Lawfare Daily: The Trials of the Trump Administration, Sept. 5

[Intro]

Benjamin Wittes: It is the Lawfare Podcast. I'm Benjamin Wittes, editor in chief of Lawfare with Lawfare Senior Editors Scott R. Anderson and Roger Parloff, Lawfare Public Service Fellow Loren Voss and Katherine Yon Ebright, counsel in the Brennan Center's Liberty and National Security Program.

In the September 5th episode of the Trials of the Trump Administration, we talked about the D.C. attorney general's lawsuit to stop deployment of the National Guard in the District of Columbia, the Fifth Circuit Court of Appeals ruling finding illegal President Trump's invocation of the Alien Enemies Act, Harvard University's win over the president in its fight over federal research funding, and so very much more.

[Main Podcast]

It is Friday the 5th of September, 2025. It is 4:00 PM and you are watching Lawfare Live. I'm Benjamin Wittes, editor-in-chief of Lawfare, and I'm here with Lawfare Senior Editors Scott R. Anderson and Roger Parloff, Lawfare Public Service Fellow Loren Voss and special guest Katherine Yon Ebright of the Brennan Center for Justice at NYU Law School.

Welcome Scott, Katherine, Roger, and Loren. Alright, we've got a relatively light schedule today because we've already had two Lawfare Lives this week that has covered a fair bit of what we would normally try to cram into Friday.

And so this is a great week folks, for those of you who have questions to put them in the Q and A. And, and to and we will get to the questions at the end and I'm going to make a point of leaving time for them. We have two quick updates on matters that we are not gonna spend a lot of time on today because we did whole dedicated shows on Lawfare Live for them this week.

The first is what we call internally ‘Boat Boom.’ Just before we went live, the administration issued its War Powers report on the blowing up of the alleged  Tren de Aragua speedboat in the Caribbean Sea. Scott they, the administration kindly waited for you to publish your piece before it released the document.

That was extremely rude of them. Number one, what does the document say? And number two, how much of your analysis in the lengthy piece that you have just published on Lawfare, does it moot out?

Scott R. Anderson: Oh. So I, we here make one clarification. It's not clear to me actually the administration has really used this letter yet.

It has appeared in the wild on Bluesky accounts, most notably IOP on our friend Brian Finucane’s Bluesky account where he has a image copy. You know, often traditionally these things are posted on WhiteHouse.gov. That's not actually statutorily required. The administration's required to provide it to Congress within 48 hours. So this copy may not officially be posted by the administration or not.

If you recall, after the Soleimani strike, there was the 48 hour report was provided to Congress a little late, as I recall but was not, never actually posted publicly. Instead, it was released to the public by Congress eventually.

So I'm not sure exactly where it's coming from, but Brian is a fairly credible guy so I trust him that it is the actual report, an actual letter. For, fortunately for me, at least for the purposes of my workflow it does not come as a huge surprise.

The letter essentially confirmed the administration is relying upon the president's article two, constitutional authority to pursue this particular military action that it pursued on Tuesday, not relying on his statutory authorizations such as an AUMF of any sort.

And in, in terms of international law, it isn't making as far as like, you know, almost entirely an individual self-defense argument. It makes some discussion of challenges and actions by other states in the region but doesn't really indicate that its acting in their collective self-defense. That is something that the deputy spokesperson at the White House had said earlier this week, doesn't appear to have made it into this final statement.

The only thing that's notable here–

Benjamin Wittes: self-defense. Self-defense from what? From drugs.

Scott Anderson: Their argument is that Tren da Aragua is engaged in the hostilities against the United States by virtue of. Primarily narcotics trafficking and the flow of unlawful immigrants into the country that it is facilitating as well as criminal activity, various types of violent criminal activity that's engaged in. Although notably while at least as I mentioned in my piece, that is a somewhat more credible argument than relying on immigration flows and narcotics flows, although I think it still poses big issues.

They seem to be emphasizing the narcotics flows and the immigration flows pretty consistently in their messaging. The, the, the meat, And so this would be a self-defense against that action in, in the individual in the United States and maybe some element of collective still in there. But again, not stated expressly like it was by the deputy spokesperson earlier this week.

The most notable element that is in there, I would say is that at some point it makes a reference to other countries in the region being unable or unwilling to adequately address the threat presented by Tren de Aragua and potentially other groups

Benjamin Wittes: As I predicted it would yesterday.

Scott Anderson: It is not terribly a surprise. It was not an issue in the initial strike that happened on Tuesday, which happened in international waters so it did not directly interfere with the sovereignty, the territorial sovereignty of another state as it would if it were a strike on a another country's territory or in their territorial waters. But the unable or willing justification is the basis the United States has relied on before to say we can take military action against non-state actors in another state without its consent, such as in Syria against the Islamic State.

That is a controversial argument, but one that the United States and a number of allies have more or less bought into, at least in the context of the Islamic State campaign. And it may be something that Trump administration tends to roll out to take military action in Venezuela or potentially in other states in the region without their consent. We will have to wait and see about whether that actually comes to fruition or not.

Regardless, the core legal issues here and the core legal arguments is basically what I anticipate in my piece. So if you want a dissection of those and critical assessment of those, take a look at the piece I posted on Lawfare a couple hours ago.

Benjamin Wittes: Excellent. The second matter that we are going to update you on, but not go into deeply is the matter of the Guatemalan children dnd that arose over the weekend. We did a whole Lawfare Live on this on Tuesday, and relatively little has happened since then. So we're gonna go very light on it today, but Roger give us an update on where we are in the pass off from Judge Sparkle Sooknanan to Judge Kelly on this matter.

Roger Parloff: Yeah. Like you say, we're waiting still, we, we, for the government to file its first formal explanation of wat in the world it was doing. That will come tomorrow. Both its explana-, its response. There's now a motion for a preliminary injunction on the table. The she, Judge Sooknanan had had issued an emergency TRO that's been replaced by a motion for a preliminary injunction.

We'll get the government's response to that. Also, its response to the class certification motion. There hasn't been a formal class certification yet either, so, and then we'll have a hearing on Wednesday at two in front of Judge Kelly, as you said.

Benjamin Wittes: Just a note on this, for those who missed we had two unscheduled Lawfare Lives this week to deal with these matters. You can find them in their entirety on on YouTube, on our YouTube channel or on the Lawfare Podcast feed. We ran them in total this week. So, if you want to go back and find ones that you may have missed they are all there. And we have in depth discussions of both of these matters. Alright, so

Roger Parloff: We, we also have Anna's, she live blogged the hearing itself from August 31st, and that's on at Lawfare. And that's really still the best way to find out what we know about the government's theory.

Benjamin Wittes: That's exactly right. In that case, and in, and–

Roger Parloff: Anna Bower

Benjamin Wittes: In, in the case of the boat targeting as Scott mentioned, we have Scott's piece that went up a couple hours ago. And so, these are covered in considerable depth, both, both in prior Lawfare Lives slash podcasts, but also on in in writing for those who want detail.

Alright, that is a, 10 minute summary of past art. Let's talk now about what's going on that we haven't talked about, which is that we have very significant developments in the I don't know what to call it, the occupation of the deployment of the National Guard in the invasion of the District of Columbia by federal forces, particularly National Guard of the district and a bunch of states with southern states, mostly with Republican governors.

We have a, I don't know what to call it, maybe a a document of surrender by the mayor of the District of Columbia at like an Appomattox Courthouse. She has signed an executive order pledging cooperation with federal law enforcement to the maximum extent allowable by D.C. law. I, we also have a suit by the D.C. attorney general, who is separately elected, over the continued deployment of the National Guard.

So let's start with the executive branch of the D.C. government before we turn to the executive legal branch of the D.C. government. Scott what did the mayor do? Why did she do it? And is this a executive order, a kind of hostage video by the mayor of the District of Columbia, or should we assume this is something else?

Scott Anderson: Well, I think we need to contextualize this both in terms of Mayor Bowser's statements and posture towards the broader Trump administration approach to what's been happening in Washington, D.C. for the last month, as well as the specific question of deployment of federal law enforcement.

We have to remember there's three prongs to what the Trump administration has done. One, they have deployed federal law enforcement in D.C. to enforce federal law in a variety of ways that pushes further and is much more actively involved in local D.C. matters than it might be in the ordinary course.

Two, they have used a provision in D.C. law, which the mayor's office and D.C. government hasn't challenged except in one regard, which I'll get to in a second, that says the president can re request services from the Metropolitan Police Department for federal purposes for up to 48 hours or 30 days if they notify Congress.

