The Confrontation: Thoughts on the Old Regime I
Two cross-cutting features of the regime Trump is trying to displace
Good Morning:
Friday on #DogShirtTV, we had a grab-bag episode. The estimable Eve Gaumond told us about her latest AI experiments. The estimable Minna Ålander talked European politics. And I tested what it would take to get someone other than the estimable John Hawkinson to start the questions flowing:
The Situation
In Friday’s “The Situation” column, I reflect—not ironically at all—on the characteristics and values that make the United States an exceptional nation:
It is exceptional because it has academic freedom in its universities, which the government also cannot control.
It is exceptional because anyone can defend his or her rights with counsel of choice, and it has a legal profession that stands up to power on behalf of the powerless.
It is exceptional because its businesses do not need to curry favor with those in power in order to succeed.
Friday On Lawfare
Compiled by the estimable Caroline Cornett
How History Repeats Itself: Gloss and the Foreign Relations Constitution
Edward T. Swaine reviews Curtis Bradley’s “Historical Gloss and Foreign Affairs: Constitutional Authority in Practice,” which explores how presidential and congressional practices shape interpretation of the Constitution. Swaine praises Bradley’s discussion of how historical gloss tends to augment presidential authority and highlights further issues to consider, including criteria for gloss and the consequences of gloss:
In these case studies, Bradley does a great job not only of surveying formative historical episodes—for which he canvasses primary and secondary materials, focusing on legal positions expressed by executive branch officials and Congress regarding their constitutional authority—but also in noting the challenge of drawing unambiguous conclusions from those episodes or materials, repeatedly cautioning against overreading the evidence. His caution derives in part from his acute awareness of an important concern about using gloss: that executive branch officials are institutionally better situated to synthesize and express their views, in the moment and for posterity, as to how practice supports their authority. This means, significantly, that relying on historical gloss tends to augment presidential authority.
Security Vendors Are Constantly Being Attacked
In the latest edition of the Seriously Risky Business cybersecurity newsletter, Tom Uren discusses the threats to security firms in supply chain attacks, a Semafor report revealing the extent to which top Trump officials and supporters use Signal and WhatsApp group chats, and J.P. Morgan Chase’s demand for secure software:
When we first wrote about Signalgate, we wondered why, in a group chat containing the United States's top national security officials, did no one say, "Hey, perhaps we should talk about this elsewhere"?
Semafor's article on the importance of Signal group chats gives us a glimpse into the answer. When group chats are the lifeblood of policy conversations, isolation is political exile.
Podcasts
On Lawfare Daily, Quinta Jurecic sits down with Kathleen Romig and Devin O'Connor to discuss the Social Security “Death Master File,” the implications of officials using it to mark immigrants as dead, and the Trump administration’s repeated attacks on Social Security:
Videos
On May 2 at 4 p.m. ET, I sat down with Scott R. Anderson, Anna Bower, Roger Parloff, and James Pearce to discuss the status of the civil litigation against Trump’s executive actions, including the legal challenges to deportations under the Alien Enemies Act:
Today’s #BeastOfTheDay is an emu playing tag:
In honor of today’s Beast, enjoy your bipedalism!
Today’s #BeastOfTheDay is not this hammerhead shark made of hammerheads:
Or this spoonbill made out of spoons:
While both of these are majestic Beasts well worthy of recognition, they have been beaten out in today’s Beast competition on account of being made of metal. The emu is a flesh and blood beast.
The Confrontation: On the Strengths of the Old Regime
In my last sets of notes on The Confrontation, I listed several of Donald Trump’s weaknesses in his struggle for regime change in America.
Let’s shift gears now and consider the strengths and weaknesses of the Old Regime. This is harder than assessing Trump’s own strengths and weaknesses, because the Old Regime isn’t a person, whose character traits one can just list. It’s a complex system, the parameters of which are porous. Each of the elements of this system—a free press, voters, etc—is a hugely complicated subject unto itself.
That said, let’s zoom out to 40,000 feet of altitude and think a little bit about the system’s resiliencies and vulnerabilities. We’ll consider the strengths first and then the vulnerabilities later in the week.
But today, I want to start by noting two features of the Old Regime that are both strengths and weaknesses: its diffusion of power and its resulting leaderlessness.
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