Ninety years ago, the Supreme Court unanimously held in Humphrey’s Executor that it was unlawful for President Franklin Delano Roosevelt to fire a Federal Trade Commissioner without cause. By now seeking to remove Federal Trade Commissioner Rebecca Kelly Slaughter without cause, President Trump has asked this Supreme Court to confront the exact same issue. Will the Court consider itself bound by stare decisis and long-settled congressional and executive practice? And given the reliance of Humphrey’s Executor on Framing-era history, and subsequent analysis of that history by originalist scholars, will the Court follow or depart from a commitment to originalism?

Congress created the Federal Trade Commission (FTC) in 1914 to prevent “unfair methods of competition in or affecting commerce.” See 15 U.S.C. §45. The FTC is made up of five Commissioners appointed by the president by and with the advice and consent of the Senate; no more than three of the Commissioners can be members of the same political party. Id. §41. Commissioners may be removed by the president “for inefficiency, neglect of duty, or malfeasance in office.”  Id. §41.

Without reference to this “for-cause” standard for removal, President Trump informed Commissioner Slaughter by email in March 2025 that he was removing her from her position pursuant to the president’s Article II authority. The president’s message asserted that Commissioner Slaughter’s “continued service on the FTC is inconsistent with my Administration’s priorities.”  Slaughter v. Trump, No. 25-909 at pg. 4-5. Commissioner Slaughter challenged the president’s action in court.

On July 17, 2025, the United States District Court for the District of Columbia granted Commissioner Slaughter both a declaration that the president’s actions had violated the law and an injunction preventing her removal. Id. pg. 32 and 41. The court found the president’s action “unlawful and without legal effect” because the president had not complied with the removal provisions of the FTC Act and because “[t]hose provisions remain constitutional, as they have for almost a century . . . ” Id. at pg. 31.

On Sept. 2, 2025, the United States Court of Appeals for the District of Columbia Circuit, by a two-to-one vote, denied the Administration’s motion for a stay pending appeal.  The Court of Appeals found that the Administration had no likelihood of success on the merits, given the “controlling and directly on point Supreme Court” precedent of Humphrey’s Executor. Id. at pg. 2.

On Sept. 22, 2025, the Supreme Court, in a six–to-three ruling, stayed the July 17, 2025 decision of the District Court. Treating the Administration’s application for a stay as also a petition for a writ of certiorari before judgment, the Court granted the petition and directed the parties to brief the following questions, concerning constitutionality and remedy:

“(1) Whether the statutory removal protections for members of the Federal Trade Commission violate the separation of powers and, if so, whether Humphrey’s Executor v. United States, 295 U. S. 602 (1935), should be overruled.

(2) Whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law.”

Briefs addressing these questions have now been filed by the parties and by 51 amici curiae: 16 in support of the Administration, 32 in support of Commissioner Slaughter, and 3 for neither party. Ahead of the Court’s oral argument on December 8, 2025, this “bench memorandum” provides a concise reader’s guide to the main arguments of the parties and the amici.

Donald J. Trump, President of the United States, et al.: Overview of Petitioners’ Arguments

The Petitioners in this case (hereinafter “the Administration”) urge the Supreme Court to reject the lower court’s holding that the president’s attempt to remove Commissioner Slaughter was unlawful and without legal effect.

• Separation of Powers: The Administration argues first that the FTC’s removal protections violate the separation of powers. The Vesting and Take Care Clauses of Article II of the Constitution, the Administration asserts, give the President “conclusive and preclusive” removal authority. As additional support for this proposition, the Administration cites the First Congress’s debate over the creation of a Department of Foreign Affairs — frequently referred to as “the Decision of 1789” — which the Administration claims demonstrates that the Constitution was intended to give the president sole and unlimited removal powers. The Administration also relies on Myers v. United States — a decision that predated Humphrey’s Executor — as authority for the proposition that the “power to control executive officers includes the power to remove them.” See Br. of Pet. at 9 and 16. The Court’s subsequent ruling in Humphrey’s Executor, the Administration argues, should not control here, for two reasons. First, the Administration argues that Humphrey’s Executor was wrong in 1935, but is even more so today, since the FTC of today has “executive” powers that exceed those before the Court then. Second, in any event, the Administration asserts that, “[i]f anything of Humphrey’s Executor is left,” Br. of Pet. 11, the decision should be overturned on the grounds that it was “‘egregiously wrong from the start,’” since it contradicts constitutional text, historical practice, and established removal precedent. In the modern era, the Administration further argues, the framework of Humphrey’s Executor is unworkable and inconsistent with democratic accountability.

• Judicial Power and Remedies: The Administration also argues that courts cannot prevent the removal or order the reinstatement of executive officers. It would violate Article II, the Administration asserts, for courts to enforce statutory removal limits by ordering the reinstatement of officers that the president has chosen to remove. Doing so, the Administration claims, would force a president to “entrust executive power” to an officer who he or she had determined ought not to be given executive authorities, raising separation of powers issues beyond those argued above. The Administration also looks to precedent, saying that in the past, those who challenged their firings have sought back pay, and only rarely reinstatement; the Administration acknowledges that a district court did enjoin the removal of members of the U.S. Commission on Civil Rights in 1983, but treats that case as distinguishable, asserting  that the court made that ruling because the Commission functioned as a legislative agency. Furthermore, the Administration asserts that equity has long barred courts from enjoining executive removals (or issuing declaratory judgments or utilizing mandamus to prevent the removal of executive officers), and that while the Civil Service Reform Act (CSRA) contemplates reinstatement in some circumstances, CSRA allows action only through the Merit Systems Protection Board, not district courts. In any case, the Administration argues, these judicial remedies are not available to presidential appointees like an FTC Commissioner.

Commissioner Rebecca Kelly Slaughter, et al.: Overview of Respondents’ Arguments

The Respondents (hereinafter “the Commissioner”) urge the Supreme Court to uphold the District Court’s finding that the removal was unlawful and without legal effect.

• Separation of Powers: First, the Commissioner argues that the FTC removal protections are inherently constitutional and consistent with historical practice with respect to all three branches of government. From the Founding-era, the Commissioner asserts, Congress has created multimember commissions – like the Sinking Fund Commission, the Revolutionary War Debt Commission, the Federal Reserve, and dozens more – whose members were not removable at will. The Commissioner also argues that presidents have continued to staff such bodies since the Founding-era in a way that reflects an unbroken political-branch acceptance of removal protections. The Supreme Court itself has also upheld removal protection structures, the Commissioner emphasizes, in settled case law that includes Humphrey’s Executor, Free Enterprise Fund, and Seila Law, which together establish that Congress may protect traditional multimember commissions by requiring for-cause removal without violating the separation of powers. The Commissioner further argues that the Constitution contains no textual basis to support an unchecked removal power across all areas of governance. Finally, stare decisis heavily favors retaining Humphrey’s Executor, the Commissioner claims, since overruling that case would destabilize nine decades of settled precedent (and the structuring of dozens of administrative agencies on its basis), and Congress and the president can address any problems with the FTC by exercising their various authorities to modify the agency’s structure or authorities.

• Judicial Power and Remedies: Second, the Commissioner argues that courts have the power to reinstate officials following improper removal, as shown by history and precedent. According to the Commissioner, reinstatement of officials — by way of mandamus, injunctions, and declaratory judgements — has been a remedy relied on since the Founding-era, and even beforehand in English and colonial cases. No federal statute, the Commissioner asserts —including the CSRA — has eliminated the right to such a remedy for officers like Commissioner Slaughter.

Arguments of Amici

Sixteen groups of amici –– including public-interest law firms, law professors, a Republican Senator, the Chamber of Commerce, two former Attorneys General, and nonprofit organizations –– filed briefs in support of the Administration. Thirty-two groups of amici — including former high-ranking Republican officials, bipartisan former chairs of several multimember agencies, law professors and historians, nonprofit groups, current and former members of Congress, twenty-three states, and retired federal judges –– support the Commissioner. Three amicus briefs were filed in support of neither party.

Not surprisingly, the arguments of the amici track in significant part those made by the parties.  The themes that receive more extended attention from the amici are addressed below.

• Original Meaning and Intent

○ Arguments of Amici Supporting the Administration:

• A number of amici in favor of the Administration argue that historical evidence establishes that the Constitution’s Framers intended that the president have unlimited authority to remove executive officials.

• Following the Administration’s line of argumentation, these amici point to the Decision of 1789 as having largely settled the constitutional question in favor of executive removal power. Professor Ilan Wurman contends that the Framers and subsequent generations “all generally accepted, especially after the debates of 1789, that the President had a constitutional right to remove.” Former Attorneys General Meese and Mukasey offer agreement with this proposition. Amici further argue that the Necessary and Proper Clause does not authorize Congress to condition this power. Amici Meese and Mukasey also point to further history beyond the Decision of 1789: they cite removals of executive officers by the Washington, Adams, and Jefferson presidencies, while amicus Wurman looks to letters written by Thomas Jefferson in the 1770s and 1780s.

• Amicus Landmark Legal Foundation states that the Federalist Papers and ratification debates likewise show that the Constitution was intended to create a unitary executive with full removal power. But amicus Landmark also argues that it was the Decision of 1789 that resolved these debates in the president’s favor.

• Senator Schmitt, Christian Employers Alliance, and Landmark Legal Foundation contend that the Framers understood the presidential removal power as necessary to guarantee democratic accountability. They argue that the president’s broad authority to remove executive officers ensured that officers would remain answerable to the public through their representative, the president. Going further, amicus Pacific Legal Foundation argues that at-will removals were part of the original constitutional design and crucial to the separation of powers, as they were intended to serve as an executive check on Congress.

○ Arguments of Amici Supporting the Commissioner:

• In contrast, a number of amici supporting the Commissioner argue that the Decision of 1789 was not decisive with regard to the issue presented here. They further assert that Founding-era history demonstrates an understanding that limitations could be placed on the president’s removal of officials.

• Professor Shugerman contends that the Decision of 1789 did not decide the constitutionality of statutory removal protections. Surveying the Congressional debates, he finds that “[t]he supporters of a presidential removal power did not have the votes . . . for their interpretation, and they needed to retreat to strategic ambiguity in order to enact even . . . indirect and indecisive language.” at pg. 11. He asserts that removal is at most an implied power, and that the Framers explicitly rejected the adoption of the earlier English prerogative of removal. Id. at pg. 23-25. Finally, Professor Shugerman references several removal protections enacted by the First Congress — including the Revolutionary War Debt Commission, Justices of the Peace (see Marbury v. Madison), and the Sinking Fund Commission, as well as other removal protections contemplated by the First Congress — as additional evidence as an originalist matter, that the executive removal power was never understood as absolute. Id. at pg. 15-21. Rather than assessing removal protections as an Article II limit on Congress’s authority to structure executive offices, Professor Shugerman suggests that such protections should be judged as lawful legislative exercises of the Necessary and Proper Clause of Article I.

•  Administrative Agencies

○ Arguments of Amici Supporting the Administration:

• Amici Washington Legal Foundation and Americans for Prosperity Foundation argue that the removal protections found lawful by Humphrey’s Executor have enabled an unaccountable administrative State that is inconsistent with Article II and the separation of powers.

• Likewise, amicus America’s Future (et al) contends that there has been a transfer of political power from the people to a technocratic administrative State through decisions like Humphrey’s Executor, and that this has diminished the power of the people and the president, ultimately leading to a nonresponsive government that entails a loss of liberty.

• Along the same lines, amicus Pacific Legal Foundation contends that promises of administrative efficiency have not been fulfilled, and have come at the price of liberty, while amicus Cato Institute  argues that the expansion of the power of unelected government officials implicates the preservation of liberty.

○ Arguments of Amici Supporting the Commissioner:

• In contrast, the amicus brief filed on behalf of former Senior Republican officials by some of the authors of this article notes that administrative agencies already had a long history in the United States well before Humphrey’s Executor. Far from such agencies being unaccountable, their design makes them answerable both to the president, who can remove members for cause, and to Congress, which can change their make-up — as indeed Congress has in the past, including by giving more power to the president over the FTC and by temporarily eliminating removal protections from the Federal Reserve in the 1930s. Amici assert that the current president’s efforts to assert more executive authority over removal thus undermines congressional authority and unbalances the separation of powers. As amici put it, “overturning Humphrey’s Executor would violate the separation of powers by vastly expanding executive power at Congress’s and the Court’s expense.” Amici further note that the president exercises even more power over the FTC’s activities today than he did at the time of Humphrey’s Executor, so additionally granting him an unlimited power to remove FTC commissioners would further disrupt the separation of powers.

• Amici Former Chairs of the Federal Trade Commission and 207 Members of Congress also emphasize the substantial control that the president maintains over commissions like the FTC. They further highlight, as do amici Open Markets Institute and 19 States, that the FTC was intentionally designed as a bipartisan, multimember body to ensure stability, independence, and deliberative decision-making.

• In particular, amicus American Antitrust Institute argues, Congress’s creation of the FTC reflected the congressional view that the prior antitrust enforcement regime under the Sherman Act was insufficient.

• Amicus 40 National, State, and Local Consumer, Privacy, and Open Markets Groups argue that agencies that lack this independence — such as the FAA, DOT, FSIS (Food Safety and Inspection Service), and USDA — “have too often succumbed to industry domination, leading to regulatory failures that cost lives and erode public trust.”

• Amici Administrative and Constitutional Law Professors argue that the proper legal framework for evaluating removal protections is the balancing test from Nixon v. GSA and Morrison v. Olson, which holds a statute valid unless it substantially impairs the president’s ability to carry out constitutionally assigned functions. Under these tests, the president and the unitary executive theory do not overcome the “balanced, stable, and nonpartisan approach” by Congress in providing for-cause removal restrictions.

• Ramifications of Overturning Humphrey’s Executor

○ Amici Supporting the Administration:

• Amicus Christian Employer’s Alliance argues that there are no reliance interests to justify the preservation of Humphrey’s Executor, which amicus argues is unworkable because it relies on conceptually incoherent categories of “quasi-judicial” and “quasi-legislative” functions.

• Amicus Americans for Prosperity Foundation likewise argues that invalidating removal protections here would not require the destruction of other agencies or injure third parties’ reliance on agency work. In particular, amicus argues that overturning Humphrey’s Executor would not affect the Federal Reserve, which is “sui generis.”

• Amicus Chamber of Commerce urges the Court to explicitly distinguish the Federal Reserve from the FTC, suggesting that the Sinking Fund Commission provides a basis for such a distinction and that the FTC wields executive authority, while the Federal Reserve does not.

○ Amici Supporting the Commissioner or Neither Party:

• In contrast, amici legal historians Rosenblum and Donahue argue that history has shown the workability of Humphrey’s Executor. And amicus Public Knowledge states that overruling that precedent would destabilize institutions on which both government and regulated industries have relied for generations.

• In particular, amici Professors Bednar and Phillips argue that statutory quorum requirements demonstrate congressional reliance on Humphrey’s Executor, as do amendments to the Vacancies Act that exempt independent commissions from its coverage. If the executive were able to remove independent commissioners at will, it could use the quorum and vacancy rules to disable the commissions entirely, contrary to the Take Care Clause and the will of Congress. Indeed, amici assert President Trump already has done exactly this with respect to, inter alia, the NLRB, MSPB, EEOC, USIP (U.S. Institute of Peace), TVA (Tennessee Valley Authority), U.S. African Development Foundation, and the Inter-American Foundation.

• Amicus National Whistleblower Center contends that, in light of the consequences of unchecked executive removal power on whistleblowers and the public right to transparency and accountability, overturning Humphrey’s Executor would contravene Madison’s vision of an executive removal power that reflects the “will of the community” as guided by “the benignant ray of truth.”

• The Federal Reserve: Moreover, some amici argue, the removal provisions governing the Federal Reserve and the FTC must rise or fall together. Amici former Senior Republican Officials, in a brief filed by some of the authors of this piece, note the intertwined history of the FTC and the Federal Reserve, which were created as complementary agencies to fulfill President Wilson’s “New Freedom” agenda — the Federal Reserve to regulate banks, and the FTC to regulate commerce. It therefore makes little sense to treat the constitutionality of their removal positions differently, according to these amici. They further emphasize that Humphrey’s Executor itself noted — as the then-Solicitor General implicitly acknowledged — that if the government’s position prevailed, removal protections would be unconstitutional for all offices except Article III judges.