Those 30 days, which the president invoked are up, or about to be up. I can't remember what exactly which day they expire. But there is the risk, the possibility that the president could seek to make subsequent requests and additional request. There's no cap on the number of requests you can make for these sorts of services.

And the D.C. government position has been, we understand we're obligated to provide these services. The law doesn't provide wiggle room. They did sue and frankly, more, less successfully a accomplished a pushback against an effort by the Trump administration to assert more direct control of the Metropolitan Police Department. They said, look, we're obligated to provide you services. That doesn't mean you get to come change our personnel, change our internal policies, change our rules about how we go about our business but we will provide you those services.

Then the third part is the National Guard contingent, both the D.C. National Guard Mobilization and the foreign National Guard contingent. Mayor Bowser has been, and for those of you who are

Benjamin Wittes: To be clear, this is under this, is under a completely different legal authority, right.

Scott Anderson: Yes, exactly. This is under a D.C. code legal authority that allows for the National Guard to be brought up by the president in his capacity as essentially the commander in chief of the D.C. National Guard. It's as if he were the governor of a state National Guard is the, is the rough parallel.

And the operating assumption of the Defense Department, I don't know if it's ever been vindicated by court, I don't believe it has. But the operating assumption is that because they're in this capacity, they are acting essentially under the equivalent of state authority. So they're not federalized groups, they're still D.C. National Guard troops acting under that hat. And therefore they're not subject to Posse Comitatus Act limitations in the same way as they would be if they were fully federalized. And therefore they can be and have been used to engage in things that are much closer to law enforcement, including, including searches and cedars.

And that's not entirely unprecedented for the D.C. National Guard. That is something that has happened in other contexts throughout history and, and somewhat regularly in the context of things like major events like inaugurations that happen in D.C. It's the scale and occasion and justification that makes this case use exceptional.

In this context, it, it appears to me the mayor has said, look, the D.C. effort to quote unquote federalized Metropolitan Police Department is about to come to an end. They may reassert that in trying to reassert that by asserting services. But right now it looks like Congress is not gonna take up an effort to extend 30-day period as would be necessary, which probably would not fly anyway, the least not free standing 'cause it would require 60 votes in the Senate.

The president hasn't yet indicated that they're gonna make an additional request for additional 30 days or otherwise. It's possible that this is part of a compromise by the part of the mayor saying, look, I'm gonna be obligated to provide services if they demand it. So why don't I actually just quiet and cooperate with federal law enforcement purposes to the extent allowed by D.C. law, meaning if D.C. law prohibits it, I'm not gonna be able to do it.

And in the end, frankly, if she wants to say, well, I need resources to do other police department activities and not to do this cooperation with federal police department, that's still well within her discretion to do that. And notably you know, this is the situation the mayor is facing pragmatically, where the Metropolitan Police Department, it's under a lot of stress.

Remember, D.C. is facing a budgetary crisis, not quite the scale we thought it was going to be, you know, six months ago. This is a situation where a huge chunk of D.C.'s budget still has been withheld by Congress and that it was anticipating. And this has entailed a number of things, including big cuts to the overtime provided by Metropolitan Police Department.

So there's a genuine concern that they were going to be understaffed on law enforcement in terms of the city. This is not an unreasonable way to address that. And this has kind of been Bowser's approach to this for the whole time, saying there are parts of this where the president and I agree. We, we need, and it's not bad for the federal government to give us more resources to fight genuine law enforcement problems.

The parts I don't like is when they terrorize people through ICE enforcement, immigration enforcement, and that when we have National Guard everywhere, intimidating people into turn business and making people feel like they can't go about their business, that's what she's objected to. This does not give ground on those, this says, but insofar as we have these common interests, we're gonna keep working on it.

And, and in that sense, it's consistent with what has been Bowser's main rhetorical line this point. And it's an interesting compliment potentially, although who knows who is instigating what to the lawsuit that we saw the attorney general file this week as well, which specifically relates to the National Guard deployments.

Benjamin Wittes: Yeah. So we're going to get to that in a moment. But I wanna poke at this a little bit more because it seems to me that one thing you could say about Muriel Bowser is that she is a, a clever politician. And basically what this says is, hey, we're gonna cooperate to the maximum amount that we could be forced to anyway. Does this executive order actually do anything? Or does it merely say we are going to not fight you on the things that we're confident you could force us to do if it came to, you know, a headbutting competition?

Scott Anderson: I'm not even sure it actually goes quite that far in the latter. Essentially what it does is it appoints a deputy mayor or pardon me, designates the Deputy Mayor for Public Safety to serve as the point person with the committee the president's established for this kind of broader effort. It is the something, what is it called? The SBAC is the acronym. It has a, these ridiculous name, something about beautification. Oh yeah, the Making the District of Columbia Safe and Beautiful.

Benjamin Wittes: That's 'cause they're collecting gar, the National Guard's collecting garbage. So, you know, they're engaged in beautification efforts.

Scott Anderson: The, the biggest giveaway I would say in this is that it acknowledges that since August 11th, 2025, in part because of cooperation with the federal authorities violent crime in D.C. has decreased. I actually think that's objectively correct as I understand it. Unfortunately, the local economy has suffered, business has suffered, a lot of other bad things have happened at partially in response to this deployment.

But violent crime has decreased. And it notes that essentially commits through the Deputy Mayor for Public Safety to say that they are going to continue to work towards, I'm quoting here, shared goals of reducing crime and increasing a sense of security for residents and visitors, including a priority focus on violent crimes, especially gun crimes.

Now that is an area where D.C. government is, has a genuine interest. So I'm not sure if this even goes so far as to say it is conceiving on areas where the president could force the D.C. government to do more 'cause they could request federal services, or pardon me, services from Metro Police Department to do things like strict immigration enforcement.

And that appears to be consistent with the law because it is enforcing federal law for federal purposes, and it's a service that MPD could provide. This doesn't go that far. It really does seem focused on the kind of shared part of the Venn diagram between what the Trump administration wants and what the D.C. government wants.

But I'm not sure it's as big a giveaway as it has been clar-, has been framed in the media. It's understandable 'cause people in D.C. in particular I live here are angry, very angry and very frustrated with this general situation. But from the mayor's perspective, again, it's consistent with the tax. She's kind of gone along this whole time saying, there's not much I can do about this, but if I find ways we can work together, I'm gonna, the city's gonna come out better and I'm gonna come out better on the back end.

And I'm not sure she's a hundred percent wrong on that if she really gets them to stop doing some of these other emergency measures that they've been doing, particularly around the D.C. National Guard deployment and ICE, an aggressive, aggressive ICE enforcement, which is the thing that's been driving down local business, local restaurants, things like that. And otherwise hurting the local economy, at least by the assessments that I have been tracking.

Benjamin Wittes: Alright, so that brings us to the attorney general's suit on the national guard deployment. Loren let's start with a political question about this. Is the attorney general here acting as a rogue actor undermining the mayor's policy of appeasement of the Trump administration? Or is he acting as her, a bad cop to her good cop in a coordinated effort to show different faces of D.C. depending on which part of federal policy that you're talking about?

Loren Voss: I mean, that is, that is the question, right? So this was filed by the D.C. attorney general. It's not clear that this was coordinated with the mayor in any way.

Benjamin Wittes: Which is super convenient, by the way, for the mayor, that like she has total plausible deniability about this if she wants it, but she can also like take it out as a dagger if she wants. It's like her role in this is as best as I can tell, entirely opaque.

Loren Voss: Yeah, exactly right. And, and this is also unusual because, you know, it was just starting 2015 that the attorney general is a separate elected position, right? Oh, can you do this?

Benjamin Wittes: I'm old enough to remember when we used to call that job the corporation counsel and that which was the, and it was not a separately elected position, it was like an appointee of the mayor and we used to call it affectionately ‘corp counsel’ as though it we're like a dead body or something.

Loren Voss: Yeah. So no longer the case. I am not into the politics to know exactly how their relationship between the attorney general and mayor is today. But it has been very clear that he has come out with some statements about doing this and why he's doing it. And none of it, you know, mentions the mayor, none of it talks about what the mayor is doing. None of it talks about the, the mayor's order that we just discussed. So it's just really unclear how these things fit together.

