The Week That Was

Scott R. Anderson unpacked the legal questions surrounding the Trump administration’s Sept. 2 strike on a Venezuelan vessel allegedly carrying narcotics, which killed 11 people. Anderson suggested that the strike contravenes traditional understandings of international law and U.S. federal criminal law, with troubling implications for presidential authority under Article II of the U.S. Constitution.

On Lawfare Daily, Wittes sat down with Anderson and Professor of Law at Cardozo Law School Rebecca Ingber to discuss the U.S. strike on an alleged “drug boat” traveling from Venezuela, the president’s authority to use lethal force outside of war, and more.

Chris Mirasola unpacked a ruling by Judge Charles Breyer in the U.S. District Court for the Northern District of California, which enjoined the Department of Defense from using military personnel in California “to execute the laws” absent an invocation of a proper exception to the Posse Comitatus Act. Mirasola suggested that Breyer’s opinion, far from clarifying the legal basis for military activity in Los Angeles, rejects the government’s justifications even as it fails to offer an alternative.

On Lawfare Daily, Wittes sat down with Anderson, Anna Bower, James Pearce, Loren Voss, and Quinta Jurecic to discuss the legality of the Trump administration’s cancellation of foreign aid funding using a pocket rescission, the expanding role of the Pentagon in domestic law enforcement in D.C. and across the country, Fed. Governor Lisa Cook’s lawsuit challenging President Trump’s attempt to remove her from the Board of Governors of the Federal Reserve, and more.

On Lawfare Daily, Wittes, Anderson, Bower, and Voss sat down to discuss federal judges’ rulings blocking the removal of migrant children to Guatemala, finding Trump’s deployment of the National Guard unlawful, and striking down Trump’s tariffs on IEEPA grounds.

Bertina Kudrin and Megan Thomas surveyed the U.S. Court of Appeals for the Fifth Circuit’s preliminary injunction to halt the removal of alleged members of Tren de Aragua under President Trump’s March 14 proclamation, which invoked the Alien Enemies Act (AEA). Kudrin and Thomas provided background on the case, outlined the definitional questions at play, and broke down the court’s conclusion that the AEA’s required predicates—declared war, invasion, or predatory incursion—were not met.

On Sept. 5 at 4pm ET, Wittes sat down with Anderson, Bower, Roger Parloff, and Voss to discuss the Fifth Circuit Court of Appeals’s ruling finding that President Trump’s invocation of the Alien Enemies Act to deport alleged Venezuelan gang members was unlawful, an update on the administration’s efforts to remove migrant children to Guatemala following Judge Sooknanan's ruling in L.G.M.L. et al. v. Kristi Noem, Trump’s deployment of the National Guard in Washington, D.C. and possibly Chicago, and more.

Nick Bednar and Peyton Baker outlined the historical and legal context surrounding recent controversy over the Senior Executive Service (SES)—civil service members who occupy the top tier of federal management—following the firing of the Department of Justice’s pardon attorney. Bednar and Baker warned that the Trump administration’s application of the presidential removal power to SES employees could endanger the independence of the entire civil service.

Matt Gluck reviewed “Commander in Chief: Partisanship, Nationalism, and the Reconstruction of Congressional War Powers” by Casey Dominguez. Gluck suggested that the success of Dominguez’s argument—that Congress’s historically conceived of the president’s commander in chief authority narrowly—is undermined by her reliance on Congress’s statements over its actions in support of her thesis.

On Lawfare Daily, Molly Reynolds sat down with Zach Price, Associate Professor of Law at UC Law San Francisco, and Phil Wallach, Senior Fellow at the American Enterprise Institute, to discuss how pocket rescissions can be used to cancel previously approved Congressional funds. They talked about whether rescissions are legal, if they threaten Congress’s institutional power, and how the practice fits into the Trump’s administration’s broader strategy.

Stratos Pahis dissected the U.S. Court of Appeals for the Federal Circuit’s ruling finding that President Trump’s sweeping “Liberation Day” tariffs were unlawful. Pahis highlighted that the “overly cautious” ruling’s recognition of the International Emergency Economic Powers Act (IEEPA) to impose tariffs establishes vague boundaries and invites more tariffs in the future.

On Rational Security, Anderson, Bower, Peter E. Harrell, and Tyler McBrien talked through the week’s big national security news stories including the Trump administration’s new era of state-guided industrial policy, Indian Prime Minister Narendra Modi’s warm public embrace of Russian President Vladimir Putin, Judge Sparkle Sooknanan’s emergency hearing in which she blocked the administration’s removal of migrant children to Guatemala, and more.

On Lawfare Daily, Daniel Byman sat down with Mark Cancian, a Senior Adviser with the Center for Strategic and International Studies, to discuss the potential implications of a Chinese blockade of Taiwan and consider what steps the U.S. and Taiwan might take to prevent such a scenario.

In the latest installment of Lawfare’s Foreign Policy Essay series, Kelly A. Grieco and Maximilian K. Bremer contended that as China’s air defense capabilities grow increasingly formidable, the U.S. must move from an offense-first strategy to one of air denial—which would limit China’s air operations without necessitating U.S. control of its air space—in service of the longer-term goal of U.S. air superiority.

On Scaling Laws, Anu Bradford, Professor at Columbia Law School, and Kate Klonick, Senior Editor at Lawfare and Associate Professor at St. John's University School of Law, joined Kevin Frazier, AI Innovation and Law Fellow at the University of Texas School of Law and a Senior Editor at Lawfare, to assess the U.S. and EU’s contrasting regulatory approaches to Big Tech.

Micah Musser argued that while there has been recent emphasis on holding software developers accountable for cybersecurity flaws, the application of tort liability to these companies renders them uniquely susceptible to bankruptcy. Musser offered several potential strategies for mitigating liability overexposure for software, with particular attention to procedural mechanisms that could be used to channel claims, limit liability, or distribute damages.

J. Scott Babwah, Kevin Frazier, and Anna Vinals Musquera mapped out how the existing consumer protection landscape interacts with artificial intelligence across five critical sectors: housing, employment, financial services, insurance, and the information environment.

In the latest edition of the Seriously Risky Business cybersecurity newsletter, Tom Uren discussed Google’s recent announcement that it is creating a cyber "disruption unit" as part of a larger trend of private sector involvement in combating threat actor campaigns, the identification of three Chinese companies responsible for the Salt Typhoon cyberintrusion, ongoing developments in the dispute between Apple and the U.K. government over access to iCloud user data, and more.

And that was the week that was.