• Nor, argues amicus Professor Shugerman, can the First and Second Banks be cited as a basis for an exception for the Federal Reserve, since they were private entities that did not exercise executive regulatory power. Thus, Professor Shugerman asserts, either the Federal Reserve removal protections are unconstitutional, or both the Federal Reserve and the FTC have a constitutional right to certain removal protections.

• Alternative Outcomes: Amicus Professor Morley, in a brief filed in support of neither party, urges that, if Humphrey’s Executor is overturned, the Court should avoid doing so in a manner that dramatically expands presidential power. He argues that Congress likely would not have delegated the same level of authority to non-independent agencies. Instead, the Court should consider ruling prospectively, enjoining certain executive functions of agencies rather than stripping their removal protections. The Court could also stay its ruling to allow Congress time to restructure agencies accordingly.

• Likewise, amici Professors of Administrative Law argue that limiting the executive powers granted to the FTC is preferable to eliminating removal its protections, given the importance of FTC independence. Removal protections for Article I tribunals, including independent commissions and other Article I courts are vital safeguards of those tribunals’ integrity.

• Severability: In a variant of this argument, amici Former EEOC Members contend for a narrow severing of only those applications of the FTC Act that are unconstitutional. Amici also suggest –– as an alternative –– invalidating removal protections as applied to only three commissioners (presumptively, the three who are members of the President’s own political party), rather than the entire Commission. Such a practice of mixed protected and unprotected officials reflects Founding-era practices, they claim.

• Other Agencies: Reflecting the wide range of concerns about the effects of overturning Humphrey’s Executor, numerous other amici argue that if that case is overruled, the Court should make clear that other agencies are not implicated. Amici Campaign Legal Center and Trevor Potter ask the Court not to rule in a way that would have implication for the FEC and EAC (U.S. Election Assistance Commission). Amici Administrative and Constitutional Law Professors argue that the Court should make explicit that any ruling concerning FTC removal protections does not extend to other multimember agencies or Article I courts (e.g. MSPB, FCC, NTSB (National Transportation Safety Board), NRC, FEC, and financial regulators), on the ground that the distinct functions and histories of these agencies support their for-cause removal regimes. Amicus Gwynn Wilcox argues that the Court should not extend its holding to the National Labor Relations Board or other agencies that have unique features affecting the constitutionality of removal protections for their heads. Bipartisan Former Commissioners of the Federal Energy Regulatory Commission (FERC) ask the Court to consider the special historical status of ratemaking commissions like the FERC. Amici American Federation of Labor and others seek to distinguish the NLRB, FLRA, and NMB (National Mediation Board) as federal labor agencies that wield no enforcement powers. Amicus Cathy Harris, in a brief in support of neither party, argues that the Merit Systems Protection Board and other legislative courts are purely adjudicatory bodies, and thus should survive, even if Humphrey’s Executor is overruled. Amici Todd Harper and Tanya Otsuka argue that the Court should engage in a functional and historical analysis specific to each particular agency.

• Judicial Power and Remedies

○ Amici Supporting the Administration:

• Amicus Christian Employer’s Alliance argues that the Commissioner had no cognizable equitable causes of action, and accordingly that the lower courts erred by reinstating her, since money damages would have been adequate. Amicus argues the courts cannot force specific performance of employment contracts or compel the President to confer his executive power on the Commissioner.

• Amicus America’s Future (et al) argues that the lower courts did not have the authority to reinstate Commissioner Slaughter either directly or indirectly.

• Amicus Professor Morley, in a brief filed in support of neither party, argues that if Humphrey’s Executor is not overruled, the Court should allow wrongfully removed officials to seek reinstatement through a writ of mandamus or quo warranto, rather than an injunction.

• Amicus Public Citizen cites longstanding authority allowing courts to bar subordinate executive officials from implementing an unlawful removal, without the courts directing the president himself.

• Amicus Maud Maron, in a brief filed in support of neither party, argues that Federal courts possess the authority to prevent removal from state and federal public offices under Section 1983 and the All Writs Act when the act of removal violates a federal right.

In sum, this case will turn on how far the Court considers itself bound by “long-settled and established” congressional and executive practice, which this Court has previously stated “‘is a consideration of great weight in a proper interpretation of constitutional provisions’ regulating the relationship between Congress and the President.” Given the reliance of Humphrey’s Executor on Framing-era history, and more recent understandings of that history unearthed by originalist scholars, this case will also test the Court’s commitment to originalism. Finally, as amici former Republican officials note, the case will test the depth of the Court’s commitment to stare decisis and judicial minimalism; amici call the Administration’s position “a profoundly anti-Burkean and anti-Madisonian step: [to] radically restructure a system by eroding constitutional checks and balances and concentrating all power—including economic power—in the President’s hands. Accepting this invitation would overrule a long line of precedents, violate separation of powers, and deal an enormous blow to the stability and freedom of our Nation.”

The post A SCOTUS Bench Memo for Trump v. Slaughter, the FTC Removal Case: Stare Decisis, Historical Practice, and Original Intent appeared first on Just Security.

Soon after taking office, President Donald Trump invoked the 1977 International Emergency Economic Powers Act (IEEPA) to impose a range of country-specific and global tariffs. These actions triggered legal challenges before lower courts, which consistently held against the president, including at the appellate level. In Learning Resources, Inc. v. Trump, the Supreme Court will decide two crucial questions:

(1) By enacting IEEPA, did Congress authorize the president to impose tariffs?

(2) If so, is that delegation of authority lawful?

Yet even before answering these two questions, a third threshold issue must be answered:

(3) Has IEEPA been lawfully triggered at all here? Has Trump lawfully unlocked IEEPA’s emergency powers by satisfying the necessary congressional prerequisites to invoke it? Or, as some amici assert, did Trump not only fail to meet those prerequisites, but also make an invocation of IEEPA that is pretextual and hence illegal for that reason as well?

Merits briefs have been filed by the parties and 44 groups of amici curiae: 37 in support of the challengers, 6 in support of the government, and 1 in support of neither (see here). Ahead of the Court’s oral argument on Nov. 5, 2025, this “bench memorandum” provides a concise reader’s guide to amici’s main arguments.

The Tariff Case Briefing: A Reader’s Guide

This case consolidates three separate challenges to the Trump Administration’s tariffs brought by Learning Resources and hand2mind, private companies including V.O.S. Selections, and several states (collectively “the challengers”). The challengers argue that Trump’s so-called “global reciprocal tariffs” and country-specific opioid “trafficking tariffs” are illegal, because IEEPA does not authorize the president to impose tariffs and cannot constitutionally delegate such power. The challengers also argue that the tariffs are invalid because the president’s justifications to impose tariffs do not meet IEEPA’s statutory requirements. The U.S. government rejects each of these arguments.

The Challenge to Trump’s Tariffs  

The challengers urge the Supreme Court to reject the Trump Administration’s use of IEEPA to impose tariffs. They recall that the framers regarded the power to tax, which includes the power to impose tariffs, as the “most important of the authorities” held by the federal government. Accordingly, the Constitution vests that power exclusively in Congress. Although the president has significant foreign affairs powers, he has no independent constitutional authority to impose tariffs or taxes, so can impose tariffs only if Congress has specifically authorized him to do so.

• Text: The challengers assert that IEEPA makes no such specific authorization to impose tariffs. The text of the statute grants the president emergency powers to “regulate…importation or exportation” to deal with an “unusual and extraordinary threat,” emerging in whole or substantial part outside of the United States. The plain meaning of “regulate” in this context does not entail a tariffing power, according to the challengers. Because “regulate” applies to both importation and exportation, it cannot imply the power to tariff, since no branch of the federal government has the power to impose tariffs on exports. The judiciary requires Congress to speak clearly when delegating major authority to the Executive, and Congress has never delegated tariffing or taxing powers through these words.

• Legislative History: IEEPA’s legislative history also shows, the challengers argue, that Congress did not authorize the president to impose tariffs through that statute. When Congress was reforming its emergency legislation, including IEEPA, it adopted other statutes that explicitly delegated to the president limited authority to impose tariffs. They made no such provisions in IEEPA. In the 69 times that presidents have invoked IEEPA since its passage in 1977, none until Trump has attempted to use the statute to place tariffs on other nations.

• Nondelegation and Major Questions Doctrines: The challengers additionally argue that if the Court construed IEEPA’s authority to “regulate” as the power to tariff, such an interpretation would raise serious major questions and nondelegation concerns. The challengers contend that Congress has not clearly delegated the unprecedented and highly significant authority claimed by the government, raising issues under the major questions doctrine (which says that Congress must clearly authorize delegations of major economic and political significance). Additionally, the challengers submit, accepting the government’s interpretation would mean that Congress had granted the president virtually limitless authority to remake the national economy without any congressional limiting guidance or instruction — essentially usurping Congress’s full legislative power to tax, thereby raising significant nondelegation doctrine concerns.

• IEEPA Not Lawfully Triggered: Finally, the challengers address the third, threshold argument identified above: that even if IEEPA lawfully authorized the imposition of tariffs, Trump did not properly invoke it: i.e., he did not comply with the prerequisites of IEEPA that are legally required to access that statutory power. IEEPA mandates that to invoke emergency powers, the president must declare an emergency with respect to an “unusual and extraordinary” threat and can take emergency action only to “deal with” that specific threat. But here, the challengers argue, the U.S. trade deficit — the claimed emergency that the president invokes to impose the global reciprocal tariffs — is neither unusual nor extraordinary, but instead, a long-standing and persistent condition. Additionally, tariffs do not “deal with” opioid trafficking and thus fall beyond the statute’s scope.

The Government’s Response  

With respect to each claim, the government asserts the opposite:

• Text: IEEPA’s language, according to the government — specifically the power to “regulate…importation”— authorizes Trump’s tariffs. The government argues that “regulate” has a broad meaning and, when paired with “importation,” encompasses the authority to impose tariffs. The government concedes that the tariffs do not directly combat drug trafficking, but it contends that the tariffs do “deal with” the declared emergencies as intended by the broad language in the statute, because they provide the president “leverage” against other countries.

• Legislative History and Precedent: To support its claim, the government points to U.S. v. Yoshida Int’l, where the Court of Customs and Patent Appeals interpreted language permitting the president to “regulate importation” in IEEPA’s predecessor statute, the Trading With the Enemies Act (TWEA), to authorize tariffs imposed by then-President Nixon. Additionally, the government argues that the other delegated powers in IEEPA suggest a broad grant of authority, rather than one that excludes the power to tariff.

• Nondelegation and Major Questions Doctrines Inapplicable: The government dismisses any concerns under either the major questions doctrine or the nondelegation doctrine. As to the major questions doctrine, the government points to factors such as what it describes as the unambiguous nature of IEEPA’s language, as well as the fact that the statute delegates the authority at issue to the president directly in order to address emergencies (thus arguing that Congress intentionally used broad language to delegate broad powers). The government also asserts that IEEPA incorporates sufficiently clear policy articulations as well as limits to avoid nondelegation doctrine concerns. In any event, the government also claims that neither doctrine applies in the foreign affairs context, and that tariffs are a foreign affairs issue.

• Legislative Context: Responding to the challengers’ other arguments, the government asserts that other trade statutes that more explicitly delegate the power to impose tariffs should not cabin the Court’s interpretation of IEEPA. The Court should treat IEEPA as a separate source of authority that allows tariffs in different contexts.

• Against Judicial Review of IEEPA Triggering: The government argues against judicial review, especially of the question whether the emergencies constitute unusual and extraordinary threats. It alleges that allowing courts to review presidential determinations of emergencies amounts to second-guessing the president’s foreign policy judgments. The government asserts that IEEPA does not require the president to justify his determinations and only mandates reporting to Congress, and thus only the legislative, and not the judicial, branch can check presidential emergency powers.

Arguments of Amici Supporting the Government or Not Taking a Position

Seven groups of amici — consisting of two U.S. Representatives and several advocacy organizations and legal scholars and professors — filed briefs in support of the administration or neither party. Because these amici’s arguments largely track the government’s arguments urging the Supreme Court to uphold the levied tariffs, it is primarily new arguments that are described here.

• Political Question Doctrine: Amici Representatives Darrell Issa and Brian Mast contend that both the Constitution and historical precedent appoint the president as the “sole organ” of the federal government in foreign affairs. Amici American Center for Law and Justice argues that presidential emergency determinations constitute nonjusticiable political questions: “quintessentially executive judgment[s]” committed entirely to the political branches. Determining whether an unusual and extraordinary threat exists to trigger IEEPA requires, they assert, assessments of complex geopolitical considerations, classified intelligence, and predictive decision-making that courts lack the expertise and institutional capacity competently to review. These amici further argue that any judicial review of presidential emergency declarations would violate separation of powers by second-guessing the president’s foreign affairs decisions. The statutory design of IEEPA and the National Emergencies Act (NEA) support this notion, S. Reps. Issa and Mast assert, because those statutes establish processes for presidential or congressional termination of, not judicial oversight of, national emergencies.

• IEEPA Authorizes Presidential Tariffs: Amici supporting the government offer varied claims to support the interpretation that IEEPA’s delegation to the president of the power to “regulate…importation” includes the power to impose tariffs. Amici Jill Homan and the nonprofit America’s Future argue that the Court should construe the terms to authorize tariffs because tariffs have been used throughout U.S. history to regulate commerce. Representatives Issa and Mast, like Professor Aditya Bamzai (who supports neither party), point to previous instances where the Court interpreted “regulate” in other statutes to include a power to tax. Additionally, amici suggest that because the other delegated powers in IEEPA are broad, “regulate…importation” should be read broadly to include the power to impose tariffs. The American Center for Law and Justice suggests that congressional acquiescence confirms this broad reading (Authors’ Note: since these amicus briefs were filed, the Senate has voted to end the emergencies the president declared to impose global tariffs and country-specific tariffs on Canada).

• Legislative History and Context: Supporting neither party, Professor Aditya Bamzai points to IEEPA’s legislative history and its relationship to TWEA, because in the Yoshida case, a lower court interpreted TWEA to delegate to the president the power to impose tariffs. Thus, notwithstanding Congress’s intent by adopting IEEPA to cabin TWEA’s emergency powers, Bamzai claims, because Congress copied TWEA’s previously interpreted language into IEEPA and did not formally deny the power to tariff, Congress implicitly delegated the power to tariff. Amicus Bamzai expressly acknowledges, however, that the power to tariff implicates the power to tax. In the alternative, America First Policy Institute argues that even if the Court finds IEEPA does not authorize Trump’s tariffs, it could nevertheless uphold them under Section 338 of the Trade Act of 1930 — even though the president has not invoked this provision. Amici  Jill Homan and Representatives Issa and Mast add that because tariffs are not necessarily taxes, construing IEEPA to authorize tariffs does not necessarily intrude upon Congress’s exclusive constitutional authority to impose taxes (see further related arguments from amicus Chad Squitieri here).

• Inapplicability of Nondelegation and Major Questions Doctrine:The American Center for Law and Justice contends that the concerns raised by the nondelegation and major questions doctrines should not apply here because foreign affairs and national security are at issue. Alternatively, Representatives Issa and Mast contend the statute would satisfy existing nondelegation requirements since IEEPA incorporates specific preconditions for presidential action.

Arguments of Amici Supporting the Challengers

The overwhelming majority of the amicus briefs filed — thirty-seven groups of amici ranging from bipartisan coalitions of Members of Congress to economists and national security officials to former federal judges to farmers and businesses — support the challengers in  urging the Supreme Court to invalidate Trump’s IEEPA tariffs.

IEEPA Does Not Authorize Tariffs: In support of the challengers, most amici assert that, based on its statutory text and background, IEEPA does not authorize the president to impose tariffs. These arguments are based on:

• Text: The statute lacks terms Congress typically uses to permit tariffs (“duties,” “imposts,” “tariffs”), and its authorization to “regulate” “importation” does not include revenue-raising authority. The Washington Legal Foundation says it “strains credulity” to read “regulate … importation” as conferring the power to tariff when the two words are far apart in the statute and surrounded by other non-tariff delegated powers.