But as Scott said, you know, the mayor's order does not talk about the National Guard, right? Like that is not part of what she's talking about in the federal coordination. But it is awkward to say that since there's been federal involvement, violent crime has notably decreased. And so, and then to also have your attorney general saying we want them out, we want the National Guard out now. Right. A

nd so there does seem to be some kind of conflict there, but it, from a political standpoint, it's really unclear. Is this some part of co, you know, a coordinated campaign between the two of them to play bad cop, good cop? I don't know. I don't know if anyone else on, on here has thoughts on that, but as of now, we're all just guessing.

Benjamin Wittes: All right, so what is the substance of the, at let's, let's as assume the attorney general is an entirely independent, separately elected actor pursuing his own vision of the public good, or his electoral good, in the District of Columbia, independent of the mayor's policy, what is his claim against the federal government with respect to the continued deployment of National Guard in the District of Columbia?

Loren Voss: Yeah, so this is a complaint for a declaratory and injunctive relief. There's four causes of action. I'll quickly go through them and then kind of talk through the law, because otherwise we'd spend two hours on this going through each one.

But the first one is violations of the APA contrary to law. That is, I should mention, this isn't just against Trump, this is against the DOD Secretary Hegseth, the Army Secretary of the Army, DOJ, Attorney General Bondy, U.S. Marshals. Right? And so depending on the claims, he's, he is pointing to different people. So, violations of the APA contrary to law with, you know, that being against DOD and DOJ.

The second one, violations of the APA again for arbitrary and capricious, DOD and DOJ again. Third one, violations of the Constitution, looking at separation of powers, the Take Care Clause and the District Clause, and that's against everyone. And then, the fourth is equitable ultra vires, against everybody, right? And so, but all of these are focusing on some of the same underlying facts and legal issues here, right?

So we know the D.C. Guard was mobilized, right? And out of state National Guard was mobilized under Title 32. And the argument is all of that was for the purposes of law enforcement. And all of that was put together under Joint Task Force, D.C. command and control. And their argument is that by doing that, you made all of this federal, even though you called it Title 32.

So I'll say, you know, the APA claims are are derivative to the violation of the law of the law. So I wanna walk through the legal pieces. But first there's like this question of APA and applying it to, to military deployments, right? And so obviously those two claims aren't against the president. We know we can't, we can't do that. They're against the DOD and DOJ.

But this isn't military mobilization. Both the D.C. Guard and 502(f) by the president and president's orders. So there is this weird, like, are, you know, can the APA even apply here? Not my area of law, but you know, that's a big question here.

But getting into the the specific pieces here, right? So what laws are they claiming was violated the one we've talked about a couple times on here, the home, the Home Rule Act, right, 1973 made the mayor the executive power of the district. And basically they argue, you know, and that gave her the ability to police the boundaries of the district, right? And this is infringing on her executive power. This is infringing on her police power.

But remember as we've cited here a couple times, there's multiple provisions of the D.C. code that, that give the president the authority over the National Guard, right? So we have the Commander in Chief clause 49409 and then we have the provisions we've been talking about when activating the D.C. Guard, 49102, and 49103. We have the, the Home Rule Act provision, we just talked about, 704, which it gives the president to call out the MPD for 30 days, right?

So we have this, these provisions, and even when you read the Home Rule Act in its entirety, D.C. is still unique. It is not created this new entity that's the equivalent of a state. The mayor is not equivalent to a governor. And you see that throughout. So trying to say that this has taken away her executive power and her ability to police, you just see numerous provisions that show that that power is, is reserved and in some cases, given to the president.

So, I, I, you know, it's kind of unclear how exactly that argument would come out. I would also say, as we just talked about, it's not really clear the mayor is contesting this, right? So it's kind of hard to say that this is a violation of the Home Rule Act and you're taking power away from the mayor when the mayor is putting out a friendly face and saying, I'm happy to work with you guys. You've helped fix crime.

Benjamin Wittes: Right? And remember folks that unlike the federal government where the attorney general represents the administration, in most states ihe attorney general and the district is like most states in this regard the attorney general is a separately elected official who, you know, may be, you know, may represent the governor or in this case the mayor, but may have interests adverse to the–you know, this is not in the, in the parlance of the federal government, a unitary executive.

And so there's a, it's important to understand that the, the fissures within the D.C. government, again, it matters if the mayor and the corporation council or the attorney general here are aligned or whether they're you know, operating for reasons of their own.

Loren Voss: Yeah, right. And so, it's just interesting to hear an argument that the mayor's power has been taken away unlawfully, and then the mayor

Benjamin Wittes: And the mayor’s like take more.

Loren Voss: Right. So it makes it a, makes it a harder argument. The second law that they point at is EMAC, the Emergency Management Assistance Compact. Right? So that was the partnership agreement that allowed governors to request National Guard forces from other states, right when they have emergencies. That was approved by Congress in 1996. For purposes of that act, D.C. is called a state, right? So the, the EMAC applies to D.C. as well. The D.C. Council authorized the mayor to be the one to make requests and approve requests through the EMAC.

The argument is this is the only way to do state to state deployments. And so that is what should have been used here and was not. And so the mayor should have been the one to approve. There, there isn't clear evidence that this is the only way to do Title 32 deployments. That is a claim that they're making. That is not how National Guard Bureau or National Guard or DOD has looked at this till now.

I mean, there's even like a National Guard Bureau handbook on domestic law that came out in the last administration and they said for Title 32, 502(f), you do not need a mutual aid agreement, right? And so that is how they've understood the law up till now. So this argument that EMAC is the only way to go is not clear or proven anywhere.

And so I think the argument will be no, you know. You can use EMAC for state active duty in some Title 32 when a governor needs to make the request, because that was the purpose of it. But if it's for a Title 32 502(f) mission and a president's, you know, mission that he's trying to do a federal mission, then you don't have to use EMAC. EMAC was supposed to help governors both with the, the, like the financial side of getting reimbursements and the coordinating side. And so when it's a federal mission, you don't need it. So I think that'll probably be the argument in response.

You also have a this argument that it's contrary to, to constitutional and federal law because you've assumed command and control out of outta state National Guard in Title 32, right? And so its like the militia clauses and then statutes on the National Guard saying, you know, you're only supposed to have federal command when they're called into Title 10, you cannot have Federal Command in Title 32.

And the, the basic argument here is that Joint Task Force D.C., JTFDC, assumed command and control out of all of the out-of-state National Guard forces, even though they were in title two, Title 32. Right? So first, you know, D.C. National Guard, you can put to the side, right? They have their own statutes per D.C. code.

But this really highlights an issue with Title 32 that's particularly exacerbated in D.C. right? 502(f) is a federal mission, but you're supposed to retain state command and control in D.C. if you're supporting the D.C. Guard, the president is the commander in chief, right? I think what's wrong here is the assumption that because Joint Task Force D.C. is in operational control, that means command and control by the governors is lost.

And this is kind of like a tactical point here, but even in the EMAC, which is referenced throughout their complaint, you know, you can turn to Article Four and it says, forces remain under command and control of their regular leaders but the organizational units will come under operational control of the emergency service authorities of the state that's receiving assistance. And this is just, you know, an a a tactical operational thing.

You know, you can't have a whole bunch of national guards in one state and all of them go back to their governors for operational control and, and getting the details of their mission right. They tend to fall underneath whatever that state is. And so what you see, here is them saying, okay, well joint task force is run by the Secretary of the Army. It's federal, therefore all of this is federal. And I think that is simplifying what is actually happening here, right, in in a way that's confusing.

But it does point out a huge loophole, right? Right. Because what it's saying here in, in a D.C. scenario is you could have the president have operational control of everyone's state National Guard, operational control still, right? And if every governor was willing to send the National Guard to D.C. So you could create a force to get around, you know, the insurrection Act without all the limitations and oversight that Congress intended.

What it misses, I think here is the mission authority piece of it, right? So we keep talking about Title 32 and, and how you can mobilize. And we usually see like a veiled hint at the protective power, right? That argument that there's an inherent power to, to protect federal people, properties, missions. And we don't, we don't even see that playing out here. So it's really unclear what that federal authority is. Scott, did you wanna add something here or.

Scott Anderson: I have, I have some thoughts I wanna share, but go ahead and finish and then I'll, then I'll hop in when you’re done.

Loren Voss: Okay. Yeah. So, but I think this, this highlights that big issue, right? Like there's 430,000 troops in a National Guard, right? And so under a, a Title 32 exception, you could have if every governor was going to send their troops, which isn't gonna happen, you could have half a million troops in D.C. under Title 32, you know, around all of the exceptions of the Insurrection Act, around all the constitutional oversight that could come with that. And so I think they've highlighted a good area. It's just confusing that they tend to think that Title 32 immediately makes, in this situation, makes everything federal.

