XIII K MAIAS PANEM FECI
An Anniversary
Good Evening:
The poll is complete. “I don’t care” has prevailed decisively in the battle between one post per day and two—one devoted to #DogShirtTV and the other containing both the show and the other daily dog shirt matters:
Among those who did express a preference, posting the show separately managed a narrow victory with 24 percent of respondents favoring it. This means that 79 percent of respondents don’t mind the status quo practice, which I guess means we will stick with it.
Friday on #DogShirtTV, I once again proved the revolutionary nature of the show by summoning up the estimable Ruth Marcus from a moving Spanish train and the estimable Marty Lederman from somewhere less improbable to discuss the last few days of federal court efforts to deal with Trump lawlessness. We talked about everything from the broad strategy of the Supreme Court so far to the writing styles of individual circuit judges:
The Situation
In Friday’s “The Situation” column, I share a list of questions presented in the Kilmar Abrego Garcia and Alien Enemies Act cases that demonstrate the stakes of the litigation for deportees, the rule of law, and the separation of powers.
(18) Will any degree of executive defiance induce Congress to bestir itself on behalf of the court system as the confrontation becomes acute?
(19) Does the electorate care enough to ensure that there is a Congress that will bestir itself to defend the integrity of a coordinate branch of government?; and finally
(20) Can America wait that long?
Friday On Lawfare
Compiled by the estimable Caroline Cornett
The Trump FCC’s Coercion Cartel
Tom Wheeler details how Brendan Carr’s early actions as chairman of the Federal Communications Commission (FCC) seek to intimidate the media, evade judicial review, and erode agency independence. Wheeler highlights how the Trump administration is using the FCC’s coercive investigations, weaponization of the public interest standard, and expansive interpretation of Section 230 to consolidate power:
The Trump FCC is working at warp speed to disrupt long-standing norms and rapidly intimidate those it regulates to adopt its agenda before resistance can build.
In the administration’s first weeks, Carr unilaterally launched investigations relating to or affecting the editorial decisions of media outlets. Such investigations are likely to have a chilling effect on free speech decision-making of the targets while also serving as a warning to others that they could be targeted as well.
The Constitutional Case Against Trump’s Trade War
Ilya Somin—who has filed a lawsuit challenging the Trump administration’s tariffs on behalf of import businesses—argues that courts should vacate the tariffs because their imposition runs counter to the major questions doctrine and violates constitutional limits on delegation of congressional power to the executive:
In sum, it is difficult to deny that Trump’s invocation of IEEPA to impose the Liberation Day tariffs raises a major question. And if it does, courts should use the major questions doctrine to invalidate it. To understate the point, it is far from clear that IEEPA authorizes the use of tariffs, that trade deficits are an “emergency,” or that there is any “unusual and extraordinary threat.” If any of these three preconditions is not clearly met, then the major questions doctrine requires the courts to strike down Trump’s tariffs.
Trump vs. Krebs and the Sound of Silence
In the latest edition of the Seriously Risky Business cybersecurity newsletter, Tom Uren discusses President Donald Trump’s targeting of former Cybersecurity and Infrastructure Security Agency Director Christopher Krebs, whether China’s leadership is aware of and endorses Volt Typhoon's activities, and how Chinese cyber-espionage group MirrorFace abuses Windows Sandbox:
The action against Krebs may not be an all-out assault on the cybersecurity industry, but that doesn't mean it should sit idly by. But as much as we'd love to see the industry speak out, it's unlikely to happen.
The U.S. Constitution provides a system of checks and balances that is designed to prevent the executive from exercising unreasonable power. For now, Congress seems unwilling to hold the executive branch accountable, so we expect to hear the same thing from all the major industry players: crickets.
Depressing.
Podcasts
On Lawfare Daily, Quinta Jurecic sits down with John Keker and Bob Van Nest to discuss why the Trump administration’s attacks on law firms pose a threat to the rule of law, what pressures might move a firm to capitulate, and what firms who have chosen to fight executive orders are risking.
Videos
On April 18 at 4 p.m. ET, I spoke to Anna Bower, Roger Parloff, Jurecic, and James Pearce about the status of the civil litigation against Trump’s executive actions, including Judge James Boasberg's finding of probable cause for contempt in the Alien Enemies Act case.
Today’s #BeastOfTheDay is the pangolin, seen here as the living embodiment of the sound “squelch”:
In honor of today’s Beast, find a puddle to splash in.
Tell Me Something Interesting
This weekend marks an important anniversary. Well, yes, the anniversary of the resurrection of Jesus—but that’s not what we’re talking about today. No, not the anniversary of the day weed was invented (though the story of how exactly 420 came to refer to marijuana is an interesting bit of cultural history in itself). No, this is me, EJ Wittes. So this is going to be an obscure Roman history thing.
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