.

The Signalgate Messages Have Been Released and Oh My God

In the latest edition of the Seriously Risky Business cybersecurity newsletter, Tom Uren discusses top Trump administration officials’ use of Signal to discuss attack plans for strike on Yemen, calls for the Trump administration to reestablish the recently disbanded Cyber Safety Review Board, and Meta’s strategy for combating misinformation in the upcoming Australian federal election:

In contrast, Signal messages can be accessed by adversaries by compromising the computer or phone the app is running on. Worse, anyone on the internet can phish you if you are on Signal. Last month, Mandiant even published a report describing how Russian intelligence services do this.

That the group chat was called "Houthi PC small group" is also very concerning. The <subject> <group composition> <size> naming convention implies a multitude of different groups focused on Russia-knows-what topics.

Podcasts

On Lawfare Daily, Daniel Byman sits down with Natan Sachs to discuss Israel's turbulent domestic situation and the renewal of the conflicts in Gaza and Lebanon. They talk about Prime Minister Benjamin Netanyahu's political tactics; the controversies over the budget, judicial reform and the resulting protests; and why Israel has decided to renew operations in Gaza and Lebanon":

Videos

On March 28 at 4 p.m. ET, I sat down with Anna Bower, Roger Parloff, Scott R. Anderson, James Pearce, and David D. Cole to discuss the status of the civil litigation against President Donald Trump’s executive actions, including the deportation of individuals under the Alien Enemies Act, the detention of Mahmoud Khalil, and the targeting of law firms:

---

Today’s #BeastOfTheDay is a rescued pelican in the backseat:

Images Source

In honor of today’s Beast, express your outrage!

---

The Confrontation

I realized as I was writing my column on Friday that I have a new project.

To be precise, I realized it when I typed out the following passage:

What’s getting lost, rather, is the big picture of what is happening, which is nothing more or less than an attempted regime change in a country with a historically stable, liberal democratic regime. It is an attempt at what Yale law professor Bruce Ackerman has described in other contexts as a “constitutional moment”—which, loosely speaking, describes a period of sudden constitutional ferment and action, which may or may not involve changes to the constitutional text itself but which does carry major change to the fundamental principles of governance.

In this case, the proposal involves attempting to replace a bipartisan ancien régime that has formed gradually over the last century or so. It’s a regime that—to reduce it to its essence—has involved two major political parties, each covering a great deal of ideological ground, that have shared a commitment to democratic capitalism and individual liberties. They have had a broadly shared view of American foreign policy interests (with a healthy zone of dispute as to aspects of it such as regulatory energy and marginal tax rates), a similarly shared view of a modest but non-trivial welfare state in the context of robustly free markets (again, with a healthy zone of dispute regarding the scope of that welfare state), broad respect for civil liberties (with fierce argument about what constitutes a civil liberty), the belief in a competent administrative state, and critically, an agreement to relinquish power when the other side wins.

The regime Trump proposes, by contrast, would displace this regime and supplant it with something quite different with respect to each of these elements. His Republican Party does not purport to cover a lot of ideological ground. It is a coalition built around him and loyalty to him personally. It does not respect the right of the other side to participate in the political process unmolested. It takes a patrimonialist approach to governance, waging war against bureaucracy that does not pay fealty to the leader. It has a radically different understanding of the proper role of the United States in foreign affairs—one based on extractive bullying and mercantile trade policies, not on any kind of enlightened self-interest with respect to other nations. And most fundamentally, it does not acknowledge—in either word or deed—the possibility of the other side’s winning elections and displacing it from power.

It occurred to me, as I was writing this, that I want to chronicle this attempt at regime change in America. As I explain in the column, I am not interested in predictions about who is going to prevail.

I am also not interested in writing regular denunciations of what the administration is doing. If merely to describe it is not also to denounce it, surely the addition of a layer of disapproving or outraged rhetoric adds little. In any event, others are doing that competently already.

Rather, my concern is to do a sustained, real-time study of what I describe in the column as a collision of these two tectonic regime plates.