Their final claims are around a violation of Posse Comitatus and 10 U.S.C. 275. Right? And this goes back to the, you know vecause they're doing joint task force D.C. it's federalized and it's a law enforcement operation. There's a, there's a factual question around are they actually doing law enforcement, which I think is a fair question to ask.

Benjamin Wittes: They're just standing around. There's absolutely no law enforcement happening.

Loren Voss: Right. Well, and, and instead of raking leaves, I hear they're actually doing like landscaping now and like planting trees and things in tha mulch.

Benjamin Wittes: And a shit load of standing around. There's, it's mostly just, you know, standing there.

Loren Voss: Right. So, so I think there's that factual question. Their argument is, well, the marshals deputize them, therefore they're obviously doing law enforcement. But we did have one National Guardsman show their, their like smart card on the rules for the use of force and that, that explicitly said no arrest, no search, no seizure. And it seemed like it was saying that as of now, the rules for the use of force are not including any of those things.

Secondly, you know, even if they are doing law enforcement for the PCA to apply, right, they need to be federalized- part of the army and the Air Force, and this gets back to the thing we just talked about of command and control versus operational control under Title 32, and they go back to the same federalized argument.

And then finally, so we have 10 U.S.C. 275, and maybe somebody can help me out on this because I am really stuck on why they think that this applies here. Right? So 10 U.S.C. 275 is a restriction on military personnel to do law enforcement specific to activity under this chapter. And this is chapter 15 of Title 10, right, like the disca section, which is not what anyone is claiming the authority is here.

The argument seems to be that part of that provision also said that DOD needed to make a policy on this. DOD did, they came out with a DOD instruction, a DODI 3025.21, Defense Support of Civil Law Enforcement Agencies which basically says you shouldn't be doing law enforcement. You, you know, you can do these other things that are tangential, but you cannot do law enforcement.

But it specifically says it doesn't apply to National Guard and state active duty in Title 32. So I'm not, I'm, I'm a little bit mystified on what their 275 argument is here, because to me, it seems like nobody is claiming that that's the authority that's being used. But that is, that is one of the other legal violations that they're claiming. So, I mean, I think we'd expect a potentially a TRO sometime soon. We will, we will see. But over to Scott to add in.

Benjamin Wittes: All right, Scott.

Scott Anderson: Well, I, I think that's a phenomenally useful summary, and I agree with a lot of what Loren said, or at least agree that there are reasonable arguments to the contrary in a lot of this, but I, I, I, I have some thoughts about why strategically this may be something that D.C. wants to do and it runs kind of on spectrum or kind of two possibilities or poles, and the answer may be between the two.

One, this is just what I think some people have thought about this, which is just the attorney general who is someone who politically is not always a hundred percent aligned with the, with the mayor saying, I'm gonna make, I don't agree with the mayor. I want to get, capture the political fight that is in D.C. that people are angry about this. I'm gonna channel that.

Or an alternative might be, the mayor's cool with that. The mayor said, I'm gonna be good cop, you'd be bad cop. And we're gonna play that off the Trump administration. Right, some combination of those. And in which case, this is a largely symbolic gesture.

I actually don't think this is strictly symbolic though because this is a lot more thorough and comprehensive than you would need for something strictly symbolic, honestly. And on top of that, we have to bear in mind that the attorney general's office in D.C. has scooped up a lot of for lack of way, put it better way to put it, like high-end legal talent including a lot of people with a lot of experience with appellate, including all way Supreme Court litigation.

So three of the special counsels on this two of them are former Supreme Court clerks. Two of them are former senior Biden administration officials at the Justice Department working on appellate work, as I recall, or at least one of them worked on appellate work that's notable. Now it doesn't mean that they're above putting forward something frivolous like that's part of the job and that's what your boss wants. That's what you would do. But I do think it means that they may have thought through some of this a little bit.

What I would guess is this, a lot of the very reasonable arguments that Lauren has put forward are well established in Defense Department and executive branch practice. None of them have been subjected to judicial scrutiny almost ever. And if I were a Defense Department attorney, I would never want them to be not, 'cause they might not might know pass muster, but some of them might not.

And some of them are particularly bad, right? Like the 502(s)(f), the way that 502(f) troops have been put under the direction of federal troops and the use of 502(f) and authority, that primarily on its face seems addressed towards drill drills and exercises that's something you may not want a court looking at too closely.

The same goes with the mobilization of the D.C. National Guard. Remember, the provision that they cite in here that people assume they're relying on is contingent upon a request by the mayor or by two other officials. We actually haven't gotten any reports that any of those requests have happened. The theory that Chris Mirasola put forward in our page is that there's another authority the executive branch has interpreted allowing for the mobilization, but that like 502(f) actually talks primarily about drills, exercises in an other purposes. And that other purposes has been ratcheted opened by the executive branch over many decades to allow for a broader range of activities. I would not want a court to look at that either if I were the executive branch.

So what I kind of suspect is happening here is a, this is a complaint. So it's their first effort to kind of throw everything in so you get all your arguments, you have all the pieces you need. We'll get a sense of their much more cohesive argument, how they fit together when they file a motion for a TRO or preliminary injunction or, if they skip that, summary judgment, right.

We have, we should wait to see there, because my guess is they're gonna knit some of these together, like the 275 bit. I'm gonna guess the most reasonable argument for that is that it's an argument less about what's authorizing this and more about that Congress has set up a set an alternative regime for doing a lot of the activities that the exec, the executive branch is trying to do here. And instead of using those express authorities, they're using a bunch more implied authorities without complying with the express legal requirement. Congress has imposed here.

There are a lot of these sorts of arguments that you see brought out in this sort of litigation. I don't know if they're gonna all win the day. I gotta guess most of them aren't. And there is a risk here, particularly around the D.C. sovereignty stuff, which is the biggest reach in this to me, where you could end up with precedent that really, really hurts you. But on the flip side, you are able to threaten the Defense Department who may have some sway with the administration-

Benjamin Wittes: That's the War Department-

Scott Anderson: -do you really wanna fight this out?

Benjamin Wittes: -to you Scott.

Scott Anderson: I'm sorry, the War Department, do you really, really wanna fight this out in court? And as long as you keep this deployment up at this scale, at least at this scale, we're going to keep litigating this out and have the opportunity to do so. You can moot this by ending the deployment.

Or if they do go forward again, there are little points they could score big wins on. And remember, this is the same team that was savvy enough in how they approached the prior litigation over the Metropolitan Police Department dispute, which I think was handled very savvy.

They did not make a very broad argument there. It's very narrow, very targeted about what it means to provide services for a federal purpose and what that means in terms of governance structure. But I think they may be a little bit more of a strategy here, and I'm looking forward to the PI and TRO motions that seem likely to be coming at some point to get a better sense of what it is.

But I, I am, I think there's more here than just a strictly symbolic political maneuver as some folks in the media have kind of been covering this as. I think there's a little bit more of a three-dimensional chess happening to some extent doesn't mean it's successful or well considered but just a little more considered to some extent.

Benjamin Wittes: Alright, so meanwhile in Los Angeles the Justice Department slash the Department of War has taken Judge Charles Breyer to the Ninth Circuit. And the Ninth Circuit has stayed his ruling. Loren, what's going on in our sister city of Los Angeles with respect to these deployments?

Loren Voss: Yeah, I mean, this will be quick because they gave, you know, like three sentences, no justification, but basically, we talked on an earlier Lawfare Live about Judge Breyer's decision right? Issued the injunction on Monday. That said, you know, the military deployed in California must stop doing actions that are law enforcement, right, unless they can find a valid PCA exception.

Yesterday a three judge panel, the Ninth Circuit had a very brief order in which they granted the administration's motion for a stay in the case. And there is until, you know, until the arguments can be heard in greater detail. So no dates for those arguments have been set. I will note that three judge panel, Bennett Miller and Sung are, is the exact same panel that stayed the TRO back in June.

So I think at this point we're, we're gonna wait and see. I would assume the attorney general's also gonna file a brief in opposition, so we'll kind of see what comes out there. But they didn't give any reasoning. This is not like, you know, before. So just like three sentences saying it stayed.

Benjamin Wittes: Alright, let us move from the Ninth and D.C. Circuit down to the Fifth Circuit because it's not hot enough up here. We're gonna go to New Orleans where in frankly, a decision that took me by surprise. I had been expecting a, a decision that looked much more like the dissent in this case.