• Original Meaning of the Constitution: Amici George Allen et al. (including Koh, one of the co-authors of this blogpost) reject the government’s contention that foreign affairs and national security considerations create an “escape hatch” or carveout that permits otherwise impermissible delegations. Any such non-rigorous nondelegation standard for national security or foreign affairs should not, in any event, apply here because, from the founding, Article I vests Congress with the exclusive power to levy taxes and duties and the power to tariff. Under the original meaning of the Constitution, the president, by contrast, had no tariff or commerce authority.

• Legislative Intent: Amici Vikram Amar and Mickey Edwards contend that Congress intended IEEPA to constrain, not expand, presidential emergency economic powers. Congress enacted IEEPA and the NEA, which gives the president the power to declare national emergencies subject to specific oversight requirements—to rein in, not expand, presidential powers. After decades of presidential overreach during continuous states of emergency, the NEA restored congressional control over the irresponsible declaration of national emergencies, while IEEPA restricted the President’s use of emergency powers to situations that meet a narrow statutory threshold. Thus, as amici former national security officials argue, the NEA and IEEPA exude distrust of, not deference to, presidential invocations of emergencies.

• Past Legislative Practice: Where Congress has intended to authorize tariffs, it has enacted detailed trade statutes with express language imposing carefully calibrated limits on presidential tariff authority. The absence of such clear statutory language permitting tariffs in IEEPA means it cannot be read to override decades of trade legislation. In addition, amici California, Constitutional Accountability Center and Professors of Foreign Relations Law dismiss the assertion based on the Yoshida case that IEEPA’s incorporation of language from a predecessor statute, TWEA, indicates that IEEPA permits tariffs, since the Yoshida court had ruled that TWEA conferred tariff authority. The CATO Institute notes that for nearly 50 years until now, no president ever interpreted IEEPA to authorize tariffs—a “telling signal” that Congress never intended to delegate that power to the Executive

• Disruption of the Legislative Landscape: Amici George Allen et al. contend that the president’s IEEPA tariffs ignore and override Congress’s statutory schemes for trade and tariffs. The political branches have established a U.S. trade and tariff policy centered on principles of equal treatment and most-favored-nation status through statutes and treaties. By attempting to use IEEPA, they argue, the president seeks to sidestep Congress’s carefully created statutory limits and procedures, undermining longstanding U.S. trade policy.

• Major Questions and Nondelegation Doctrine: Amicus NYU Law Institute for Policy Integrity asserts that there is no foreign affairs or national security exception that negates the requirement that Congress must clearly authorize such a significant delegated power. Interpreting IEEPA to allow tariffs would transfer Congress’s taxing power to the Executive when Congress made no express authorization. Professors of Administrative Law argue that even if IEEPA expressly authorized the president to impose tariffs, such an open-ended delegation of legislative authority to the executive branch would violate the separation of powers. Consumer Watchdog adds that IEEPA provides no guiding “intelligible principle” defining the duration, rate, amount, or scope of any such tariffs, nor does it establish substantive guardrails to constrain the president’s discretion. Construing IEEPA broadly would thus grant the president unbounded tariff power that would swallow Congress’s exclusive authority.

Arguments of Pro-Challenger Amici regarding “Pretextual Emergencies”

The Claimed “Emergencies” Are Reviewable

Rejecting the government’s and a few pro-government amici’s arguments that various justiciability doctrines bar the Court from inquiring into the validity of emergencies, several amici—including a group of 31 former federal judges—assert that the Court can and must review whether the president has met the statutory requirements imposed by the NEA and IEEPA to invoke emergency powers.

The President Did Not Meet IEEPA’s Statutory Requirements

Several amici argue that the president did not meet IEEPA’s statutory requirements.

• No Unusual or Extraordinary Threat: First, amici argue that the president’s declared emergencies are not unusual or extraordinary threats. For instance, economists and former government officials assert that trade deficits do not qualify as unusual and extraordinary threats under IEEPA because they are long-standing and persistent, and in any event do not pose a “threat” within the meaning of IEEPA. In fact, Congress gave the president the power to address trade deficits through a separate, non-emergency statute: the Trade Act of 1974. Second, former national security officials contend that, as a similarly long-standing problem, fentanyl trafficking is not an unusual and extraordinary threat under IEEPA. The government’s own data show the tariffed countries were already addressing these issues, and Congress spoke to the narcotics problem through other statutes. Third, even if the threats were legitimate, amici Scott Lincicome et al. assert that tariffs “deal with” neither the trade deficit nor fentanyl trafficking, as IEEPA requires.

The President Has a Constitutional Duty to Make Bona Fide, Non-Pretextual Emergency Declarations

Two briefs — one filed on behalf of Peter Sage and one filed on behalf of former senior U.S. government officials John Bellinger et al. by Susman Godfrey and the Peter Gruber Rule of Law Clinic at Yale Law School (including some of the authors of this Reader’s Guide) — argue that both the trade deficit and fentanyl trafficking emergencies are pretextual, and hence illegal.

• The President Has an Affirmative, Constitutional Duty to Faithfully Execute the Laws: This responsibility requires the president “to be honest and engage in reasonable inquiry in finding facts that serve as predicates for exercises of power.” When a statute requires executive fact-finding to access its authorities, the president must execute fact-finding faithfully, not pretextually. As Justice Cardozo warned, in “default of such fulfilment, there is in truth no delegation, and hence no official action.” Accordingly, the president cannot use pretextual bases to exercise executive authority.

• No Presumption of Regularity: While the Courts generally presume that the Executive acts with procedural regularity and for bona fide, non-pretextual reasons, this presumption is not iron-clad. Where there is “clear evidence” that officials have not properly discharged their duties, such as by acting pretextually, courts may inquire into the Executive’s stated rationale.

• The President’s Invocations of IEEPA Are Pretextual: When adopting the NEA and IEEPA, Congress intended the statutes to impose “carefully constructed legal safeguards” that would ensure the president exercises emergency economic powers “only when emergencies actually exist.” Accordingly, to wield IEEPA’s emergency economic powers, the president must declare a national emergency under the NEA with respect to a genuine threat that is unusual and extraordinary. In this case, however, amici argue, the president’s invocation of IEEPA “cannot be adequately explained in terms of” the president’s declared threats: trade deficits and fentanyl trafficking. Rather, amici contend the president’s stated rationales are pretextual for the following reasons:

• Trade Deficit Tariffs: Objective facts and the Administration’s own actions, amici assert, suggest the president imposed “reciprocal” tariffs for a purpose other than responding to the alleged trade deficit “emergency.” First, the tariffs were not “reciprocal.” In fact, the president’s actions under IEEPA generally set tariffs at rates much higher than those imposed on U.S. goods. Second, the Executive provided shifting justifications for the “reciprocal” tariffs, including raising revenue. Third, the president almost immediately suspended, except as to China, imposition of these tariffs following a negative stock market reaction and emphasized the necessity of “flexibility,” which belies any argument that the trade deficit is truly an “emergency” requiring immediate action. Finally, after an additional extension, the president stated that he subjected some trading partners to tariffs even if they proposed terms that addressed trade imbalances but still “failed to align sufficiently with the United States on economic and national-security matters.”

• Trafficking Tariffs: The trafficking tariffs are similarly pretextual, amici argue. The Administration’s own assessments contradict the suggestion that the opioid threat is increasing, and that the three countries targeted—Canada, China, and Mexico—are not taking steps to address this issue. Earlier this year, the Drug Enforcement Administration reported that it has found numerous indicators that “the Government of China is controlling more fentanyl precursors to comply with recent updates to the United Nations counternarcotics treaty”—so much so that Mexican cartels are experiencing difficulties in sourcing fentanyl precursors from China. Likewise, U.S. Customs and Border Protection statistics show that 80 percent of all individuals arrested bringing fentanyl into the United States across the southwest border are not Canadian, Chinese, or Mexican nationals, but rather U.S. citizens. The claim that Canada is a major source of fentanyl is particularly disingenuous, amici note: the U.S. government’s own statistics show only 0.2 percent of the fentanyl arriving at the U.S. border came from Canada in 2024.

• True Motivation is Trade Policy: Moreover, amici assert that the public record demonstrates that other priorities—especially trade policy—motivated the president’s fentanyl tariffs. In describing why these countries’ supposed “failure to act” regarding fentanyl had become a national emergency under IEEPA, the president cited not the unusual threat of fentanyl, but his own announced “America First Trade Policy.” Just weeks after imposing these tariffs, the president declared, “Tariffs are about making America rich again.” He also used the tariffs to remove congressionally created de minimis exemptions for Chinese goods, a longstanding trade priority for the Administration. The president similarly emphasized that the main reason for the tariffs is not Canada or Mexico’s alleged role in the fentanyl trade but rather trade deficits and barriers, as well as the countries’ overall relationships with the United States.

• Separation of Powers: Amici argue that accepting the president’s invocation of IEEPA based on trade deficit and opioid threats that are usual and ordinary, or that are pretextual, would dangerously disrupt the constitutional balance between the legislative and executive branches by removing meaningful congressional restraints on delegated powers.

• Government by Emergency Will Breed More Emergencies: Finally, amici recall Justice Robert Jackson’s warning in Youngstown that accepting pretextual emergencies would provide a ready tool to usurp the constitutional balance of powers: “We may also suspect that [the Framers] suspected that emergency powers would tend to kindle emergencies.” Or as Justice Neil Gorsuch recently warned in Arizona v. Mayorkas, “one can hope that the Judiciary will not soon again allow itself to be part of the problem by permitting . . . rule by indefinite emergency edict[,] [which] risks leaving all of us with a shell of a democracy.”

The post A SCOTUS Bench Memo for the Trump Tariff Case: Separation of Powers, Delegation, Emergencies, and Pretext appeared first on Just Security.

Justice Kavanaugh Invites APA Review

In a 6-3 decision, Justice Amy Coney Barrett, writing for the majority, ruled that under the Judiciary Act of 1789, federal courts lack the authority to issue universal injunctions unless necessary to grant “complete relief to the plaintiffs before the court.” Accordingly, the Court granted a partial stay of three nationwide preliminary injunctions prohibiting enforcement of President Trump’s egregiously unconstitutional Executive Order No. 14160, which purports to abrogate birthright citizenship. At first blush, that decision would appear to exempt from protection individuals and entities who are subject to the lawless federal action if they are not plaintiffs in the relevant litigation.

Justice Sotomayor’s dissent argues that

The majority holds that, absent cumbersome class-action litigation, courts cannot completely enjoin even such plainly unlawful policies unless doing so is necessary to afford the formal parties complete relief.  That holding renders constitutional guarantees meaningful in name only for any individuals who are not parties to a lawsuit.

In response, Justice Brett Kavanaugh’s concurrence asserts that claim is overbroad and argues that plaintiffs broadly affected by unconstitutional executive action may

under Federal Rule of Civil Procedure 23(b)(2) . . . ask a court to award preliminary classwide relief that may, for example, be statewide, regionwide, or even nationwide.

But also buried in his concurrence is a more direct—and less costly and time-consuming—alternative to seeking class action certification. Justice Kavanaugh essentially now guides every plaintiff currently suing to challenge unconstitutional executive action as follows: “in cases under the Administrative Procedure Act, plaintiffs may ask a court to preliminarily ‘set aside’ a new agency rule.  5 U. S. C. §706(2); see, e.g., West Virginia v. EPA, 577 U. S. 1126 (2016).”  Footnote 10 of the majority’s opinion cites the same provision, but does not challenge Justice Kavanaugh’s view, instead noting that “[n]othing we say today resolves the distinct question whether the Administrative Procedure Act authorizes federal courts to vacate federal agency action.” Thus, for plaintiffs challenging this administration’s executive actions, CASA suggests that the APA may provide the way forward.

The APA Requires Universal Vacaturs of Unlawful Agency Action

Section 706(2) of the Administrative Procedure Act (APA) provides that a “reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions . . . not in accordance with law.” Simply put, once a federal court holds an agency action unconstitutional, even if only as applied against a particular plaintiff, that agency action may be set aside—i.e. universally vacated—and would have no legal force or effect, even against nonparties to the suit and without the need for class certification. In the Supreme Court’s DACA decision, “affected individuals and third parties” challenged the Acting Secretary of Homeland Security’s rescission of the Deferred Action for Childhood Arrivals (DACA) program as a violation of the APA. In a decision by Chief Justice Roberts, the Court majority concluded that the executive actions violated the APA and so “must be vacated.”

As Justice Kavanaugh put it in his earlier concurring opinion in Corner Post Inc. v. Board of Governors of the Federal Reserve System, “[w]hen a federal court concludes that an agency … order is unlawful, the court must vacate that order. . . . Vacatur is therefore essential to fulfill the ‘basic presumption of judicial review’ for parties who have been ‘adversely affected or aggrieved’ by federal agency action.” (emphasis added). Justices Ginsburg and Sotomayor similarly endorsed the notion that the Administrative Procedure Act contemplates nationwide relief from invalid agency action in Little Sisters of the Poor v. Pennsylvania. The effect of APA set-aside is that the target executive action is deprived of conclusive effect for all, not just the immediate parties.

Academic commentators such as Mila Sohoni and Ronald Levin have explained why, in cases challenging executive action (in Levin’s words), “the courts’ ability to order the nullification of rules on an across-the-board basis is, in many instances, a practical necessity.” In a recent working paper focused on the state-law influence on federal administrative law remedies, one of us has offered historical evidence on the original meaning of the “set aside” language in state law. Before being introduced into federal law at the start of the twentieth century, the term “set aside” had been used for decades in state legislation to describe judicial review and vacatur of unlawful executive action. Just as “setting aside” a lower court judgment rendered that judgment “entirely destroyed,” “setting aside” an administrative determination nullified the action as a whole. When Congress lifted the “set aside” term into federal law with the Hepburn Act in 1906, it was explicitly drawing on this state-law understanding of “set aside.” Once “set aside” entered the legislative vocabulary, it spread quickly: first to the Urgent Deficiencies Act of 1913, and then from there to other federal statutes, and ultimately into § 706(2) of the APA.

Plaintiffs Should Seek APA Review and Vacatur of Agency Action Under This and Other Unconstitutional Executive Orders

This APA remedy provides a roadmap that current and future plaintiffs challenging Trump’s unconstitutional executive actions could and should take, even while also filing motions for class action certification before their trial courts. If individual plaintiffs add to their complaints prayers for relief to set aside unconstitutional executive action, those prayers, if granted, can and should provide the practical equivalent of the universal injunctions that the CASA Court refused to authorize.

The CASA Court’s ruling left thirty days before its partial stays would take effect. While those thirty days are transpiring, Trump Administration officials will need to take a series of steps to implement Section 3 of the birthright citizenship executive order, which authorizes and directs a series of agency actions. Once those agency heads take the necessary final actions to implement the executive order, the current plaintiffs can file APA actions under § 706(2) in federal district court to set those actions aside on a nationwide basis as “not in accordance with law.”

Trump’s lawyers will presumably offer three responses, all of which lack merit. First, they will likely argue that the President’s executive order is not subject to judicial review under the APA per the Supreme Court’s decision in Franklin v. Massachusetts. But this reads Franklin too broadly. As the Ninth Circuit explained in Nebraska v. Su, Franklin notwithstanding, agency action implementing an executive order is reviewable under the APA: “extend[ing] Franklin to cover final agency actions that adopt policy decisions issued by the President in executive orders . . . contradicts the text of the APA.” The D.C. Circuit endorsed the same approach in Chamber of Commerce v. Reich when considering regulations promulgated by the Secretary of Labor: “that [an agency] regulations are based on the President’s Executive Order hardly seems to insulate them from judicial review under the APA, even if the validity of the Order were thereby drawn into question.”

