@becingber
Law prof at Cardozo Law. Former U.S. State Dept a few times over. Writes on international law, war powers and national security, presidential power and bureaucracy. https://cardozo.yu.edu/directory/rebecca-ingber
Trump has gotten the message, from judges, from his own OLC, that he alone—without having to rely on actual evidence—gets to decide facts. And as long as he does so, and chooses the right magic word, that makes the operation legal — or at least unreviewable, which to him may be the same thing.
interpretating the statute's text and also applying the interpretation, then the President's fact-findings are not within our review authority. For example, Petitioners here have challenged the President's finding that the Maduro regime in Venezuela is directing the actions of TdA in this country. We interpret the Ludecke Court to have made conclusive the President's "belief" that certain categories of aliens are enemies and engaged in hostile actions. Id. at 170. Thus, even though Petitioners insist there is no basis to find the Maduro regime is directing TA's action in the United States, it is not for a court to review a President's findings about the facts when he is employing the AEA. We accept all Presidential fact-findings about what events have occurred — including who is directing them.
And consider that even judges who have pushed back on Trump’s power grabs based on wild national security claims have said they would defer entirely to his factual assertions. Here, the 5th Circuit in the Alien Enemies Act case:
＝ THE WHITE HOUSE WASHINGTON Sec. L. Rules of Conduct Guiding Federal Employees Sec. L. Rules of Conduct Guiding Federal Employees Interpretation of the Law. The President and the Attorney General, subject to the President's supervision and control, shall provide authoritative interpretations of law for the executive branch. The President and the Attorney General's opinions on questions of law are controlling on all employees in the conduct of their official duties. No employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General's opinion on a matter of law, including but not limited to the issuance of regulations, guidance, and positions advanced in litigation, unless authorized to do so by the President or in writing by the Attorney General.
Recall Trump’s exec order warning executive branch lawyers not to disagree with him on questions of law — www.whitehouse.gov/presidential...
It is no accident of language that the presidents’ lawyers do not themselves determine whether he has constitutional authority to act — in other words, whether his wars are legal. Instead, they leave that to him. The president “could decide” is the new OLC theory of war powers.
Moreover, the presidents’ lawyers have claimed that all of this is in the president’s absolute power to determine:
Or that the intelligence community has directly undercut the President’s claims:
static01.nyt.com/newsgraphics...
No matter that the President’s own lawyers appear to have seen no evidence for this claim, as evidenced by their concessions in their own legal memo justifying another war (Venezuela) — see below:
If the President claims, for example, we have been invaded—eg in the below proclamation—then that is conclusive, per the President’s legal theory. And in the AEA cases, many judges are poised to agree.
No matter that it may be self evident we have not been invaded, or suffered an armed attack
No matter that the US intelligence community may have said otherwise
In contexts from Iran to Venezuela, to boat strikes at sea to deportations without process to sending troops into U.S. cities, the President has been claiming the absolute, unreviewable authority to determine whether we are at war, have been invaded, whether there’s a threat. No matter the evidence.
This is not necessarily just off the cuff ramblings. There is something very specific happening here that relates to the legal war powers the President claims, and that his lawyers have been claiming for him.
People are rightly concerned about the idea that decisions to go to war might turn on the President’s whim, on his opinion, alone, that Iran was “going to attack.”
But —> 🧵
For the past year Trump has claimed war, not war, armed conflict, not hostilities—on the same set of facts involving the Maduro govt and Venezuela.
My analysis of the Admin’s war powers theory on Venezuela and how it conflicts with its other claims to grab power, both to deport and to kill:
Hardly the first time this Admin has played with “war” and “not war” to assert different authorities and speak to different audiences. —>
Whether it’s a “war” or “not war” depends on the audience and which term of art gives the President more power in that context — it is known.
This might be too thoughtful. Thus far it’s only a war if they’re trying to deport people without process on the theory that drug trafficking and immigration = military invasion, or summarily execute suspected drug traffickers at sea on the same theory—in which case it’s a war but not hostilities.
Speaker Johnson Says U.S. 'Not at War' With Iran By Sabrina Siddiqui HOUSTO Speaker of the House Mike Johnson ANDREW HARNIK/GETTY IMAGES House Speaker Mike Johnson denied the U.S. was engaged in a war with Iran, echoing Republican lawmakers who have sought to downplay the scale of the conflict. "We're not at war right now. We're four days into a very specific, clear mission and operation," Johnson told
War is peace. 2 + 2 = 5. Don’t believe your lying eyes.
Mandatory listening on war powers and how we got here. @tessbridgeman.bsky.social takes us on a spin through war powers history and where we are today on Trump’s war in Iran.
Book Announcement!!!
Sidewalk Nation: The Life and Law of America’s Most Overlooked Resource is available for preorder and out June 2 with @harvardpress.bsky.social!
a.co/d/0d1DwIVc
Useful quick explainer by @charliesavage.bsky.social with pithy quote to sum it all up from @becingber.bsky.social - “A state can’t backfill a justification for killing a head of state by unlawfully starting an armed conflict.”
For those who prefer their legal analysis with lots of hand gestures (and a cameo by my pup)
Thank you, Ed!
Mandatory reading; chock-full of insights
Before we dive in, a note of caution. Quite apart from the redactions, many sections of this memo are so confusingly written that it can be difficult to follow the legal analysis. The memo regularly and inexplicably threads together different bodies of law, weaving in and out of them seemingly at random. It confuses the law governing the use of force with the law governing the conduct of hostilities. It conflates concerns about criminal liability for personnel with the constitutional separation of powers. It poses hypotheticals throughout, such as "critics may say" statements that are framed as counterarguments but at places that are inapposite to the surrounding legal questions. As a result, in order to address the office's legal theories fairly, the reader must first dig deep and with real generosity to draw out the potential legal arguments from this thicket.
*caveat
On today's reading list: two new pieces by @rcls-nyu.bsky.social fellows over at @justsecurity.org.
@becingber.bsky.social on constitutional war powers: www.justsecurity.org/131538/trump...
@tessbridgeman.bsky.social on supply chain risk designations: www.justsecurity.org/132851/anthr...
Our primary insight into how the Trump Admin lawyers* war powers comes from the OLC memo they published on the Venezuela strikes and capture of Maduro.
My analysis here:
Glad to hear it!
Honored to join @strictscrutiny.bsky.social (again) to talk about the latest unlawful Trump war — and why the law is important
It's independent media collab day!
- Prof. Bec Ingber joins to explain (domestic & int'l) law of war on Iran
- Chris Geidner (Law Dork) talks legal news - including what he's broken
- Marc Elias (Democracy Docket) describes another Trump admin war - on democracy crooked.com/podcast/the-...