The Fifth Circuit Court of Appeals, perhaps the most conservative appeals court in the country gave a pretty sharp rebuke to the Trump administration's desire to use, attempt to use the Alien Enemies Act to remove a whole lot of Venezuelans, who it claims to be members of Tren de Aragua. So, Katherine, give us a little overview of what the court did here and what the divisions on the court looked like over it.

Katherine Yon Ebright: Yeah. Thanks for having me on. In some ways this was a surprising opinion, in other ways it wasn't. But before we jump into the opinion, just wanna say a little bit about the landscape that is the Alien Enemies Act, which is the law that's being litigated here.

For our listeners at home, many of you will be familiar with this, but this law is available to restrain or detain in turn or remove or expel non-citizens from a foreign belligerent or quote, hostile nation in times of declared war or invasion or predatory incursion by a foreign nation or government.

Right, and the president invoked the alien enemies act to start rounding up and then summarily deporting Venezuelans back in March, claiming that Tren de Aragua was directed by the Maduro government in Venezuela, and also that, you know, the gang violence, the facilitation of migration that, that constituted an invasion or predatory incursion.

In the days and weeks following that proclamation, there was a drip, drip, drip of leaks and then ultimately public or unclassified, declassified reports from the intelligence community that said, the intelligence community actually has determined that Tren de Aragua is not directed by the Maduro government, and you know, is pretty small. Its presence in the U.S. is pretty small and low capacity, not even able to conduct significant amounts of migration facilitation. And so that's, that's sort of the, the lay of the land, right?

This litigation bounced up from the Northern District of Texas to the Supreme Court pretty quickly as the administration was trying to conduct some overnight deportations without sufficient process. The Supreme Court said, cut it out. Also, we want the Fifth Circuit to take the first pass at whether the Alien Enemies Act was appropriately invoked based on this supposed invasion or predatory incursion by a foreign nation or government. We secondarily want it to look at what the due process requirements are when this law is invoked and the president starts to claim that so and so is a alien enemy.

What we actually saw was a two one split in the Fifth Circuit with Judge Southwick appointed by George W. Bush writing for the majority on the question of is whatever's going on from Tren de Aragua, an invasion or predatory incursion and is therefore a nation or government involved.

There have been not only intense disputes about what conduct constitutes an invasion or a predatory incursion? What constitutes a foreign nation or government? What evidence of attribution do you have? But also, can the courts review any of this, right? Or is this too political? Is the deference that the courts owe to the president so substantial that it's going to preclude any substantive consideration of whether the facts that are alleged by the president are true? Whether those facts, if we take them to be true, actually satisfy the requirements of the law?

And so those are, that, that's the universe of things that these opinions, and there are three separate opinions. The majority dissent in part by Judge Ramirez and then a dissent from Judge Oldham. But the majority looks at the reviewability question and concludes that for the factual statements, just pure factual statements, that Tren de Aragua is here. It's operating at the behest of the Maduro government. It is conducting some amount of migration facilitation and crime violent crime, that they're going to take that at face value, that they cannot second guess the facts that are stated in the presidential proclamation from March 15 invoking the Alien Enemies Act.

What they can, however, review is the conclusions that have legal implications or legal effects that are included in that proclamation. And so when the proclamation refers to migration and narcotics trafficking, gang violence as quote, irregular warfare, when it says that they're an invasion, when it says that they're a predatory incursion, the court can review whether those facts line up. Whether in fact gang violence which they accept is, is happening at the behest of the Maduro government, is in fact an invasion as that term is used in the law.

Benjamin Wittes: Let me try to simplify this for, for people who may be perplexed by the question of what gets deference and what doesn't, if the president's proclamation saying, says, Tren de Aragua is throwing avocados at the United States, the judges can't contest, they can't say, no, it's not, they can't say that's ridiculous avocado launching doesn't happen.

But they do get to say, wait a minute, avocado launching isn't a traditional form of invasion. And so if you're trying to use, you know, you launching shoulder launched avocados as a, a, a predicate for the idea that there's a predatory incursion, we do get to hold the stated facts up against the known law.

Katherine Yon Ebright: Yes, exactly. Thank you. And the court then goes on to say, okay, well what do the terms invasion and predatory incursion actually mean? And it does a review of historical dictionaries. It does a review of contemporaneous use from the late 1700s of those terms. And it concludes across the board that those terms are referring to military action by some organized, substantial, not, not necessarily a tremendously large, but a substantial organized military armed force.

And then it says, okay, look, migration is not that kind of attack. It falls beyond what the statute is concerned with. The fact that you're saying that these are foreign terrorist organizations doesn't actually change the nature of the conduct that's being perpetrated, which is, you know, it's not avocado launching, but it is also not an armed attack by a military group.

I, I do, before we get to, well, I guess let's, let's get to the due process issue because it's, it's quite quick to wrap up. The court also said, I don't know, there's not enough facts in the record for us to say for certain how much time people need to be able to bring habeas petitions to contest, whether they are or not, members of this gang, right.

And so we wanna send it back to the district court, where the district court can look at all the facts, additional information that's not in the record, to figure out how long might someone who speaks Spanish, who maybe doesn't have any familiarity with the legal system or doesn't have a lawyer, how long do they need actually at a minimum to be able to bring this kind of challenge in habeas to say, I'm not an enemy alien. And so that's what the majority does.

We have this dissent by represent representative by representative, Judge Ramirez who says that she thinks 21 days should be the benchmark and that we don't really need this additional fact finding. It's pretty clear that seven days is insufficient. So that's, that's, you know, these two judges who are aligned on the invocation question.

I do wanna say, if you press the logic of we have to accept the factual claims that are made in the proclamation, it, it could be a little bit absurd, right? Like the president could rescind the invocation and repromulgate an invocation that says Trend Deua has killed all nine Supreme Court justices in an unequivocal act of war against the United States. And then, you know, I don't know, Justice Roberts, Chief Justice Roberts is supposed to sit there and be like, I was killed by Tren de Aragua. And that's–

Benjamin Wittes: Right, and I have to defer to that finding.

Katherine Yon Ebright: Yeah. There's that famous Mark Twain quote where he is like, reports of my death are much exaggerated. So it, it, it simply cannot be the case that there's unequivocal deference to the factual propositions. But I, I, it is just, there's not really been that much stress testing, I think, on these kinds of national security or sensitive questions of what happens when someone is just willing to make up facts. Right.

Benjamin Wittes: So Judge Oldham makes, goes further and says that the analysis should similarly be considered conclusive and that the entire history of the court's work in this, the Supreme Court's work in this area says that the really, not just the facts, but the, the contentions of the proclamation are unreviewable. And in so doing, he takes on the claims of an amicus brief by one Katherine Yon Ebright and, and Ilya Soman. So, take such time as you may require to respond to, to Judge Oldham.

Katherine Yon Ebright: I'd like to read a line that I think is really shocking given that we live in a system of checks and balances notionally and rule of law from the dissent from Judge Olden: So even if we could somehow conclude despite not knowing the president's evidence, that the odds of invasion are 0.00000%, we would contravene clear Supreme Court precedent if we were to counterman his determination.

So even if beyond a reasonable doubt, any doubt at all, zero point seven zeroes percent, that this is actually true, he would still let the president use this authority. He would say, you know, political judgment if anyone's gonna correct it, it's the Congress. And bear in mind that this law was last used in World War II to in turn 31,000 people without due process.

And so that's the kind of power that he is saying because the president invoked it, we can't second guess it. We can't avail those rights that people have under the Constitution under statutory law because this law gives complete and total discretion to the president to invoke it.

In so doing, he of course lays into the amicus brief that the Brennan Center filed with Ilya Somin, John Dehn, and the Cato Institute. It's kind of funny, Judge Oldham completely omits that anyone submitted this beyond the Brennan Center, and so sort of removes from it the bipartisan valence. But our argument is that there are, in the universe of the political question, doctrine established exceptions or ways to bypass that doctrine when in the words of Baker v. Carr, the Supreme Court case that really formalized that doctrine there's an obvious mistake or a manifestly unauthorized exercise of power. And that again, is from the Supreme Court opinion that formalized the political question doctrine.

What Judge Oldham does to say it's all unreviewable is he says that the Alien Enemies Act actually gives all of the discretion to the president. And so by its text, by its design, it's not, there's a political question. It's, this is all in the law explicitly or, or impliedly delegated to the president to decide.