Prior cases involving citizenship confirm this point. In Department of Commerce v. NY, the Court invoked the APA to strike down the addition of a citizenship question to the 2020 Census questionnaire. The Court vacated the Secretary of Commerce’s action carrying out a presidential directive, relying on the federal birthright citizenship statute, 8 U. S. C. §1401(a),  which provides that “a person born in the United States, and subject to the jurisdiction thereof,” shall be a “national[] and citizen[] of the United States at birth. The Court recognized that while a statute may confer broad authority on agency officials, that does not give the official unbounded discretion to take actions clearly inconsistent with the statute’s text and purpose. As in Department of Commerce, once the agency acts to implement the executive order, an APA challenge can be brought. This is particularly warranted here, where the Trump executive order’s rejection of birthright citizenship marks a total reversal of executive interpretation from the one long taken by the Justice Department’s Office of Legal Counsel.

Second, Trump’s lawyers may assert that agency action implementing the President’s executive order is unreviewable under the APA because it does not constitute final agency action. As the Supreme Court explained in Army Corps of Engineers v. Hawkes, agency action is “final” where it represents a consummation of the agency’s decision-making process, determines rights and obligations with legal consequences, and there exists no other adequate remedy. When, under section 3 of the Executive Order, agency heads take steps to ensure that their regulations comply with the Order and issue public “guidance” on the Order’s implementation, agency action will undeniably be “final” under the Hawkes rationale. But at a minimum, once this guidance is enforced, the Court’s decision in Bennett v. Spear dictates that the agency action will be sufficiently final, as “one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’”

Third, Trump officials may claim that the issue is not yet “ripe” for APA review. But as the Court explained in Abbott Labs, ripeness analysis considers the fitness of the issues for review and the hardship to the parties from withholding judicial consideration. Again, at the latest, once agencies begin to enforce the guidance they issue under section 3 of the Order, under any fair application of the Abbott test, the ripeness hurdle will certainly be met.

Seizing the APA Alternative Now, in This and Other Cases

In the Birthright Citizenship cases and others challenging unlawful executive actions, CASA’s message to plaintiffs should be clear: pursue the path that the APA opens. Plaintiffs challenging unconstitutional executive actions should not rely solely on seeking class certification.  When the administration takes executive action that appears to be unconstitutional or ultra vires, plaintiffs should add APA § 706(2) and ultra vires counts to their complaint, requesting that the challenged action be set aside as “not in accordance with law.” Second, when executive officials publish conforming enforcement documents and take other actions to implement the illegal Order, plaintiffs should file new APA set-aside cases in district court to vacate those actions.  They should argue in all pleadings that history and precedent require that those prayers for relief, if granted, require the universal vacatur of the agency actions ordering compliance with the unconstitutional executive order, whether or not a plaintiff class has been certified.

In sum, adding and securing prayers for APA relief to set aside unconstitutional executive action can constitute a universal, well-grounded alternative to the kind of universal injunction whose issuance has now been gravely restricted by the Supreme Court’s unfortunate CASA decision.

The post After CASA: The Administrative Procedure Act Option for Challenging the Birthright Citizenship and Other Illegal Executive Actions appeared first on Just Security.

These basic questions remain unanswered, raising two key questions. First, are these agreements legally enforceable? Second, if not, what principled reasons do the firms have for keeping their part of these bargains?

Are the Law Firm “Deals” Enforceable Contracts?

On the first day of Contracts, every law student learns that a contract requires a meeting of the minds. But a growing body of evidence suggests that the firms and the President hold very different and conflicting understandings of what the deals require. Trump continues touting the fact that he “ha[s] a lot of legal fees” at his disposal and that he “might as well use them.” He and his subordinates have floated such varied possibilities as having the firms negotiate trade deals, draft coal leasing agreements, and represent him personally. As several internal statements make clear, the firms clearly did not see indentured servitude or ceding government control of their pro bono commitments to be part of the deal. The contract-law requirement of “definiteness” is well settled: if the parties are so far apart on the key term of the deal, was there really any meaningful agreement at all?

Second, a contract without consideration is unenforceable—something the law calls an “illusory promise.” Consideration requires each party to surrender something of value or a legal right they otherwise possess. But if the president retains full discretion to re-issue executive orders or again direct EEOC investigations at any time—even if capitulating firms follow their agreements to a T—then the president has surrendered no legal rights or powers. His tweeted “promise” not to target a capitulating firm is worth nothing. It is merely a statement of present intention, not a binding commitment that limits his future actions.

Further questions arise under the doctrines of unconscionability and duress. No one is bound by a “contract” made with a gun to their head. The law firms who struck deals believed that being targeted by a punitive executive order would cause an “existential crisis” and a “death spiral,” leaving them no reasonable alternative but to capitulate. But if that were true, those firms need not abide by the deals. If the president’s wrongful conduct indeed left them no reasonable alternative, they could challenge the enforceability of those deals as illegal products of both procedural and substantive unconscionability or even duress.

Finally, the illegality of the punitive Executive Orders opens the door to a challenge on public policy grounds. Courts are not timid in voiding contracts contrary to “public policy of the United States as manifested in the Constitution.” In the words of Judge Loren L. AliKhan, “The Framers of our Constitution would see [the Executive Orders targeting law firms] as a shocking abuse of power.” The four law firms that challenged the punitive Executive Orders quickly won temporary restraining orders blocking the Orders from taking effect. The tenor of subsequent court hearings suggest that the challenging firms are now steadily moving toward securing permanent injunctions. As the briefs supporting plaintiffs argued in those cases (Perkins, Jenner, Wilmer, Susman)—and as we argued in a prior essay—the executive orders violate not just the First, Fifth, and Sixth Amendments, but also exceed lawful presidential authority, violate the separation of powers, and constitute unlawful bills of attainder that no president has the power to issue. No court would have approved deals coerced by these illegal executive orders as consent decrees, subsequently monitored by judicial oversight. These blatant constitutional defects, both in the original Executive Orders and any new orders the administration might issue against “breaching firms,” suggest that these deals may also be voided as offensive to public policy.

A Second Chance to Do the Right Thing

If the supposed contracts are unenforceable, what follows?

First and most obviously, no new firm should enter into an illusory contract. The core of what a law firm does is to hire its own lawyers, choose its own clients, and handle its own cases according to its own professional judgment. These “deals” surrender a law firm’s professional independence and invade its autonomy, while imposing no meaningful limit on the President’s authority. Any firm approached by the Administration should join the ranks of those firms who are suing, as that is the only way to achieve principled and legal certainty.

Second, for the reasons above, “settling” firms now have a second chance to reassert their independence. They can and should assert that those “agreements” are not enforceable. It is not enough to say vaguely, as a number of the firms have, that they continue to “stand by their values.” Instead, the firms should take specific, concrete actions that make clear that they still choose their own clients and cases. If, for example, a settling firm’s pro bono committee finds it consistent with the firm’s values to represent a military veteran seeking gender-affirming surgery, then the firm’s lawyers should urge it to take such a case. Such actions would confirm that the law firm, and not the government, is its own boss, and remains in charge of its pro bono docket.

Third, the “settling” firms should consider the potential costs of continuing to do the Administration’s bidding. The settling firms will find no safe harbor if they continue to carry out “their part of the bargain.” What began as coercion could become complicity if these firms, in order to maintain access to the Administration, continued to honor arrangements predicated on illegal executive actions. Trump himself said that the accepting firms “have paid me a lot of money in the form of legal fees.” The first firm to make such a settlement stressed the “fact that, as the President publicly has acknowledged, our firm now has an engaged and constructive relationship with this Administration.” As some Members of Congress noted in recent letters to the “settling” law firms, if these agreements are in fact honored, the firms who execute them will have offered free services to the Administration in return for their continued access. Such open, continuing collaboration between the government and the firms runs the risk of violating a host of ethics and state laws, not to mention possible federal law violations ranging from statutes forbidding corruptly promising or giving “anything of value” in exchange for preferential government treatment to the ban on donation of voluntary services under the Anti-Deficiency Act.  The accepting firms should clearly renounce what may otherwise be construed as “pay-to-play” arrangements aimed to curry favor with the Trump Administration.

Fourth, law students and potential clients considering affiliating themselves with an accepting firm should ask: why should that firm continue to do the government’s bidding under an unenforceable contract? If these are not done deals, these firms have a choice. So, who runs the firm: its lawyers or the government? If the accepting firms have surrendered to the Administration the right to choose the firm’s cases, clients, or lawyers, they have clearly created conflicts of interest for themselves and their clients. Any potential employees of the firm would be entitled to take the firm’s decision going forward into account in deciding whether to work there, for the summer or permanently. And any potential clients would be entitled to reconsider bringing work to a firm that would require the firm to deal at arm’s length with a federal government that feels entitled to tell that firm what to do.

In short, the President cannot enforce the law-firm “deals” imposed by his Administration.  The firms who “agreed” under coercion should renounce those “deals,” or publicly explain why they feel constrained to fulfill illusory bargains. If those firms choose to honor the “deals,” their conduct might well prove to be illegal.  No new firms should accept them. And potential clients and employees are entitled to question why a law firm has chosen to surrender control of its choice of future clients or cases to the U.S. Government.

Editor’s note: This piece is part of the Collection: Just Security’s Coverage of the Trump Administration’s Executive Actions

IMAGE: The office of the law firm Perkins Coie is seen on April 10, 2025 in Washington, DC. Perkins Coie filed suit to block President Donald Trump’s executive order that strips security clearances for lawyers working for Perkins Coie and aims to end any government contracts that exist with the firm. (Photo by Kevin Dietsch/Getty Images)

The post No, the President Cannot Enforce the Law-Firm Deals appeared first on Just Security.

In an amicus brief filed on Apr. 8, 2025 in Perkins Coie LLP v. U.S. Department of Justice, 27 former senior government officials of both political parties, who served in the last seven presidential administrations, confirmed that they “have never before seen or condoned an ad hominem punitive, and retaliatory order of this kind, attacking and intimidating lawyers and a law firm on the basis of their lawful activities.” The authors of this piece helped author the brief. It expresses the shared view of amici and counsel that the president’s executive orders against Perkins Coie and other law firms were illegal not just because they violate constitutional rights, but because they offend the Constitution’s structure: the orders are “ultra vires, because they were based on no valid national security concern, issued without any colorable legal authority, and unconstitutionally interfere with the separation of powers.”

At the initial temporary restraining order (TRO) hearing for the Perkins Coie case, Judge Beryl Howell seized on this separation of powers challenge by asking whether “executive orders that . . . stand in for law . . . could be subject to a bill of attainder constitutional bar.” Executive orders are signed, written, and published presidential directives with the force of law that manage the operation of the executive branch. A bill of attainder is a law that imposes a punishment on a specific person or group of people without first going through a trial, something the Constitution explicitly forbids not once, but twice. Judge Howell’s simple question was: Are President Trump’s executive orders targeting specific law firms forbidden because they are essentially bills of attainder? The Trump administration’s lawyer responded that, “as a pure constitutional matter, . . . the bill of attainder restriction is only on Article I and not on Article II [of the Constitution], and so it doesn’t apply to the president.”

To be sure, Article I sets out the structures and powers of Congress, while Article II announces the powers of the president. But the government’s suggestion that the constitutional prohibition on attainder only applies to Article I represents a dangerous formalism that ignores separation of powers principles and contradicts clear historical practice. The original constitutional meaning of the Bill of Attainder clauses—as revealed by text, structure, and history—all show that the president cannot issue bills of attainder. Apart from their other constitutional defects, the unprecedented Trump orders targeting individuals and organizations plainly function as bills of attainder. On their face, they are prohibited by the Constitution and repugnant to its separation of powers.

A Limit on Kings Acting Alone

The Constitution’s prohibition on bills of attainder is rooted in British legal tradition. Several of the Constitution’s Framers, having been the targets of parliamentary attainders themselves, were determined to prevent this retaliatory tool from taking root in their new Republic. The Framers drew on a historical record to establish an important constitutional boundary: throughout British history Parliament and the king invariably acted in concert when issuing attainders. Even under the most tyrannical monarchs, the king never asserted unilateral authority to issue bills of attainder—a power the president now asserts for himself.

The bill of attainder first emerged in the early fourteenth century during the reign of Edward II (1307-1327). Initially, Parliament used such bills as counterweights to royal favoritism run amok. The first recognizable attainders were identified in 1308 and 1321, when Parliament intervened to exile royal favorites Piers Gaveston and later Hugh Despenser the Elder and Younger. Gaveston, whose rapid elevation and arrogance had enraged the nobility, was condemned by Parliament as “a traitor and robber of the people.” Similarly, the Despensers—father and son who had amassed enormous wealth and power through royal patronage—were exiled as “disheritors of the crown” after their influence over King Edward II became intolerable to the barons.

By Henry IV’s reign (1399-1413), the Crown had clearly come to accept the requirement that Parliament be involved in issuing bills of attainder. The King would issue a bill of attainder only on the “advice of his Lords Spiritual and Temporal in the said Parliament assembled” and “by the Authority of the said Parliament.” Even when faced with an open rebellion at Shrewsbury in 1403—treason so manifest it should have required no formal declaration—Henry IV was “particularly careful not to proceed unconstitutionally.” He therefore sought parliamentary action to declare forfeit the possessions of Henry Percy and his uncle Sir Thomas Percy.

Parliament’s role in issuing bills of attainder was again re-enforced when, in 1488, Henry VII (1485-1509) sought to pass a bill of attainder without the assent of the House of Commons. The entry in the year books of Henry VII is clear: the “opinion of the Judges, contrary to that of the king, [is] that the participation of the Commons is necessary to an Act of Attainder.” From 1489 onwards, the law was settled: even where a bill of attainder was introduced on the king’s behalf, the Executive could not issue the bill alone: “the consent of both branches of Parliament was requisite.”

The tumultuous reign of Henry VIII (1509-1547) provides the most compelling evidence of this constitutional constraint on unilateral executive action. Acts of attainder were the “favourite weapon” of Henry VIII. Yet even the mercurial king who broke with Rome, dissolved monasteries, executed two of his queens, and ruled with unprecedented personal authority conceded that he could not issue a bill of attainder without Parliament’s consent. For each of the approximately 130 attainders issued during his reign, Henry VIII observed the requirement for parliamentary approval. If Parliament’s assent was not forthcoming, Henry VIII acknowledged that he was powerless to act. So, when Henry VIII famously sought to attain a list of alleged traitors, and the House of Lords refused to proceed until Sir Thomas More was removed from the bill, it was Henry VIII that relented. This was only one of several instances in Henry VIII’s reign where Parliament made their will known and “complied with the [King’s] wishes only after adding provisos.”

The history books are littered with examples of English kings using bills of attainder to target their political enemies, cursorily blessed by the approval of more compliant parliaments. From Jack Cade of Kent (1450), to Thomas Cromwell (1540), to the Earl of Strafford (1641), many famous enemies of the Crown were condemned by attainder. But even if legislative approval merely gave the kingly act “political cover,” no king dared to dispense with it entirely. In short, for the 300 years leading up to the American Revolution, no British monarch acted without the “consent of lords and commons.” As far as we can tell, unilateral action was never even proposed.

Throughout English history, bills of attainder were invariably a joint exercise—the weapon of both king and parliament working in concert. When the Framers drafted the Constitution’s prohibitions against bills of attainder, they did so with this complete historical picture in mind. The attainder was the king’s instrument as much as Parliament’s, and the Framers understood it as an abuse of governmental power broadly conceived, not merely a legislative excess. Thus, America’s president, with powers “much inferior to” those of the British Crown, cannot claim a power even the king did not possess.

Early Professional Purges

In keeping with this history, bills of attainder became “the most expeditious way of condemning political opponents” in the colonies during the Revolutionary era. These instruments of oppression were “dreaded” for their violation of fair judicial procedure. State legislatures weaponized attainder to strip political opponents of profession, property, and liberty without trial. Each of the 13 colonies enacted attainder legislation to confiscate and sell British loyalists’ property. For example, New York’s Act of Attainder of October 22, 1779 named 59 individuals who were declared “ipso facto, convicted and attainted,” stripping them of property worth an estimated $3,600,000—an enormous sum for the time.