I, I don't, and there's a reason that that argument didn't carry the day, and it's going down to the text of the Alien Enemies Act. It's not whenever the president decides there is an invasion, or whenever the president believes there's been a predatory incursion threatened. It is when there is a declared war, an invasion, a predatory incursion, and the president proclaims it.

So the fact precedes whatever action the president wants to take. It's not actually this grant of unreviewable discretion to the president by its text. One of the things that our amicus brief talks about is again, this political question, doctrine backstop. And he says, well, even if the political question doctrine did apply, and this wasn't the kind of unequivocal delegation of power to the president that I'm saying it is no such backstop exists. And it is just not true.

If you go through the sort of early or like prototypical Supreme Court case law, establishing the political question doctrine and, you know, some of the greats of national security and foreign relations law have done this, like Lewis Henkin, it's, it's much more of a faint-hearted doctrine than you would tend to think. Where in Luther v Borden for instance you have this language where even as the Supreme Court is saying, we're deferring, the decisions of the political branches are are conclusive they say, well, this doesn't have any relation to the kinds of things that the kings of England were doing. And therefore we're not going to review this.

You look at another sort of early political question, deference case, Duncan versus McCall. That is again, bringing one of these sort of prototypical political question doctrine cases about the Guarantee Clause. And after saying we're going to defer, the Supreme Court says, well, also Texas, which is one of the litigants here has its full possession of its faculties as a member of the union. And its legislative executive and judicial departments are peacefully operating by the orderly and settled methods prescribed by its fundamental law.

Right. And so even as they're saying the words conclusive, they're saying we're gonna defer, they are sort of setting these boundaries where if things really got off the rails, we would say that this is not a Republican government.

Benjamin Wittes: Right, if you announced the chief justice had been assassinated, the chief Justice might have something to say about that.

Katherine Yon Ebright: Yeah. I mean, if, if he is not been assassinated he probably would.

Benjamin Wittes: So, so, Roger one judge apparently in the Fifth Circuit is enough to prevent the mandate from issuing and one judge exercised that in this case, prerogative, what do we know about why the mandate has not issued in this case?

Roger Parloff: We don't know. But it sounds like at at least one judge, and it wouldn't necessarily be a judge on the panel, it could be any of the active judges is probably you know, wants a polling to see whether there should be an en banc rehearing, even though no party has yet asked for one. Maybe I, I don't know if Catherine has other thoughts. That's my, my assumption.

And that would be, that, you know, the part, the government might not even want that, that means more and more delay. Right. And while it's delayed, the Supreme Court already has in place this temporary bar on any removals from the Northern District of Texas. And, and so, and we know this is going to the Supreme Court anyway, but I think that's what's going on.

Benjamin Wittes: So Roger first and then Catherine, do we have. I, I mean, it seems to me if the administration cannot get Leslie Southwick, it augers badly for their chances at the Supreme Court. On the other hand, deference to the executive on claims of national security and foreign relations law is sort of a hallmark of where people like Brett Kavanaugh and, and John Roberts are gonna be. How do you game this out as a Supreme Court matter?

Roger Parloff: Was that to me first? Yeah, I just, you're right. Counting Republicans who have balked at approving this proclamation we found so far there's, Fernando Rodriguez, the Trump appointee in the Southern District of Texas. Judge Henderson on the D.C. Circuit. And and now Judge Southwick. So just a betting man might, might, hope you could, you could grab a, a Barrett or, or, or the chief justice.

Benjamin Wittes: You need both.

Roger Parloff: Yeah.

Benjamin Wittes: What, what about a betting woman, Catherine? I, I look at this and I say, if, if not for the lower courts and for the textual point that you made, that the delegation is not to determine whether the predatory incursion has happened, but to declare that it has, once it has happened. I would be very doubtful that you can get five justices to do what Judge Southwick did. But with those two things, I am cautiously optimistic that the Supreme Court is not going to sort of default to knee-jerk deference here. What do you, how do you game it out?

Katherine Yon Ebright: I feel pretty good about this. I've actually always felt pretty good about this going up to the justices if only because of the history of this law, how clear cut it is that this is a wartime statute. It's also, you know, not only last used to in turn 31,000 people without due process.

It's the remaining, the last remaining part of the Alien and Sedition Acts. I think Neil Gorsuch is going to have some priors about this law and the way that it's being used. He's written previously in national security context, right in state secrets doctrine case, you know, we can't pretend that we don't have eyes, judges are aware of what's happening in the world, and there will come a point at which you cannot take at face value what the administration is telling you. And that's particularly important when there are abuses at stake.

And he wrote that in a Guantanamo case, right? This is, you know, this is something where by all accounts, totally innocent people have been targeted and then sent to CECOT in El Salvador. And so I think the equities, the history, right, they're in alignment here to say that this is a pretty substantial violation.

And, and I would, I would, you know, just based on how J.G.G., the first case on the Alien Enemies Act in vocation that went up to the justices, and then A.A.R.P., which is, you know, now called W.M.M., this case. When it went up to the justices, I think the odds are pretty good. It's just a question of what is the reasoning going to look like?

And I think this is one of the questions that the justices are gonna have to grapple with. Like, is the, the facts are totally unreviewable, but we can see if the facts align with the legal standard, right? Or if the legal statements are conclusory, right? Is that an acceptable analysis when there's that possibility of gamesmanship?

And so if you're thinking for the long term, how do you, you know, find that accurate path that is going to allow the commander in chief to be the commander in chief while at the same time try to reign in or limit the potential for abuse.

Benjamin Wittes: All right.

Roger Parloff: If I, could I just add one footnote to on, on Oldham's ruling here 'cause I, I think it's relevant.

Benjamin Wittes: Yes, absolutely.

Roger Parloff: Extreme, it, it was. There is a point, and I kept reading it over and over to, to see, there must be something wrong here. But he rejects you know, the, the ruling in J.G.G., the unanimous ruling that-

Benjamin Wittes: By the Supreme Court.

Roger Parloff: By the Supreme Court, that these people are entitled to at least a hearing to prove that they're TdA and he says no. They, they, if they're Venezuelan, that's sufficient because the, the statute I, I, I is, is about aliens and, and, and, and Trump chose to narrow it. But they're still Venezuelans and, and, and, and apparently he can just accuse them of being TdA and that's sufficient. Anyway, I I don't think he's gonna have followers there.

Benjamin Wittes: All right. Although he may have future colleagues there which may have been the point. Alright let us move on to we have an update in the Abrego Garcia case. Roger, Uganda was just a head fake. What's what's going on?

Roger Parloff: There was cost Costa Rica if he, if he pleads guilty, and then there's Uganda, if he doesn't, and now the new one is maybe he would be sent back to El Salvador. This is a New York Times article, which got a portion of. A government filing in the immigration court case. And I have not gotten that document myself yet.

And so, but Abrego is trying, his lawyers are trying to reopen his immigration case to, to, to raise an asylum claim at this point. And the government argued according to the Times, Hamed Aleaziz and Alan Feur, that the government argued, should the immigration court grant, the respondent's motion to reopen DHS will pursue the respondent's removal to El Salvador? It said the earlier ruling, meaning the earlier immigration court ruling that said he was entitled to withholding of removal to El Salvador based on a credible fear of, of persecution will no longer be valid if the asylum case moves forward.

So, we, we don't, I don't know from the argument, from the article what exactly the government is saying. We do know that in other contexts, the government has been saying that ever since Marco Rubio declared MS-13 to be a foreign terrorist organization he has become ineligible, Abrego because they deem him to be an MS-13 person, he has become a terrorist and he has become ineligible for either withholding of removal or or asylum or anything else. So that could be their theory, I'm not sure, but that's all we know.

Benjamin Wittes: Gotcha. Meanwhile, Judge Chen in the Northern District of California has I think just today determined that the DHS secretary's attempt to end TPS protections for Venezuelans and Haitians nationally is pretextual and has overturned it. I'm not sure how I, I have not looked at this opinion and don't really understand how it squares with a ban on national injunctions by district judges. But what's going on with that, Roger?

Roger Parloff: Well, yes, this just happened a couple hours ago and and so, that's, that's approximately what I know too and it's a complicated area.

This is the TPS coverage for protection for Venezuelans and Haitians. And I, I do believe this is the case that the Supreme Court stayed his earlier either, either TRO or preliminary injunction. And, and in the, in the a late footnote, he says the court acknowledges the Supreme Court's order staying enforcement of the postponement order. They call it postponement of, of Krist Noem's order. However, the Supreme Court's order only concerns the preliminary relief ordered by this court in postponing agency action. The Supreme Court's order did not bar this court from adjudicating the case on the merits and entering a final judgment, issuing relief under section 706 of the APA.

So, I, I, until I read it more closely, I I, but it does look like he's he's overturning major portions of Kristi Noem’s attempts to do away with TPS for Venezuelans and Haitians.

Benjamin Wittes: And just for those of you who do, do not remember the structure of the TPS program, this is literally hundreds of thousands of people who are here both from Ven-, chiefly from three countries, Venezuela, Haiti, and Ukraine. I think it's 400,000 from Ukraine alone. And and so when you end TPS protections what you're doing is you're converting a very large number of people all at once from lawful people who were here lawfully under a program to people who are effectively illegal aliens and can be deported.

Usually there's a lag so that they can leave without, without being out of status. But you're causing really dramatic upset in, in people's lives. And, and it's, the numbers are really, really quite large. You know, you're talking about hundreds of thousands of people from each of these countries. I don't know what the exact numbers are.

Roger Parloff: It was over a million if you.

Benjamin Wittes: Yeah, when you add 'em all up, it's, yeah, it's, it's a lot of people. And one, one thing that you're, you know, if you were being cynical about it, you would say, okay, so they're not actually successfully deporting that many people. But if you declare more and more of them illegal and more and more of them leave, rather than get deported, you can thereby up your numbers of having deported or forced the departures of illegal migrant migrants.

And so it's a fairly easy way, if you don't mind the humanitarian consequences of it, which in the case of both Haiti and Venezuela and

Roger Parloff: And Afghanistan.

Benjamin Wittes: Ukraine are extreme. It's a very easy way to up your numbers of people that you've deported or caused to leave under fear of deportation. Alright Roger, let's talk about Harvard University, which won a big victory in district court this week. What do we know?

Roger Parloff: Yeah. September 3rd. And yeah, it's this is the funding case now, the, the cutoff of 2.2 billion in funds, which came on April 14th when Harvard refused to, to succumb to certain demands that had been made. Earlier that month, including April 11th, that included they were ostensibly, it had something it was supposed to do with combating antisemitism.

But the demands were included, you were supposed the university was supposed to conduct audits of, of, of the viewpoints of its faculty and, and students. And then as a, after that, hire a critical mass of faculty and admit a critical mass of students to achieve viewpoint diversity that would be more point more to the govern-, Trump, the government's liking. Not surprisingly, she Judge Burroughs, Allison Burroughs of the District of Massachusetts found that this was a First Amendment violation. She had already found basically the same thing in the other Harvard case, which is about visas based on some very similar facts. So that was not much of a surprise.

She found that the claims that of combating antisemitism were a smokescreen that they reek of pretext. But the real problem here is the that the problem challenge with any of these funding cutoff cases now, which is whether the case, whether she has jurisdiction, whether this case should have been filed in the Court of Federal Claims, which cannot really, doesn't really have the power to give perspective injunctive relief that would be meaningful to the, the university.

And when it was briefed the, the hurdle was Department of Education v. California, one of the recent sort of emergency stay rulings, cryptic rulings which did, indicate that where a majority of the Supreme Court did send a case basically or, or, or I guess felt it was likely that the case would have to go to the Court of Federal Claims. And then afterwards there's more recently there's the NIH versus APHA case, a really more e even more cryptic case.

Benjamin Wittes: Case says you have to go to two courts.

Roger Parloff: Yeah, yeah.

Benjamin Wittes: And the only justice who believes that is Amy Coney Barrett.

Roger Parloff: That's right. So, she, Judge Burroughs was able to circumvent both of those rulings distinguish them and she distinguished them by saying that both of those related, those were APA challenges, that were under arbitrary and capricious. Administrative Procedure Act challenges that were based on the theory that the agency action was arbitrary and capricious.

These are based her action, even though the cause of action is under APA, that, that gives the right to sue the, the underlying claims. One is the First Amendment, it's a constitutional claim, and the other is Title VI of the Civil Rights Act, which sort of specifically says that you can bring challenges in, in, in district courts. The Title VI is would allow the government, if Harvard really had violated the civil rights laws, Harvard could have invoked Title VI, but it would've involved going through a bunch of procedures before they could really cut off any funds.

And they, they, they didn't do any of that. When they were threatening Harvard, they claimed that they were acting under Title VI, but they never mentioned any specific violations and they never went through any of the procedures because you can't cut off $2.2 billion in funding in, in, in, with the snap of a fingers under, under Title VI. So those are her theories.

But even she sounded, she said at one point it, it may well be that these differences would not distinguish these claims in the eyes of the Supreme Court, although that remains unclear under existing case law. But this is not calvinball and there are rules. So she's she's talking about the fact that there were these previous solid precedents that have not been overruled Bowen versus Massachusetts. And she's gonna try to stick to her guns. But the thing-

Benjamin Wittes: And of course she's making a reference with calvinball to Ketanji Brown Jackson's dissent in a case the other day. The one in which Amy Coney Barrett is the only the NIH case in which Amy Coney Barrett is the only justice who will stand up for the principle that you have to sue in two courts. One for future injunctive purposes and the other to get your money.

Roger Parloff: Yeah. And, and but it's a really it's a gutsy ruling, but for that reason, it's, it's it, it, you know, given that as a First Amendment matter, this is so black and white, the fact that you can't get relief is, you know, excruciating. And and, and both of those cases, Department of Education versus California and the NIH versus APHA were came out of the District of Massachusetts and, and, and the US and the Court of Appeals for the First Circuit. So she's

Benjamin Wittes: She's trying to hold a line that may not hold.

Roger Parloff: Yeah, exactly.

Benjamin Wittes: Alright, so Scott speaking of funding, bring us home with the D.C. Circuits ruling in Climate United and then Judge Ali's ruling yesterday I believe in global health, the Global Health and AIDS cases bring us up to speed.

Scott Anderson: Sure. The D.C. Circuit ruling, this was an opinion by Judge Rao, over dissent by Judge Pillard. I believe Judge Katsas was the third judge, although now I'm doubting myself, but I'll check that on while I'm speaking.

This was a decision, a unique case that some folks may remember, where there is a fund of money the Biden administration and Congress under the Biden administration and appropriated to support various green energy projects. The way it was assigned was somewhat unusual. Instead of dispersing money directly from the Treasury instead put the whole pot of money, several billion dollars in Citibank, or at least big chunks of it in Citibank. And then Citibank was responsible for dispersing the money to the individual grantees. But the Environmental Protection Agency retained sole control under its contract with Citibank over the agreement.

So this kept, becomes relevant because of the NIH v. APHA decision that Roger mentioned earlier that Ben mentioned, where because of the weird split of the court, it essentially says, now look, you can challenge governmental action through regular district courts, but if you wanna try and get reimbursed for anything for funding, particularly if there's a grant or contractual element to it, you probably have to go through the Tucker Act.

And that's what the panel opinion determined in this case. Judge Rao said, no, you have to go to the Tucker Act is basically a contractual violation. Judge Pillard dissent really highlights the complications of this sort of form 'cause she pointed out in this case, look there actually isn't any money the government has to disperse on this. The money's already with the private party.

So what you're challenging here is the governmental action and decision to tell that private party don't pay out this money. You're not actually compelling and enforcing a contractual obligation. And Judge Pillard did, which she's done in a number of these cases, in a way that has persuaded the D.C. Circuit, at least on Bon, at least preliminarily in the Widakuswara case and a few other cases to say, look at the very first AIDS Vaccine Advocacy Coalition decision, the Supreme Court laid out where it said, hey, when we're talking about money, the government owes people for work they've already done, and that was in the process of being paid and that was stopped that can go, it doesn't need to go to the Tucker Act.

And she leaned on that heavily to try and distinguish from NI v. APHA and Department of Ed v California, the other cases where subsequently the Supreme Court has suggested no, a lot more stuff ha, does have to go through the Tucker Act.

It's an interesting case because of that split, because of this unique posture. It's not, I'm sure super relevant to other cases except maybe if this funding right to exists in other regions that I'm not aware of it, it's possible. Regardless, the court did stay the mandate pending potential petition for rehearing, something they're doing more and more often in these cases where the panel, often a conservative panel has reason to believe the en banc D.C. Circuit may well disagree with it.

So that's what we're waiting to hear now. But you know, we will actually wait and say, so, for the moment at least it's all status quo ante but we'll see if the D.C. Circuit reach a different conclusion if the, if the parties choose to pursue it there.