Early American attainders frequently targeted the legal profession. Lawyers, then as now, were penalized for upholding the principle that even the most reviled deserve representation. As Revolutionary fervor swept through the colonies, attorneys associated with loyalist interests found themselves particularly vulnerable. Everyone understood that the surest way to curtail loyalist power was to limit their access to legal representation. As Shakespeare had put it, speaking through Dick the Butcher in Henry VI, Part II, “the first thing we do is, let’s kill all the lawyers.” Accordingly, New Jersey closed its courts to Loyalist attorneys. Pennsylvania extended bills of pains and penalties to lawyers and other professionals, effectively destroying their livelihoods without judicial process. New York suspended Tory lawyers’ right to practice their profession.

Fortunately, use of bills of attainder in the new American states was short-lived. Between 1784 and 1787, as the Constitutional Convention approached, states moved away from such extreme measures. But like the historical weaponization of attainder in England, the early abuse of attainder in the states —including the targeting of the legal profession— had a lasting effect on the Framers.

John Jay, New York’s chief justice, lamented that his state was “disgraced by injustice too palpable to admit even of palliation.” Alexander Hamilton warned that if the legislature “may banish at discretion all those whom particular circumstances render obnoxious, without hearing or trial, no man can be safe, nor know when he may be the innocent victim of a prevailing faction.” Later Chief Justice John Marshall questioned whether the American people can “pretend to the enjoyment of political freedom or security when [they] are told that a man has been, by an act of Assembly, struck out of existence without being confronted with his accusers and witnesses, without the benefits of the law of the land.” In the words of one scholar: “the experience of watching loyalist property at the mercy of popular assemblies helped convince the Framers no legislature could be entrusted with such a terrible power at any time.”

Having witnessed the legal profession being subjected to punishment without trial and barred from practicing simply for representing unpopular clients, the Framers viscerally understood the dangers of circumventing judicial process. Thus, Article I, section 9 of the Constitution flatly states that “[n]o Bill of Attainder or ex post facto law shall be passed,” without distinguishing between statutes and executive orders. Article I, section 10 goes on to bar the states from “pass[ing] any Bill of Attainder.” The proscription against bills of attainder was so universally accepted that the two constitutional prohibitions “were adopted by the Constitutional Convention unanimously, and without debate.” The Framers’ decision to prohibit bills of attainder twice in the Constitution stemmed directly from their firsthand experience with these professional purges. The historical record speaks with unmistakable clarity: measures to deprive lawyers of professional standing through political fiat, rather than judicial determination, represent the very tyranny that the attainder clauses were designed to prevent.

The Article I Fallacy

In sum, the prohibition on bills of attainder reflects the Framer’s profound concern with preventing the government from “singling out disfavored persons and meting out summary punishment for past conduct.” As Judge Howell recognized during the Perkins Coie TRO hearing, when executive orders function as de facto legislation targeting specific individuals for punishment, they trigger the same constitutional concerns as legislative bills of attainder. This constitutional safeguard must therefore apply whether punishment comes through legislative act or executive order, particularly when targeting lawyers for representing unpopular clients.

The Bill of Attainder clauses in the Constitution do not just protect against governmental abuse; they safeguard the separation of powers. America’s constitutional order reserves to the judicial branch alone the power to determine guilt and impose punishment following due process. Executive orders that bypass this structure threaten not just the legal profession, but the very separation of powers that shields every citizen from the arbitrary exercise of authority the Framers so deeply feared. As the Supreme Court recently noted in SEC v. Jarkesy, the Framers took pains not to concentrate “the roles of prosecutor, judge, and jury in the hands of the Executive Branch.” But the recent Trump executive orders unconstitutionally install the president in all three roles, levying retaliatory punishment against individuals and institutions who have been neither charged with nor found guilty of any crime.

To be sure, the Constitution places the bill of attainder prohibitions in Article I, which governs legislative power. However, legislation only becomes law when signed by the president pursuant to Article I’s presentment requirement. How could a president alone have the authority to issue by executive order what would be unconstitutional if enacted with his signature and congressional approval? Unleashing executive bills of attainder would also threaten the residents of every state. Could ambitious state governors seeking political advantage, at their whim, similarly claim power to launch performative punitive orders targeting disfavored groups within their state? As the Supreme Court emphasized in Cummings v. Missouri, the “inhibition [on bills of attainder is] levelled at the thing, not the name”—“what cannot be done directly cannot be done indirectly.”

The Trump administration’s claim that the president alone can issue what would be forbidden bills of attainder if enacted by legislation represents a dangerous misreading of the Constitution’s history. The very Framers who suffered under bills of attainder never intended to grant their new president a unilateral power to punish perceived enemies that even three centuries of English kings did not possess. As amici say in closing their brief:

“When [we] served in the United States government, executive orders of this nature would have been viewed as unthinkable violations of [our] constitutional oath. Yet the repeated issuance in recent weeks of punitive executive orders against specific lawyers and law firms, with perhaps more to come, makes clear that this Administration will continue to levy such sanctions unless enjoined by the courts.”

For a court to accept that claim would disregard centuries of Anglo-American legal tradition and undermine one of our most fundamental safeguards against arbitrary power. Using formalism to validate the president’s retaliatory orders would distort the original historical meaning of the Constitution and undermine one of its most fundamental purposes: to “establish Justice, . . . and secure the Blessings of Liberty.”

Editor’s note: This piece is part of the Collection: Just Security’s Coverage of the Trump Administration’s Executive Actions

IMAGE: Drafting the declaration of independence in antique illustration (via Getty Images) 

The post No, the President Cannot Issue Bills of Attainder appeared first on Just Security.

What are some reforms that could restore the balance?

Harold Hongju Koh has studied presidential power for decades both as a professor and the former Dean of Yale Law School, and in various government roles, including as the Legal Adviser at the U.S. State Department.

His new book, The National Security Constitution in the 21st Century, argues for structural reforms to realign the balance of power among Congress, the courts, and the president. Harold joined us to discuss the book and Just Security’s recent symposium featuring expert analysis and discussion on some of its key ideas.

This episode was co-hosted by Just Security’s Co-Editor-in-Chief, Tess Bridgeman.

Show Notes:

• Just Security’s symposium on Harold’s book The National Security Constitution in the 21st Century (Yale University Press)
• Music: “Broken” by David Bullard from Uppbeat: https://uppbeat.io/t/david-bullard/broken (License code: OSC7K3LCPSGXISVI)

Listen to the episode, with a transcript available, by clicking below.

The post The Just Security Podcast: ‘The National Security Constitution in the 21st Century’ Book Talk appeared first on Just Security.

For those committed to the rule of law, almost palpable despair has set in as the world awaits President-elect Donald Trump’s second term. But rather than surrender to it, what short- and long-term strategies should rule of law advocates pursue?

This essay addresses in Part I the short-term challenge of the Trump 2.0 years: combining resistance to any anti-democratic actions with resilience to stem the likely influx of illegal initiatives, as I previously explored in The Trump Administration and International Law. But even while rule of law advocates are plugging the dam, they should not ignore longer-term structural issues. The second, longer-term challenge—addressed more recently in The National Security Constitution in the 21st Century—will be simultaneously rebuilding the constitutional dam by pursuing structural reform to restore institutional checks and balances between the branches of government. During the next few years of legislative deadlock and intense political polarization, comprehensive national security legislative reform will undeniably be difficult to obtain. Instead, my book—and the various responses to it in this Symposium and elsewhere—suggest a mosaic of reforms to be implemented in each branch over time (263-326). As Part II below suggests, the goal is gradually to retrofit all three branches to dampen the dysfunctional institutional interaction that keeps driving presidents to act unilaterally, Congress to do nothing, and the courts to rubber-stamp and defer. Even if adopted individually, over time, these reforms should start working collectively to counteract the institutional incentives that skew the current system toward executive unilateralism.

I. Stemming the Flood: Resilience and Resistance

Let’s start by recognizing that “it’s never as good as it looks or as bad as it seems.” Trump’s narrow congressional margins of victory limit his freedom and make it unlikely that his party’s two-chamber control will last beyond two years. Rather than being overawed by the looming challenge, rule of law advocates should approach those years by emulating the stranded astronaut in The Martian: “You solve one problem and solve the next one, and then the next. And if you solve enough problems, you” can get past the immediate crisis.

We should not forget that the rule of law problem the United States faces is bigger than Trump. Regardless of who occupies the White House, America faces a structural problem that transcends personalities: the Office of the President has become our most overlooked national security threat. With each successive presidency this century, the constitutional pendulum has swung further and further toward executive unilateralism, climaxing in Trump’s breathtaking assertion that Article II “gives me the right to do whatever I want.” Early announcements forecast that Trump’s second term will greatly exacerbate that threat. But we can already look past Trump to imagine even more dangerously unilateralist presidents: populist autocrats determined not just to disregard constitutional checks and balances, but more systematically and ruthlessly to invade foreign countries, shatter alliances, and undermine international law.

Unlike in 2017, some of Trump’s likely moves challenging the rule of law can be anticipated based on his track record. He is likely to favor impulse over strategy, transactions over relationships, hard power over diplomacy, and “resigning without leaving” over meaningful engagement with international institutions. He will most likely continue to denigrate the truth, lying relentlessly to distort reality. He is also likely to attack the press, diplomacy, and government bureaucracy in an effort to reverse Biden policies and confound longstanding bipartisan foreign policy commitments with which he disagrees. By targeting and demonizing opponents, he will discourage collective resistance to these actions by encouraging anticipatory capitulation. He will use “shock and awe”— what I once heard Lucas Guttentag call “public spectacle and hidden terror”—to encourage isolation, self-silencing, and self-exit of those committed to defending the rule of law, undocumented immigrants from the United States, and career civil servants from the U.S. government. We can count on him to “flood the zone” with numbing and distracting daily outrages. Reckless threats to impose massive North American tariffs, or to buy Greenland and the Panama Canal, will seek to shift the “Overton Window,” so that the previously unimaginable becomes the new normal: as he has already done by lowering the standard for Senate confirmation from “having a worthy Attorney General” to “better than Matt Gaetz.”

In the waning days before inauguration, Biden officials should take every available preventive measure to lock in rule-of-law-promoting measures, in a way that maximizes the difficulty of unilateral reversal. Examples include dramatically reducing the number of detainees remaining at Guantanamo, embedding civilian harm incident reduction (CHIRG) policies into Executive Orders, placing more human rights conditions on military aid to Israel, and various urgent Ukraine measures: sending last minute aid to Ukraine, publicly urging Ukraine’s admission to NATO, and transferring more income derived from frozen Russian assets. Of course, Trump can undo some of these measures, but it will take time to do so, running down his clock to do damage, while creating opportunities to generate opposing litigation. Meanwhile, Congress should rebuff imprudent calls, after the New Year’s New Orleans attack, to give Trump a “9/11-type blank check,” or to rush to confirm Trump’s national security team without careful process.

Once Trump assumes office, the best strategy for rule of law advocates remains using the law and bureaucratic inertia to check anti-rule of law initiatives. Trump aspires to two years of “frictionless government,” contrary to Justice Louis Brandeis’s observation in Myers v. United States that “the purpose of separation of powers is …‘by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.’” As Ashley Deeks and Kristen Eichensehr have astutely warned, when one party dominates all branches of government, or when no partisan disagreement emerges on a particular issue (e.g. getting tough on China),

[t]he disappearance of partisan, interbranch, and interagency checks can amplify cognitive biases that often arise in decision making, including groupthink, and result in governmental actions that spark or escalate conflict, trigger actions by U.S. adversaries that undercut U.S. security goals, and unlawfully target domestic constituencies perceived to be linked to foreign adversaries.

The president can be restrained, they urge, by building into standing institutions the “friction imposed by the political branches on themselves (or on each other) and sources of friction external to the U.S. government.”

But as Trump 2.0 unfolds, both kinds of friction can and should arise. Trump’s supporters have already announced disturbing plans to reduce law enforcement independence, relax restraints on conflicts of interest, and restrain domestic military adventurism. Any abuse of the Insurrection Act, the Alien Enemies Act, and the National Guard will surely attract intensive litigation. His high-profile pledge to improve government efficiency could create exploitable opportunities for bureaucratic reform that could refashion executive mechanisms to promote better national security legal advice. A Congress with key members skeptical of Trump’s national security excesses could adopt the core legislative proposals that I suggest and Deeks and Eichensehr support: a Joint Committee for National Security, a Congressional Legal Adviser, and better congressional tools to create the frictions that can restrain executive unilateralism.

Over time, as Mike Johnson’s narrow re-election as House Speaker has already exposed, other frictions will arise: some naturally, and others caused by resistance, not just from across the political aisle, but among the factions who make up Trump’s variegated support. Trump’s overconfidence will lead his team to take extreme first moves on such issues as immigration, tariffs, and tax cuts, that will hurt middle-class Americans on pocketbook issues. As Trump overplays his hand—as he has already done with his preposterous intended nominations of Gaetz, Pete Hegseth, Kash Patel, Robert F. Kennedy, Jr., and Tulsi Gabbard, among others—alienation may set in among his most marginal backers. In time, Albert O. Hirschman’s notion of “countervailing passions” will likely kick in, so that Trump’s extreme “movement supporters” will increasingly disagree with those narrowly interested in seeking personal gain from his reascendancy.

As in Trump’s first term, even more frictions will arise as institutional counterweights coalesce and mobilize on a repeat-player basis: states and localities (especially on climate change and immigration), uncowed independent media, rule of law defenders within international institutions and regimes, powerful private interest groups (including some technology companies, concerned former military, and democracy and civil liberties organizations), and nongovernmental rule of law-promoting institutions. Bureaucratic resistance, leaking, and whistleblowers—such as those who reported Trump’s coercive 2019 conversation with Ukraine’s President Volodymyr Zelenskyy—will help make executive branch actions more transparent.

Different sources of friction will arise on the international plane, where Trump’s anti-rule of law policies will face frequent, forceful pushback in both diplomatic and dispute-resolution fora. As I have previously recounted, Trump’s first term reminded us that the rule of law is sticky and bends more easily than it breaks. Today’s global norm is not autarky, but interdependence. Domestic and international law are so intertwined in what I have called a “transnational legal process” that they create default patterns of law-observant behavior that even a willful and lawless president cannot easily discard. Transnational legal process is bigger than Trump and so are such substantive challenges as global climate change and pandemic prevention. International bureaucracies and alliances assume legality and resist repeated insults to the rule of law. Violations are costly and trigger cascades of lawbreaking. Illegalities abroad breed global blowback, which come back to haunt the lawbreaker somewhere else. So perceived lawlessness by the second Trump administration will dilute American Smart Power, and an “America First” strategy will devolve into “America Alone.”

Paradoxically, as Rebecca Ingber incisively notes, “[t]he broader distaste for international institutions [exemplified by Trump and others] is in part a fear that Americans will lose control over the rules that govern us. [But the] irony is that each of these concerns becomes more realistic the less the United States engages with the process of shaping international law and institutions.” (emphasis added) So radical disengagement will foster further frictions. Even Trump loyalists, like Marco Rubio and Elise Stefanik—the likely nominees for Secretary of State and U.S. Permanent Representative to the U.N.—will want their diplomatic counterparts to listen to America. In time, those appointees may start to push against global isolation and for engagement—as Rex Tillerson and Nikki Haley sometimes did in the first term—if only to enhance their own personal standing and influence.

Over the medium term, the main strategy for avoiding major democratic backsliding will become resilience. Litigants challenging unlawful policies are likely to win at least some early victories from federal judges. Trump’s undisciplined impulses will make it hard for his administration to maintain a durable coherent approach on any complex issue. Over time, sustained opposition to deep structural change will likely shift the focus of Trump’s short attention span to easier symbolic targets.

II. Rebuilding the Dam: Longer-Term Reform

Even while rule of law advocates are plugging the dam, they must help rebuild it. My book’s penultimate chapters addressed a range of reform proposals to restrain unilateral warmaking, and clarify international lawmaking and unmaking, intelligence oversight, information control, and protection of the democratic electoral process. This Symposium has offered constructive “friendly amendments” to a number of these proposals, which I generally accept. Let me briefly comment on three: restraining secret law (here); maintaining America’s relationship with international law (here) by clarifying constitutional restraints on unilateral unmaking of treaties and international agreements (here and here); and promoting better readings of presidential power (here) by avoiding “Youngstown category manipulation.”

Unveiling Secret Law. Even a new Congress that backs the president should know the sources of the president’s legal advice. Dakota Rudesill incisively highlights the urgency for Congress to impose greater transparency regarding secret law—nonpublic law that exists in all three branches—which can give legal cover for overbroad and unaccountable uses of law.

Trump’s threat to use the Vacancies Act and recess appointments raises red flags that many senior executive lawyers will be put in place without proper vetting or assurances that they will follow Congress’s laws. After 9/11, classified OLC memos, including the notoriously wrong “torture memo,” reinterpreted laws without running through normal internal or inter-agency processes. Trump’s second term may similarly seek to invoke secret law to justify executive orders directing mass deportations, domestic deployment of the military, and dismantling key components of the administrative state. To combat this—and future abuses of power under either party—Congress should, as both Rudesill and I urge, enact the DOJ OLC Transparency Act to reduce the executive’s ability to withhold legal memos used to depart from public understanding of the law. Requiring legal transparency should be a constitutional responsibility, not a partisan issue. Republicans have a strong incentive to hold the next Democratic administration accountable under the same transparency requirements. As Rudesill argues, reporting all OLC secret law to Congress could build momentum to fix other areas of insufficient transparency.

Unmaking Treaties and International Agreements. My initial Symposium post asked whether “Donald Trump [could] by tweet unilaterally withdraw the United States from every treaty, agreement, and international institution to which the United States is a party?” As a matter of constitutional law, the legal question is whether the president has an inherent unilateral power to terminate any and all treaties and executive agreements, or whether the Constitution requires a more fact-sensitive rule requiring more congressional participation to terminate different kinds of agreements, depending on their subject matter? As I have detailed elsewhere, neither the Constitution’s text nor structure answer this question definitively. While recent historical practice has seen unilateral executive withdrawals, very few of those have been contested by Congress. INS v. Chadha (1983) graphically showed that the Court may declare unconstitutional even an institutional practice (e.g., legislative vetoes) in which a coordinate branch has acquiesced for many decades.

The only Supreme Court case on point, Goldwater v Carter (1979), found nonjusticiable President Jimmy Carter’s termination of a particular bilateral mutual defense treaty, in accordance with its terms. But tellingly, none of the nine justices in Goldwater endorsed a unilateral one-size-fits-all transsubstantive power of presidential treaty termination. To the contrary, the proposition on the merits that garnered four votes was “that different termination procedures may be appropriate for different treaties” (William Rehnquist J. concurrence at 1003) (emphasis added). A fifth justice, Justice William Brennan, also voted for the president’s power to terminate the treaty at issue, not because the president had a general inherent power of unilateral treaty termination, but because in that particular context, the subject matter at issue (recognition) empowered him to do so. For that reason, my book argued for a more fact-sensitive, context-specific constitutional “mirror principle,” whereby a comparable degree of congressional input should be required for agreement termination as for entry (311-315).

The Symposium pieces on this topic—by Professors Sean Murphy and Ed Swaine and Catherine Amirfar and Ashika Singh—both agree that the United States needs a more nuanced constitutional rule to govern withdrawal from international agreements.

Amirfar and Singh further agree that because presidential powers exist on a continuum, the constitutional rule in this area must consider the degree of congressional approval and the constitutional allocation of institutional authority over the subject matter. They generally endorse the “mirror principle” with complementary “friendly modifications” that they refer to as a “tailored out” approach, that would build in greater flexibility to address situations where the mirror principle might not be possible to apply. Their “tailored out” approach would require nuanced assessment of the text and subject matter of particular agreements—for example, international trade agreements—in light of the tripartite framework of congressional approval suggested in Justice Robert Jackson’s landmark concurrence in Youngstown Sheet & Tube Co. v. Sawyer.

In particular, Amirfar and Singh argue that unilateral executive withdrawal by Trump from the Paris Climate agreement—which was initiated by the executive with congressional awareness and approval and broadly implicates Congress’s commerce powers—would infringe upon congressional powers. They further suggest that Congress incorporate requirements for withdrawal into congressional authorizations for an agreement, and enact legislation to set out a withdrawal process from certain agreements, for example, Section 1250A of the 2023 National Defense Authorization Act (NDAA), which expressly prohibits the president from withdrawing from NATO or using any appropriated funds for that purpose without congressional permission and ensures that withdrawal be scrutinized with caution by a reviewing court.

Murphy and Swaine are sympathetic to a mirror principle “as a better aspiration for interbranch cooperation,” agreeing that we should “avoid[] a rigid rule whereby the president can always terminate agreements unilaterally.” Just because the president can unilaterally terminate a sole executive agreement made within the scope of his plenary executive power does not mean that he can terminate unilaterally the new NAFTA (USMCA) or another congressional-executive agreement that was entered only after an extensive congressional debate and vote in an area of core congressional subject-matter authority. While we disagree on precisely what the law currently requires, they recognize that Congress or the Senate might limit presidential termination when authorizing an agreement or through a later statute, and that if Trump sought to disregard such limits, his power would fall into the Youngstown III category, where his authority is at its “lowest ebb.”

But the difficult question is what to do if Congress, or the Senate, approves an agreement but is silent about any future termination procedure. Especially if a congressional-executive agreement is self-executing, and functions like a statute, it is hard to see where the president acquires the unilateral constitutional power to repeal that congressional-executive agreement.

Murphy and Swaine agree that it is “somewhat anomalous to allow the president to repeal the ‘law of the land’ when it is in the form of a treaty but not in the form of a statute.” They further acknowledge that presidential authority over appointments—where the president needs Senate confirmation to make the appointment, but may fire that official unilaterally—“is not precisely comparable to the issue of terminating international agreements.” As I have argued elsewhere, recent Supreme Court doctrine in Zivotofsky v. Clinton has reduced barriers to justiciability by narrowing the political question doctrine. So an agreement termination properly contested by Congress would likely be justiciable. During the second Trump administration, litigation should clarify whether, absent a congressional condition on exit, the constitutional default rule is that the president possesses a one-size-fits-all unilateral termination power, or whether that termination power varies, depending on how much congressional input went into entering the agreement.

This is not just a narrow constitutional question, but a policy challenge critical to the future of global governance and America’s relationship to international law and institutions in a post-Trump world. As Ingber observes, “if a reckless president withdraws the United States from critical institutions or treaties, they may face few political consequences for doing so, and the United States may never be able to rejoin.” More than 40 years ago, during the Goldwater litigation, D.C. Circuit Judge George MacKinnon foresaw the danger of “an ambitious or unreasoned President disengaging the United States from crucial bilateral and multilateral treaties with the stroke of a pen.” As Ingber notes, even if Trump cannot singlehandedly destroy international law and institutions, the United States may well emerge from his presidency lacking a coherent “strategic vision of how to engage international law and institutions going forward.” America’s post-World War II global leadership position could erode, diminishing U.S. influence and capacity to negotiate agreements, promote accountability, and engage in international dispute-resolution for generations to come.

Reducing Youngstown Category Manipulation. Deeks and Eichensehr usefully highlight what they call “Youngstown Category 1 Complacency”: an interpretive move whereby courts too easily conclude that spotty historical precedent, ambiguous congressional silence, and perceived “congressional shoves” push unilateral presidential action up into Youngstown Category 1, where the president’s power is deemed to be at its constitutional maximum. As my book chronicles (255-56), the risk that the courts will expand “Youngstown category manipulation” is one of the greatest dangers of the Trump 2.0 era.

Beyond the pages of this Symposium, Professor Jack Goldsmith chides me for

treat[ing] presidential actions pursuant to broad but clear congressional authorizations as examples of presidential unilateralism that defy the Youngstown vision. … Koh decries presidential actions pursuant to this broad but clear delegation [in 8 USC § 1182(f), as construed in Trump v. Hawaii] as a “statutory Curtiss Wright” approach to immigration—a strange formulation, since Congress clearly authorized broad presidential discretion.

But Goldsmith misunderstands the point: the very question is whether the congressional delegation to the president is in fact “broad but clear.” My new book argues that the courts have increasingly applied Justice George Sutherland’s infamous opinion in U.S. v. Curtiss-Wright Export Corporation to distort Jackson’s Youngstown analysis at both a constitutional and a statutory level.

First, Curtiss-Wright’s dicta positing that the president may exercise inherent constitutional authority as “sole organ” of the nation in foreign affairs has been read to empower the courts and executive branch lawyers to apply a “Youngstown Category Three” theory (256). Under that theory, a court may invalidate even a legislative enactment in direct opposition to presidential will—although in Category III the president’s power should be at its “lowest ebb”—claiming that the statute unconstitutionally invades the president’s exclusive constitutional “sole organ” power. As I point out with respect to the Haitian refugee case (in which I represented the respondents), the first major Supreme Court test of the statute Goldsmith cites, 8 USC § 1182(f),

the president’s direct return of the refugees should have fallen into the third category of Jackson’s Youngstown concurrence, where the executive’s ‘power is at its lowest ebb’ because the president is acting in a manner ‘incompatible with the express or implied will of Congress’ that [as Justice Blackmun put it in his dissent, 509 U.S. at 190] ‘[v]ulnerable refugees shall not be returned.’ But the majority simply rejected this Youngstown claim, predictably citing in dictum Curtiss-Wright. (141)

But a second problem with Sutherland’s opinion is its “statutory Curtiss-Wright” theory of delegation (256), which emphasizes “the unwisdom of requiring Congress in this field of governmental power to lay down narrowly definite standards by which the President is to be governed.” (299 U.S. at 321-22). If applied as an overly deferential canon of statutory construction, this language would enable courts—notwithstanding individual rights, legislative intent, or legislative history to the contrary—to misread statutory authorizations to place presidential actions into Youngstown Category I that properly belong in Categories II or III. Citing this Curtiss-Wright language, a court may conclude that Congress has conferred a greater degree of discretion on the president through a foreign affairs-related statute, because the delegated statutory authority overlaps with or complements the president’s own constitutional foreign affairs powers. But as noted in my book, this judicial tendency

encourage[s] the president to act first then search for preexisting congressional blank checks, rather than seek specific prior or immediately subsequent legislative approval of controversial decisions. … [This] has encouraged executive-branch lawyers to play ‘find the statute,’ that is, to search the U.S. Code for preexisting statutes that they can claim already directly or implicitly authorized the challenged action…allow[ing] the president to avoid asking the legislature for new legislative authority, which might be withheld. (115)

To prevent Youngstown Category manipulation in the Trump 2.0 era, vigilant courts should follow Justice William Douglas’s directive in Kent v. Dulles (1958), declaring that judges must find a clear statutory statement that Congress has authorized the executive act in question before deciding whether to condone executive actions in foreign affairs that infringe upon individual constitutional rights. As Douglas put it in Ex Parte Endo,(1944), applying a “clear statement principle,” rather than a “statutory Curtiss-Wright principle” of statutory construction, requires that judges “must assume, when asked to find implied powers in a grant of legislative or executive authority, that the law makers intended to place no greater restraint on the citizen than was clearly and unmistakably indicated by the language used.”

This concern about Trump 2.0 claiming “broad but clear delegations” from obsolete statutes extends to warmaking as well. As I asked in my initial Symposium post: “Would current law allow [the president] unilaterally to back into a wider war in the Middle East, out of a desire to help Israel fight Hamas, Hezbollah, Iran, and Iran-backed militias in the Red Sea?” If Trump seeks to enter a wider war in the Middle East, he will surely claim delegated power to do so, citing Authorizations for the Use of Military Force that are more than a quarter-century old. But as I have repeatedly argued in urging steps to end Forever War (e.g., here and here), Congress should require Trump to seek new legislative authorization for any new U.S. military actions, rather than claiming that those actions are authorized by prior statutes that were plainly meant for earlier conflicts. Goldsmith claims that I have changed my views of war powers since 1990, now favoring “a vision of unilateral presidential war powers that defies the balanced institutional participation that his book otherwise exalts,” because I question the efficacy of the War Powers Resolution. But as one of my research assistants for the original version of The National Security Constitution, Goldsmith may recall that I expressed similar hesitations about the War Powers Resolution back then (x, 38-40, 174, 189-93). And as I note at the conclusion of my new book, “during the four decades since I first entered the government in the 1980s, my legal views and guiding principles have remained largely unchanged. … I have offered detailed legal defenses and have read no persuasive rebuttals of my written opinions as a government lawyer, which I continue to believe are correct” (338-9).

To be sure, recent Congresses have not pushed back against the Office of Legal Counsel’s view “that Article II authorizes the president to use force without congressional authorization for “limited interventions of constrained nature, scope, and duration,” so long as they do not rise to the level of “war” that Congress must constitutionally declare. But once again, Congress is certainly free to do so if president Trump abuses that authority, as the executive branch did in the 1980s in Chadha, when it successfully challenged the constitutionality of the legislative veto after acquiescing in that device for many decades.

A Problem Bigger than Trump. As my book chronicles, the Founders sought above all to avoid installing a new American king (16-27). If Trump’s re-election has any silver lining, it may be as a wake-up call saying “America, we have a problem”: the threat that autocracy will return because of overconcentration of government power in the executive. I am grateful to those who have commented on my book for grappling so thoughtfully with that issue. If the problem is structural, the answer cannot simply be surviving Trump 2.0, however stressful that may be.

Globally, the problem of autocracy is on the rise. We see autocrats ruling in Belarus, China, Russia, Hungary, Iran, Myanmar, Nicaragua, South Korea, Sudan, Venezuela, and rising even in such traditional democratic strongholds as France, Italy, and Germany. One of many reasons to look to foreign constitutional experience (291-95) is to see how other embattled democracies have responded when their autocratic leaders try to steal their democracy.

Once again, the watchwords of rule of law advocates should be vigilance and rapid response. As a Korean-American, I was horrified when a Korean president with rapidly declining approval ratings invoked martial law to try to steal democracy. The Korean people heroically rose up, announcing by action in just a few hours, that “this is our democracy. It is not yours to steal.” But even in my relief, I wondered, “If something like that should happen here, would Americans respond so ferociously and so fast?”

I harbor no illusions that the reforms proposed by this Symposium will come quickly, but our alternatives, quite simply, are acceptance, apathy, despair, or reform: now or later. Beginning a decades-long national security reform process is not just necessary, but urgently demanded to break inertia and launch a new dynamic of reform. Yes, we live in a time of intense polarization. But as the 21st century unfolds, I refuse to believe that there will not come a time when we can return to a shared national commitment: not to “America First,” but rather, to being “Americans First.” (339)

IMAGE Tetra Images via Getty Images.

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As America’s 2024 presidential campaign enters its stretch run after last night’s debate, it is tempting to believe that electing one ticket or the other will solve all our problems. Have no doubt: this is a hugely consequential election, and the slate the U.S. people elect will have enormous power to shape the future of America’s foreign and national security policy. But we must not ignore that the United States’ deepest constitutional and national security challenge involves not personalities, but structure.

Consider two hypotheticals. First, upon resuming office, could Donald Trump by tweet unilaterally withdraw the United States from every treaty, agreement, and international institution to which the United States is a party? If not, what legally could stop him? Alternatively, if Kamala Harris should become president, would current law allow her unilaterally to back into a wider war in the Middle East, out of a desire to help Israel fight Hamas, Hezbollah, Iran, and Iran-backed militias in the Red Sea? If that would be illegal, what is to stop her?

In both cases, the sobering answer is: probably nothing. Our 21st century history teaches that in both cases, the president could likely do it and claim it is lawful, Congress would likely defer, and the courts would either decline to adjudicate or rubber-stamp the president’s actions on the merits. So the problem is bigger than personalities. The president currently has too much discretion to take acts that seem both unwise and illegal without legal check or consequence. The deeper question is: how have nearly 250 years of American history so distorted structural features of our national security system to transform the chief defender of our national security, the president, into today’s biggest potential national security threat?