The other case, the more, not more significant, but a significant case is the AIDS Vaccine Advocacy Coalition case. As you may recall, this is a case where a panel opinion initially said, hey, look, there is no this all you foreign assistance recipients who are suing for alleged Appropriation Act violations because the Trump administration will not pay the money that Congress specifically appropriated for foreign assistance to anyone, not just to you, but won't even spend the money, period by September 30th, when in theory that money expires.

They had in, initially sued and the district court had issued a preliminary injunction earlier. A panel invalidated on the grounds that the Impoundment Control Act provides the exclusive remedy for addressing Appropriation Act violations. Then after the matter was appealed en banc and the en banc appeared to have reservations of it, with it.

The panel have revised its opinion and said, actually, no, we're reading Judge Ali’s preliminary injunction to be premised on the Impoundment Control Act. But in fact we are only saying that the Impoundment Control Act is an exclusive remedy for ICA, Impoundment Control Act violations. If by any chance, Judge Ali happened, there happened to be other statutory basis for these claims relied such as the 2024 Appropriation Act, which Judge Ali very clearly cited in his preliminary injunction, for the record from the outset.

But if that happened to be in play here, plaintiff should make that argument for the district court, and the district court can adjudicate it on that basis. We're not ruling that out one way or the other. And the certain judges on the D.C. en banc and while they denied rehear en banc made clear their expectation was plaintiffs would be able to pursue those claims to the district court.

That has now happened. They have secured another almost identical preliminary injunction, clarified in a few ways because if you recall, the government at various points suggested the prior preliminary injunction had prevented them from pursuing a rescissions request with Congress until it was lifted in part because it did use somewhat over broad language like you should pay out the funds appropriate by Congress for 2024.

Although, I would say, and I think Judge Ali strongly suggests that preliminary injunction never barred actually making a rescissions request if he wanted to. It may have required an amendment if you actually had to had a rescission and therefore the amount of funds being dispersed was different. But nothing actually stopped the government from making that request.

Regardless, at this point, he's very clear saying, you could pursue a rescissions request, but barring a rescission by Congress, you have to pay out this money by September 30th, or else you're violating the 2024 Appropriations Act. That is already being appealed to the D.C. Circuit where I expect we're gonna see a very, very similar set of argument. I don't know what the panel is assigned to that yet. I haven't seen a docket pop up for it. That may have changed in the last hour or two since I last checked.

But regardless, I suspect it's gonna get appealed and the en banc D.C. Circuit at least seemed much more friendlier to this as a possibility. This may provide a basis by which the Supreme Court or the D.C., en banc D.C. Circuit or the D.C. Circuit en banc. If nobody deci, if the government doesn't successfully bring it to position for cert is gonna say, no pocket rescissions. You can't actually cancel this.

But we just don't know yet. We're gonna have to wait and see, but this is what we expected and it's the next big step in this. And it's teeing up this case to go all the way back to the D.C. en banc, if not the Supreme Court, for a final resolution of this before September 30th when these funds expire, presumably, hopefully.

Alright, we have three questions in the queue. We're gonna do them quickly. Ian asks, under the legal justification as far as we understand it for ‘Boat Boom,’ could the military kill Kmar Abrego, who they, whom they alleged to be a member of MS-13, either in the u, in .U.S custody while free in Maryland or in Uganda if he's deported there?

So the question is most acute with respect to in, if he's in Uganda where the situation would be very similar to the situation as alleged here with one very big exception, which is that Uganda is a sovereign country. An attack on, an attack on the sovereign terri-, on, on Abrego Garcia in Uganda would be an attack on the sovereign territory of a foreign country. So it would raise a somewhat different set of state to state issues than merely a high seas thing would.

That said, look, it gets uncomfortably close if you're not dealing with any of the state to state questions, and that's one of the reasons that some of us find the authority here to be appallingly light. Scott, do you disagree with that?

Scott Anderson: With one aspect of it, which is that while the administration talks a lot about FTO and SCGD designation, which applies to TdA and MS-13, that makes no sense and has no legal relevance, right? I think it's very unlikely. That's the legal argument they're relying on. They have, if there, if there's any semblance between how the executive branch usually approaches this and what the Trump administration is doing, they have made a determination that TdAs engaged in certain conduct that puts it as, it makes it a non, a non-state armed group in a non international armed conflict with the United States.

That's a factual specific determination they would've to make in regards to MS-13, it's activity based, so you'd have to have a similar fact pattern. I don't know if that exists a hundred percent or if they would argue that it does or doesn't. It very well might, but-

Benjamin Wittes: Or to go back to Catherine's point from earlier. It's not clear that it's not entirely fictitious with respect to TdA as well. So, you know, one possibility is that they've made this judgment in good faith about TdA and couldn't make it about MS-13. Another possibility is that they've made it in good faith about TdA and could make the same one about MS-13.

And a third possibility is the argument wasn't made in good faith about TdA and therefore you could make the same garbage argument about anybody else you felt like it.

Katherine Yon Ebright: I mean, I think it's also-

Scott Anderson: Exactly.

Katherine Yon Ebright: -conceivable that this is an entirely conduct based attack or, or strike that we saw in the Southern Caribbean Sea where they've just decided that for whatever reason, a form of possibility now, or, or attack now is the trafficking, hemispheric trafficking of drugs by groups, certain groups that, you know, have historically done this.

And so, you know, if Abrego Garcia is in Uganda, that depending on the way that they're thinking about the national interest theory and its application here, it could be outside the scope of what they're going to say. But it's, it's not public. And so it's hard to pin down.

Benjamin Wittes: And it, you know, you're, you can't be heading toward the U.S. coast from Uganda. And so there are some important differences. And as to the rest of your question, it is a completely different question if you're in U.S. custody or in the state of Maryland.

Alright, Matt asks, regarding the protective power, could there not be a bright line rule that anytime troops leave their bases to accompany federal officers in the field, even to nominally protect them, they are engaging in law enforcement activities since they are performing tasks,  eg perimeter security, that would normally be carried out by law enforcement officers themselves and their presence is enhancing the scope and capacity of law enforcement operations.

Seems like such a test could reduce the gray area around the application of Posse Comitatus I'm gonna turn this over to Scott, but I will just say there could be such a rule, but there isn't.

Scott Anderson: I think that's generally right and this does book a general trend. There's lots of places where Congress has approved and it's generally acceptable for the military under inter-agency agreements to assist federal or state or local law enforcement. Done both in terms of like under express authorization by Congress and by other arrangements by the executive branch under broader, less specific authorities as long as they don't run up to that PCA line, which is usually much more about suffusing law enforcement activity than particularly those parts of the activities that involve violent confrontation with civilians.

So, this will be a big departure from how the military is used in ways that most people accept as legitimate and valid in the United States because it'll be constraining all that type of collaboration. It will be clear, would just be a bigger change than just reigning and abuse of the PCA. It also reign in what many people see as valid and desirable cooperation between military and law enforcement.

Benjamin Wittes: Last question from Andrew. The VOS Selection cert petition asked for the Supreme Court to expedite consideration of the merits, perhaps impossible to know, but is this one of those cases where the court is likely to do that or will we be waiting until 2026 for a decision?

I will take this one myself because I'm as capable as anybody about expressing the unknown about the Supreme Court. They can do whatever they want. They usually don't expedite things very much in non-emergency situations. But sometimes they do.

And the argument in this case for doing so is number one that the SG has asked them to do it. And often they will expedite things or they usually take cases when the SG asks them. They, and if the government represents that it has some need for an expedited resolution, they will sometimes take that seriously.

But they may also take the view that, look, if the tariffs are ruled, uncon ruled illegal, that just means the government has to pay back a bunch of money. And so it's not actually the biggest deal in the world for the government. And things are going to likely to be stayed in a fashion that you know, doesn't really cause the government great harm if it takes a while.

And so I would not be surprised to see them expedite it, but I also wouldn't be surprised to see them not expedite it. Does anybody I'm not sure how you could disagree with, I wouldn't be surprised by anything. But if anybody has anything to add to that or contradict there, feel free.

We are going to leave it there. We are on, we only ran seven minutes over today. I will accept personal congratulations on this by, by email or text. Folks, we're gonna be back next week. There's gonna be a lot of action and you know, stick with us. Keep reading and we will see you next time.

Natalie Orpett: The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad-free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter at our website, lawfaremedia.org/support. You'll also get access to special events and other content available only to our supporters.

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