My new book The National Security Constitution in the 21st Century explains the confluence of interactive institutional incentives that has brought us to this precarious state of affairs. The book culminates nearly five decades of studying the constitutional conduct of America’s foreign policy, from both inside and outside the government. When I first studied this topic during the Iran-Contra Affair, nearly four decades ago, I argued that a subset of constitutional norms, precedents, and framework laws best understood as “The National Security Constitution” govern the making of U.S. foreign policy. I further argued that two divergent constitutional visions have competed for dominance over our nation’s history: the Framers’ founding vision of balanced institutional participation, captured in Justice Robert Jackson’s landmark concurrence in Youngstown Sheet & Tube Co. v. Sawyer, versus the unilateralist vision of the president as “the sole organ of our Nation in foreign affairs” trumpeted by Justice George Sutherland in United States v. Curtiss Wright Export Corp. (which, when I first joined the Justice Department was called, only half-jokingly, “the Curtiss-Wright, so I’m right cite.”).

As my book chronicles, the Founders sought above all to avoid installing a new American king. But the Curtiss-Wright vision found adherents even at the Founding and has since asserted itself repeatedly over the nearly 250 years of American foreign policy; each time, the Youngstown vision has persistently clawed back. As recently as the presidencies of George H.W. Bush and Bill Clinton, the Youngstown vision continued to hold sway. But with the successive 21st century presidencies of George W. Bush (“Bush 43”), Barack Obama, Donald Trump, and Joe Biden, the Curtiss-Wright vision has taken hold with increasing ferocity. Bush 43 and Trump seized unilateral power proactively, and in Trump’s case, with naked disdain for the rule of law. Obama and Biden, saddled with weak legislative majorities, grasped unilateralism reactively. But whether proactive or reactive, the presidential grab for unilateral power has continued, with successive presidents becoming victims as much as villains in a national security process in which they bear all of the public expectations, all of the responsibility, and ultimately, all of the blame. So with each presidency this century, the constitutional pendulum has swung further and further toward executive unilateralism, climaxing in Trump’s breathtaking assertion that Article II “gives me the right to do whatever I want,” his post-defeat call for “the termination of all rules…even those found in the Constitution,” and his Supreme Court’s jaw-dropping decision in Trump v. United States apparently immunizing him for any foreign policy or national security actions so long as they can be dubbed “official.”

Many factors, both external and internal, have contributed to the rise of executive unilateralism. External factors include the end of the Cold War and the rise of a multipolar world; the growing power of nonstate actors; and pervasive threats triggered by the September 11th attacks, the Covid pandemic, and the rising threat of climate change. Internal factors include the wildly disproportionate growth of the national security bureaucracy; the collapse of the bipartisan legislative process; the decentralization of congressional foreign policy decision-making and legal advice; and the federal judiciary’s increasing proclivity to avoid adjudicating or to rubber-stamp dubious executive actions based on what Justice Sonia Sotomayor has dubbed “national security masquerades.” But indispensable actors in this process have been executive branch lawyers. (I have served as one for many years of my career, but for reasons detailed in the book, I stand by the advice I gave). Understandably, the president’s lawyers address each sequential crisis by trying to maximize the president’s ability flexibly to contain and counteract national security threats. But ironically their accumulated precedents, each written to help neutralize the particular urgent national security challenge at hand, now collectively enable the very real prospect that the president will become the greatest national security threat of all.

If this diagnosis is correct, what is to be done? If the problem is structural, the answer cannot simply be stopping Donald Trump’s re-election, although his return to power would surely push the U.S. constitutional system to the breaking point. As dangerous—and as last night’s debate showed, increasingly unhinged—as Trump is, we can easily envision even more unilateralist and dangerous presidents than Trump: populist autocrats inclined to invade foreign countries, shatter alliances, and undermine checks and balances more systematically and competently. We cannot simply rely on elections to throw the rascals out, when there will always be other rascals more adept at stealing elections and grabbing unilateral power.

Our alternatives, quite simply, are acceptance, apathy, despair, or reform: now or later. In an era of legislative deadlock and political polarization, comprehensive national security legislative reform would undeniably be difficult if not impossible to obtain. Instead, the solution must be a mosaic of reforms—some executive, some legislative, and some judicial—implemented over time, and designed individually and collectively to counteract current institutional incentives. Our goal should be to dampen the dysfunctional institutional interaction that keeps driving presidents to act or react unilaterally, Congress to do nothing, and the courts to rubber-stamp and defer. If we are serious about reform, those efforts must extend to all three branches of government.

My book suggests executive restructuring by creating mechanisms to promote better national security legal advice, law enforcement independence, to reduce conflicts of interest, restrain military adventurism, and reform the bureaucracy. It suggests that Congress reform itself by creating a Joint Committee for National Security, a Congressional Legal Adviser, and better congressional tools to restrain executive unilateralism. The courts, I argue, should reduce unnecessary barriers to justiciability (as the Supreme Court began to do by rigorizing the political question doctrine in Zivotofsky v. Clinton) and modify judicial doctrines—such as the presumption against extraterritoriality and the recent Court’s unwillingness to look to foreign law in constitutional interpretation—that are ill-suited to an age of globalization. And over time, proponents of reform must empower other counterweights to executive power, including states and localities, the media, U.S. allies, private actors, and black-letter Restatements of Foreign Relations Law. The penultimate chapter explains how meaningful reform could be achieved in various areas of national security law: warmaking, international lawmaking and agreement breaking, intelligence oversight, information control, and protection of the democratic electoral process.

I harbor no illusions that such reforms will come quickly, but beginning the process is not just necessary, but a useful goal in itself; just starting a decades-long national security reform process will likely spur further reforms. Skeptics may scoff that our current extreme polarization makes even modest reform unobtainable. But in just the last few months, both U.S. presidential candidate Vice President Kamala Harris and U.K. Prime Minister Keir Starmer made unequivocal commitments to country over party. As the 21st century unfolds, I refuse to believe that there will not come a time when we can return to a shared national commitment not to “America First,” but rather, to being “Americans First.”

Nor do I have any serious concerns that such reforms would hamstring the presidency. Serving under four presidents has taught me that in genuine emergencies, executive power always finds a way. But under our current system, the president goes it alone, and the courts and Congress wash their hands of responsibility. Structural reform is sorely needed to ensure a strong president within a strong constitutional system of checks and balances. In the end, the Framers understood an important and enduring truth: that our national security is best protected if the power to conduct America’s foreign policy remains a power shared.

IMAGE: An image of the White House (via Getty Images).

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Why did we come to Lviv? We gather at this historic place and time to show solidarity, and to honor the resilience and unbroken spirit of the people of Ukraine through ideas and action. But most important, to think together as international lawyers about how to build a better future.

In every generation, a crisis comes to a country that becomes a seminal global public event and engages our life’s work of advancing international law. I last visited Ukraine in March 2020, to judge the Jessup International Moot Court competition. I befriended a young international law student, Tata Marharian, who escorted me around Kyiv. But after war broke out, I turned on CNN to see her, an enlisted soldier now working as a medic in a medical hospital, taking care of the injured and dying. “I don’t know how long I can go on with the news of friends and my close ones being captured by the Russians, being wounded and dying,” she said. “It’s very, very devastating.” When I sent her a message, she wrote back, “Where is the international law I believed?” Today, I try to answer Tata’s question.

When Russia launched its full-scale invasion of Ukraine in February 2022, too many assumed that international law had totally failed. But my brother, a doctor, told me, “just as the real test of medicine is how it responds to disease, so too, must the real test of international law be how it responds to war.” Let me address Ukraine’s four wars, its grand strategy, and what international lawyers have done and must do.

1. Ukraine’s Four Wars

In Ukraine, the independence story that began in 1991 reached fruition during the 2013 Euromaidan, when Ukrainian sought to leave Russia’s orbit to become closer to Europe. This triggered Russia’s aggression, the opening gambit being the annexation of Crimea in 2014, and the arrival of “little green men” and brutal mercenaries like the Wagner Group in the Donbas – Donetsk and Luhansk. Ukraine fought back. And one reason Ukraine has held Russia to a standstill thus far is because it hasn’t been fighting for two years, but for nine. The Russians followed a familiar blueprint of colonialism, brutality, and the big lie, previously followed by Stalin and Hitler. During the staged 2014 Crimean “referendum,” the Russians falsely framed the choice as “between Nazis or Russia.”

Thus began a colonial war between Ukraine’s future and Russia’s past. Putin is an imperialist who wants to rewrite history. He does not acknowledge an independent Ukraine, although Ukraine’s long national identity began long before Russia’s. Vladimir Putin sees Ukraine as an object, not the subject of history, and its citizens as people without human rights whose will must be broken to restore Russia’s empire.

And so began Ukraine’s “four wars.” The first, kinetic war began on February 24, 2022, as a “shock-and-awe” campaign designed quickly to bludgeon Ukraine into submission. Looking back, it was no surprise that Putin decided to invade. He saw democracies in disarray. He saw a United States in turmoil after the January 6th Capitol attack, under former President Donald Trump. He saw a United Kingdom that had “brexited” Europe under Prime Minister Boris Johnson. He saw a Europe enmeshed in crisis, with the rise of authoritarians in Hungary, Poland, and Turkey. He saw Ukraine outside of NATO, led by Volodymyr Zelenskyy, an untested leader – a comedian no less – which looked ripe for invasion. He saw a weak NATO, that he thought could be “Finland-ized” if Russia showed strength. But Putin badly miscalculated. What he got instead was the “NATO-ization of Finland” and Sweden. He thought he had superior hard power, but underestimated Western unity and sanctions and relied too heavily on conscripts.

When his shock-and-awe initiative failed, Putin settled in for a punishing war of atrocity, aggression, and attrition, focused on the Donbas, port cities, and Crimea. He bombed train stations, maternity hospitals, schools, and orphanages. He combined a strategy of up-close brutality in places like Bucha with indiscriminate shelling from afar, and employed an illegal diplomatic strategy of annexation, which the U.N. General Assembly condemned by an overwhelming 143 votes. But Putin failed to realize that Russia had become a twentieth-century Goliath attacking a twenty-first century David. As stiff multilateral sanctions against Russia and high-tech military aid for Ukraine kicked in, Putin was forced to change the way he fought the war. He used up his ammunition early and could not easily replenish with modern weapons. As the war wore on, he began to depend on increasingly obsolete materiel. Ukraine stayed agile and flexible with high-tech weapons, playing the equivalent of a “full-court press” in basketball. Putin was still playing, but not the game he wanted to play. But the downside of a full-court press defense is that, over time, it exhausts both sides until one side finally gives out.

Ukraine’s second, virtual war began one day before the kinetic attack, when Russia launched a coordinated cyber attack on forty-eight Ukrainian entities, spreading malware. But Ukraine responded by creating partnerships with private “ICT allies” (information and communication technology) like Microsoft and others, spreading digital assets across cloud servers in Europe. These private allies used artificial intelligence to detect breaches of Ukraine’s cybernetwork and install corrective patches as endpoint protection. Elon Musk gave Ukraine access to his Starlink satellite, so Ukraine never lost internet connection. Private cell phone companies granted universal roaming, and Ukraine’s grid never went down. So even as an embattled nation scattered to bomb shelters across the major cities, Ukrainians and their government remained in constant communication. At the same time, Putin launched a comprehensive disinformation campaign that largely failed, simply because younger people who ignored his propaganda used social media to grasp what was really happening at the front.

Once Ukraine stalled Putin’s kinetic war and blocked his cyber and disinformation war, a third war, the legal counteroffensive, began: two cases before the ICJ; two before the Law of the Sea Tribunal and the Permanent Court of Arbitration; five cases before the European Court of Human Rights in Strasbourg; preliminary investigations at the International Criminal Court that have ripened into arrest warrants for high-ranking Russian officials including Putin; domestic prosecutions by the Ukraine Prosecutor General; a WTO trade and transit case; and international commercial arbitrations about expropriation of Ukrainian assets and various nationalized entities yielding billions of dollars in as-yet uncollected judgments.

Fourth and finally, Ukraine is fighting a war of ideas. That war pits the idea of Kantian global governance – that the law of nations, as Immanuel Kant said, shall be founded on a federation of free States sharing democratic values – against George Orwell’s dystopian vision of global spheres of influence in 1984. The Orwellian vision is championed by authoritarians around the world who attack courts, oppose diversity and inclusion, demonize immigrants, cow legislators, disparage bureaucrats, attack the media, reward their cronies, and call for populism to trump constitutional checks and balances.

So this has become a battle between Russia’s past and Ukraine’s future. Putin claimed that history predetermines the present, forcing Ukraine back into Russia’s empire. Ukraine said this is about the future, cutting off from Russian energy, moving to renewables, achieving full independence, alliance with Europe, and joining European supply chains. And while Putin wanted to refight World War II against “fascists,” he became a fascist himself. Meanwhile, Ukraine keeps fighting for the right to choose its own leaders. So, this struggle has become about whether an autocratic regime can destroy a new democracy by force or whether global democracies can work together, as Kant hoped, to save a fledgling democracy.

President Zelenskyy put it in those terms when he came to the U.S. Congress in December 2022. Putin dismissed him as an entertainer, but no one fully appreciated how media savvy Zelenskyy is: a modern-day Winston Churchill with a Zoom connection. Zelenskyy told the U.S. Congress: “This struggle will define in what world our children and grandchildren will live and whether it will be a democracy for all. . . . The restoration of international legal order is our joint task,” which also happens to be the joint task of the American Society of International Law and the Ukrainian Association of International Law.

So Russia wants Ukraine back in the USSR, while Ukrainians insist that they can get by with a little help from our friends. Russia wants to regain its lost empire; Ukraine survived the Ottoman and Russian Empires and won’t go back. Russia’s tools are force and hard power; Ukraine resists with smart power alliances, democracy, and international law. Russia uses aggression and atrocity; Ukraine uses law and diplomacy. Russia wants to treat this as a local colonial struggle; Ukraine treats this as a global struggle. Russia’s short game is force; Ukraine’s long game is law.

2. Ukraine’s Grand Strategy

Ukraine responded to Russian aggression with a five-part grand strategy: (1) information; (2) illegality; (3) isolation; (4) diplomacy, in search of what I call an “accelerated Dayton”; and (5) accountability, or the quest for a “fragmented Nuremberg.” Element one is information: use open sources to show that Russia’s actions are pervasively illegal. Second, isolation: through economic warfare, make Putin an isolated outlaw in an interdependent world. Third, illegality: brand illegal all the actions of Putin and his underlings and cronies, furthering their isolation. Fourth, diplomacy: motivate a comprehensive process of peace negotiations that hopefully will unfold faster than the many years that it took finally to end the Bosnian war through the Dayton Peace Accords. Fifth, and finally: accountability. Unlike at Nuremberg, few defendants are in captivity and there is no victor, hence not even victor’s justice. Instead, Ukraine must pursue a “fragmented Nuremberg,” asking how best to preserve criminal and civil accountability in an array of domestic and international forums.

To prove illegality, Ukraine invoked Article 2, the non-discrimination clause of Lauterpacht’s Universal Declaration on Human Rights, suing Russia before the ICJ for race discrimination in Crimea, and for violating the International Convention for the Suppression of Financing of Terrorism in the Donbas. Before the Permanent Court of Arbitration (PCA), the same team brought a Law of the Sea arbitration challenging Russia’s comprehensive theft of Ukraine’s maritime resources, stealing Ukraine’s oil and gas, obstructing navigation, looting fisheries, and seizing cultural heritage and marine archeology while polluting the marine environment. To avoid liability, Russia tried and failed to get both cases thrown out for lack of jurisdiction. The ICJ’s merits ruling in January was the first case since the Court began in 1946 to find Russia in violation of international law.

After the full-scale invasion in February 2022, Ukraine harvested legal seeds of the Genocide Convention planted 75 years ago by Raphael Lemkin. By repeating the big lie, Putin outrageously claimed that Ukraine had committed acts of genocide in Donbas. On Putin’s lies, Ukraine founded jurisdiction. Ukraine replied that this created a dispute concerning “interpretation, application, and fulfillment” of the Genocide Convention that conferred jurisdiction on the ICJ. The ICJ agreed and concluded, over Russia’s objection, that it had jurisdiction. In requesting provisional measures, we argued that this case was not just about Russia-Ukraine, but about the future of international law. We said:

The tragedy we’re watching in. . . [Ukraine] is precisely what our modern international legal system was designed to prevent. If this Court does not act decisively against this level of aggression and atrocity . . . why should any Permanent-5 United Nations Member see international law as a meaningful obstacle . . . ? Then why would we not be forced to concede that the post-war international legal project has failed?

Just nine days later, the Court answered with a 13-to-2 provisional measures order that Russia should suspend all military and paramilitary operations in the territory of Ukraine. Soon thereafter, an American reporter called and asked me, “Isn’t it true that the ICJ cannot enforce its own ruling?” I recall replying this way:

No court in the world, including the U.S. Supreme Court, can enforce its own ruling. As our Supreme Court said in Marbury v. Madison, “it is the province and duty of the judicial department to say what the law is.” Now that the Court has dispelled the veneer of legality from Putin’s actions, it has empowered everyone to enforce its order, to stop Russian aggression, to sanction the perpetrators, and to bring them to justice.

The ICJ ruling thus helped implement Ukraine’s five-point strategy of illegality, information-sharing, isolation, accountability, and diplomacy. The Allegations of Genocide ruling likely helped keep China and India on the sidelines, by sending the message that supporting Russia’s actions would amount to aiding and abetting violation of the Court’s order. As Putin continued to play the force card, his isolation has grown. His former chef, Yevgeny Prigozhin, led a mutiny by the Wagner Group, which resulted, apparently, in Prigozhin’s assassination. But in Russia, unrest has grown about conscription, insubordination, and economic crisis. As Putin has become more isolated, Ukraine has strengthened its case for more sanctions, more accountability, and more diplomacy. By so doing, Ukraine’s grand strategy has aligned with that of the United States and the European Union.

When Ukraine returned to The Hague last September to argue against preliminary objections, we were joined by thirty-two intervenors, fellow Member States of the Genocide Convention, underscoring that this has become about Russia against the international legal order. As we put it, “May a powerful state falsely accuse its neighbor of genocide, then use illegal force to kill its citizens, devastate their homeland, and destabilize the global legal order on the pretext of preventing and punishing genocide?” We told the Court, “You are the guardian of the Genocide Convention. This case will help define the scope of the Court’s power to stop the flagrant abuse of the world’s most important human rights treaty.” Once again, Russia tried and failed to get the case thrown out on jurisdiction. In the Terrorism Financing merits judgment, the Court declared that “it is well established in international law that the ‘breach of an engagement involves an obligation to make reparation in an adequate form.’” So Ukraine can now proceed to the merits in the Allegations of Genocide Case, to prove that Russia has invaded based on a lie, and flagrantly violated the Court’s unambiguous provisional measures order.

3. What International Lawyers Should Now Do 

What must we now do, as we seek an endgame? Will we have diplomacy backed by sanctions? Will we build on the grain deal? Will we develop the necessary procedures for Ukrainian peace? How much of President Zelenskyy’s ten-point plan, which includes restoration of justice, will be adopted?

Our greatest task is constructive. We cannot ensure rights without a blueprint for legal architecture. Eleanor Roosevelt would pray every night, “Show me a vision of a world made new.” It is not enough just to maintain reverence for these historic treaties or to vindicate individual violations. We have arrived at a new architectural moment. As Ukraine’s soldiers fight and its diplomats seek openings, we lawyers must reimagine legal architecture. What war destroys, the law must rebuild. That is what Franklin Roosevelt said in his 1941 Four Freedoms Speech: to protect freedom of speech and religion, we need a Universal Declaration of Human Rights and an International Covenant on Civil and Political Rights; to ensure freedom from want, an International Covenant for Economic, Social and Cultural Rights; to offer freedom from fear, a Genocide Convention, a Torture Convention, a Refugee Convention.

Our “to-do list” is daunting. As this conference has surveyed, we must design an improved legal architecture of resilience and recovery for deported children, sovereign immunity, smarter sanctions, newly liberated territories, law and development, and post-war migration and the inclusion of displaced people. We need to build an “accountability ecosystem,” not just for ICJ judgment enforcement, but for civil accountability – accessing frozen assets, creating a workable compensation mechanism – and criminal accountability that ensures complementarity and coordination between the ICC and national courts to address atrocities like filtration and child stealing, not to mention a viable tribunal to try the crime of aggression.

In the end, the late former U.S. Secretary of State Madeleine Albright got it right. She thought the Ukrainians could prevail if we stick with them. Law has helped Ukraine match Russia’s hard power with soft power, partnerships, technology, and legal wins. But can law get us further, as the stakes grow higher? As Timothy Snyder put it, a Ukrainian victory would confirm the principle of self-rule, allow European integration to proceed, and let people return invigorated to other global challenges. A Russian victory would extend genocide, subordinate Europe, starve Africa and Asia, and strengthen fascists and tyrants. This war is about nothing less than the possibility of a democratic future under law. If those are the stakes, how can we be bystanders?

Because Putin’s short game is force, our long game must be law. We must be in this for the long haul. We cannot give in to compassion fatigue. We need to keep the aid flowing. We must continue our moral support. We must keep Ukraine in the news and not let it be overshadowed by other crises. And we cannot just let Putin delay until another president or Congress comes in to let him win his victory later, because the United States could not stay the course.

The long game demands that each generation pass its passion and wisdom to the next, so we international lawyers must be in this for the long haul. But that has already happened. To honor Hersch Lauterpacht, Cambridge University created the Lauterpacht Center for International Law, where I was lucky enough to study. Lemkin became a visiting professor at Duke and at Yale, where I teach. Louis B. Sohn taught the principles of the U.N. Charter and the Law of the Sea to my late father, Kwang Lim Koh, who taught them to me, who passed them on to my nephew Professor Steven Arrigg Koh; he now follows the path of domestic and international criminal law, which brought him here to this conference in Lviv.

Most fundamentally, we need to teach our students a world apart to keep speaking the common language of international law. A week before I judged the Jessup moot court in Kyiv, I  judged the Yale Jessup team in New Haven: the same students, speaking the same language of international law, citing the same cases. And so, my answer to Tata’s question: the international law we believed in is all around us. Lawyers around the world are practicing it, and students around the world are studying it. As the Kyiv moot court ended and all the past Ukrainian winners came forward, I asked them, “What are you doing now?” They all answered: “I’m suing the Russians: at the prosecutor general’s office, bringing arbitrations; at the Foreign Ministry. We’re fighting force with law.” As Tata put it on social media, “Dear Mr. Koh, let us battle a little bit on the ground, and then we’ll be back to the Ukrainian international law army.”

In the end, that is why we came to Lviv. To honor history and commit ourselves to an architectural project so that, as Seamus Heaney put it, international lawyers can make “[t]he longed-for tidal wave of justice … rise up, and hope and history rhyme.”

IMAGE: Photo via Getty Images. 

The post Where is the International Law We Believed In Ukraine? appeared first on Just Security.

Author’s note: Harold Hongju Koh, Sterling Professor of International Law and former Dean at Yale Law School, served as U.S. State Department Legal Adviser and Assistant Secretary of State for Democracy, Human Rights and Labor. He currently advises Ukraine’s Ministry of Foreign Affairs on international law matters. This post reflects his views and not necessarily those of any institution with which he is now or has been affiliated.

Two long years ago, Russia launched its brutal campaign of aggression and atrocity against Ukraine. That full-scale invasion has now killed more than 30,000 Ukrainians, displaced more than 10 million, and destroyed more than $400 billion of civilian property and infrastructure. The United States and its partners responded by freezing some $380 billion in Russian assets, committing not to return them until after Russia pays for the damage it has caused. Yet despite protracted public debate (including here, here, here, here, here, here, here, here, here, and here), NATO allies have hesitated to take the obvious next step: liquidating Russia’s frozen assets to induce it to end its nakedly unlawful invasion and to compensate Ukraine for its grievous losses. Policymakers have hidden behind the fiction that such a step would pose a “legal problem.” International lawyers have needlessly complicated a straightforward legal issue.

The case for seizing frozen Russian assets is simple. Russia, not Ukraine, should bear the costs of its unprovoked war. Russia’s gross illegality has unjustly enriched Russia, impoverished Ukraine, and imposed huge costs on their neighbors and allies. To help end the ongoing illegal aggression and atrocity, coalition partners are legally entitled to take the next step: liquidating those frozen sovereign assets. Despite some objections, the international law doctrines of countermeasures and sovereign immunity pose no legal barrier to their taking that step.

For centuries, international law has recognized as lawful “countermeasures” otherwise illegal measures of individual and collective self-help that law-abiding countries may take to induce ongoing violators to end illegal action and return to compliance with their legal obligations. The law of countermeasures has been endorsed by the U.N.’s highest judicial body, the International Court of Justice, and the International Law Commission, the body of independent experts responsible for codifying rules of international law. Law-abiding countries have regularly invoked this doctrine to induce compliance with the rules of aviation, trade, and security. In 1983, after Russia illegally shot down Korean Air 007, third-party States applied lawful countermeasures to deny landing rights and suspend air services to induce Russia’s payment of reparations. Far from denying this body of international law, the Kremlin has cynically claimed to be applying countermeasures doctrine to justify illegal retaliatory counter-sanctions against the private property of “unfriendly” investors in Russia.

Collective countermeasures have been found particularly appropriate when taken by specially affected countries or in response to a nation’s violations of legal obligations owed to all other nations (so-called erga omnes obligations). Russia has committed such violations by flouting its international legal duties to abstain from aggression, war crimes, and failure to pay reparations. Russia’s unlawful invasion of Ukraine has created an exceptional threat to the peace and security of the international order. Russia has committed the most egregious campaign of aggression and atrocity in 75 years. More than 140 member States of the U.N. General Assembly initially voted to condemn the invasion, and a follow-on resolution demanded that Russia “must be held to account” for its gross violations of international law in and against Ukraine, including making “reparation for the injury, including any damages.” Less than a month after the invasion, the International Court of Justice overwhelmingly issued a binding provisional measures order directing Russia to “immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine,” which for two years Russia has blatantly ignored. Last December, the G7’s leaders resolved to “explore all possible avenues to aid Ukraine in obtaining compensation from Russia, consistent with our respective legal systems and international law.”

One such avenue is charted by the International Law Commission’s (ILC’s) Articles on the Responsibility of States for Internationally Wrongful Acts (Articles 36, 42, 48-49, 50, 52): affected States may take “such urgent countermeasures as are necessary to preserve its rights” to induce Russia to stop its ongoing campaign of aggression and atrocity. Lawful countermeasures would include third parties’ “non-performance for the time being of international obligations” normally owed to Russia, so long as those States give notice insisting that Russia perform its recognized legal obligations, offer to negotiate Russian compliance, and continue complying themselves with all other applicable obligations under international law.

The ILC’s Articles would authorize temporary, proportionate, and reversible lifting of the sovereign immunity traditionally accorded to Russian central bank assets to induce it to end ongoing violations of international law. International law does not mandate that protections of absolute sovereign immunity be given to aggressor nations who show their contempt for sovereignty by blatantly attempting to rewrite sovereign borders. As proof that it did not, coalition partners effectively denied such a constraint by imposing a worldwide freeze on Russian central bank assets starting two years ago. Historical precedent shows that any sovereign immunity constraint on national judicial action would not bar multilateral executive action to deny central bank immunity as a lawful collective countermeasure. Executive re-designation of those who may control central bank assets does not violate sovereign immunity. When Iraq invaded Kuwait in 1990, America and European countries placed Iraqi State assets into a compensation commission fund to compensate Iraq’s victims for loss and damage caused by Iraq’s unlawful invasion. In August 2021, the United States similarly created an Afghan Fund incorporated in Switzerland to prevent central bank assets from falling under Taliban control. The British government similarly allowed the Guaido, and not the Maduro, government to gain access to Venezuelan central bank assets in London.

Nor, having started and executed a blatantly illegal war, can Russia now hide behind the claim that central bank assets enjoy sovereign immunity from the reach of domestic courts. Sovereign immunity doctrine was not designed to license Putin to violate Ukraine’s sovereignty with aggression, war crimes, and mass murder, then turn around and invoke Russia’s “absolute” legal protections as a sovereign actor. ILC Article 50 pointedly excluded sovereign immunity from the list of fundamental norms of international law that a lawful countermeasure “shall not affect,” because including it would constitute a “quasi-prohibition of countermeasures.” National courts in Belgium and Sweden have recently moderated sovereign immunity when central bank assets are used in ways inconsistent with central banking functions. Temporarily lifting the sovereign immunity of Russia’s frozen assets would similarly warn States not to expect absolute immunity from domestic courts when they would use those assets to fund massive blatant war crimes and aggression.

Here, Ukraine’s compelling and exceptional circumstances justify piercing Putin’s veil of immunity, not to impose punishment or litigate past grievances, but to end its unlawful aggression and atrocity. Temporary and reversible abrogation of Russia’s sovereign immunity would respond proportionately to Russia’s aggression and atrocity and refusal to pay reparations for its illegal destruction. Under Article 51 of the U.N. Charter and customary international law, the violation at issue—an unlawful armed attack on a neighboring sovereign State—is so serious as to confer a right on third States to use force as a measure of collective self-defense.

A fortiori, those States may exercise the lesser right of temporarily abrogating sovereign immunity to tap frozen Russian assets. The reversible step would be suspending sovereign immunity, which could be reinstated once Russia returns to compliance. ILC Article 49 only dictates that countermeasures should be reversible “as far as possible,” and the accompanying commentary acknowledges that “[it]t may not be possible in all cases to reverse all of the effects of countermeasures after the occasion for taking them has ceased.” Such countermeasures as suspending air services are similarly reversible, inasmuch as air services can be reinstated, even if canceled flights or other permanent consequences of the countermeasure cannot be undone. For two years, affected States have unsuccessfully tried other means to induce Russia to return to compliance. Having exhausted other avenues, they now have little choice but to turn to the remaining available countermeasure that is both lawful and effective.

Putin’s manifest lack of respect for foreign sovereignty has caused untold damage. The ILC’s Articles place Russia “under an obligation to compensate for the damage caused thereby.” States holding his frozen assets may thus lawfully ignore his claimed sovereign shield to force him to face financial liability, to discourage other would-be aggressors from doing the same. G7 leaders have already said Russia must cover Ukraine’s damages before any leftover assets may be returned. By starting to relinquish funds to Ukraine, Russia would simply be making a down payment on a massive war reparations debt it would be legally obligated to pay anyway, at war’s end. If Russia refused to pay reparations, it would only constitute another illegal act warranting more collective countermeasures directed against frozen assets. Temporarily lifting sovereign immunity to leverage frozen assets could help force Russia to the bargaining table and finally give it the incentive necessary to start negotiations to end this war.

In sum, no legal obstacle exists to seizing frozen Russian assets to induce the end of ongoing aggression. As a first move, Congress could enact the currently pending bipartisan REPO Act, which would grant the president express, limited, time-bound authority to use the Russian sovereign assets. The REPO Act would authorize the president acting alone, without judicial intervention, to “confiscate” Russian government property in the United States and transfer it to a parallel Ukraine Support Fund. Congress also could amend current U.S. law explicitly denying sovereign immunity to a State that violates international law by engaging in expropriation to cover today’s extreme facts. European States holding frozen assets could then join in, starting with the plainly lawful step of using frozen assets as collateral to generate funds to support Ukraine, pending resolution of the conflict. Short-term lifting of sovereign immunity on Russian assets within several jurisdictions should not trigger a flight from any reserve currency if all States holding frozen assets collectively start liquidating together. Nor would collective liquidation of Russian frozen assets license developed nations to play by a different set of rules. Instead, it would simply ensure that all nations adhere to primary obligations of international law and hold themselves to the same principled limits on the use of countermeasures.

Last week, the Biden administration responded to the horrific death of Russian opposition leader Alexei Navalny by imposing a new wave of economic sanctions. But what Putin really fears is the coalition acting collectively against frozen Russian sovereign assets. That policy option is plainly lawful. The real question now is whether policymakers have the courage to exercise it.

IMAGE: Banknotes of the Russian ruble or rouble, the official currency of the Russian Federation, photographed on April 20, 2022 in London, England. (Photo by Peter Dazeley/Getty Images)

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