Don’t have much to add on the many intl and domestic law issues with the Iran strikes. But I’ve been esp struck by allies circling the wagons to support them. Carney et al want to build a middle powers coalition nominally more wed to the intl rule of law. Now would be a nice time to stand up for it.
I also don't see how DHS had authority to do anything here. 10 USC 130i is specific to DoD protecting certain types of DoD facilities. DHS has a similar statutory authority, 6 USC 124n. And IT TOO is specific to DHS protecting DHS facilities.
Re-upping this thread in light of today's NYT on the El Paso shutdown. Seems clear that this is step 1 in a plan to use the literal militarization of the border to take down drones under 10 USC 130i w/o the FAA coordination that's required.
Update-Looks like the closure was about a new C-UAS technology. That a new technology was used without prior coordination with the Secretary of Transportation, as required by 10 USC 130i, is bad. Also looks like the new tech is for future use at these national defense areas.
There are real consequences to making the border one huge military installation. This seems like it's one of them. Have DoT and DoD not coordinated what to do about civilian airflights if DoD uses C-UAS near airports, as will now increasingly be the case? Seems not.
If Ft Bliss is a "covered facility," then this C-UAS authority now extends for a huge swath of the border that was once outside military control. And it would explain why this drone incursion was treated differently than others that seem to have occurred historically.
Back to the border, what was previously civilian fed land in & around El Paso was transferred to DoD, and since April 2025 has been operated as part of Fort Bliss. Fort Bliss is super important, including because it's HQ to the command coordinating military support to DHS at the southern border
I'm not aware of public list of these "covered assets or facilities," but do know that there's lots of contestation within DoD about whether enough bases are covered. A recent IG report found that implementation of 130i was uneven and that some facilities which should have been designated, weren't
DoD's statutory authority to use C-UAS in the US is 10 USC 130i. It authorizes (among other things) "us[ing] reasonable force to disable, damage, or destroy" UAS that poses a threat to the "safety or security" of a "covered asset or facility."
The facts are still in some flux, but a few thoughts on the FAA closing the El Paso airport, possibly due to DoD counter-drone (C-UAS) activity. Bottom line, I suspect this is related to the expansion of DoD-administered territory at the southern border, including around El Paso.
Economic coercion to take a people’s land against their clearly stated will. Pretty sure we can definitively say that today’s the day the transatlantic alliance died.
President Trump is once again threatening to invoke the Insurrection Act, this time in Minneapolis. That would be a flagrant and particularly dangerous abuse of the Act—one that would threaten the rule of law and public safety alike. 1/13
As always, many many thanks to @lawfaremedia.org for running this piece. The last thing we need right now is more potential bases for a domestic military deployment.
There's so been so much awful news lately. What feels like an eternity ago, the admin declared fentanyl a WMD. That EO invoked a little-known statute that is a statutory exception to the Posse Comitatus Act. Here I explain why any future use of that statute based on this EO would be absurd.
Really grateful to @jacklgoldsmith.bsky.social for having me on today for a discussion about the protective power and what’s to come after the Illinois decision.
I haven't seen public reporting on a consolidation or upending of USSOUTHCOM/USNORTHCOM command, but the existence of this NDAA language suggests pretty strongly that there must be ongoing discussions. Would have huge implications for command oversight of domestic deployments too (5/5)
This seems to follow on Army moves to consolidate the Army components of USSOUTHCOM and USNORTHCOM. But a move at the combatant command level would be really significant. And it's hard to not see some connection with who's pushing back on the boat strikes. (4/5)
Beginning of the text of the statute
Also see this restriction on using DoD appropriations to combine the responsibilities of the commanders of US Southern (which covers the Americas south of Mexico) and Northern Command (same but north of Mexico) or installing someone below a 4star general as commander of USSOUTHCOM (3/5)
Provision of NDAA requiring a report that would shed light on the military's boat strikes.
The requirement that an unclassified portion of the report be unclassified and made publicly available
The first is Sec. 1067, which goes requires a publicly available report addressing substantially all the international and domestic law questions you'd need to address in determining whether a strike is lawful. Required within 180 days of enactment (wouldn't hold my breath on it being on time) (2/5)
Provision of NDAA requiring that milk. be available at all military installation dinning facilities.
Happy NDAA-reading season, to those who celebrate. The House version contains nuggets like this requirement that the Pentagon make milk available at all military installations. But more interesting are two provisions relevant to the boat strikes done by USSOUTHCOM (1/5)
It was a real privilege (like, actually a ridiculous privilege!) to be invited by @mfroomkin.bsky.social to join his series on constitutional crisis. I got to chat with his fantastic students about domestic military deployments and make a few remarks introducing the mess that is this area of law.
Important and timely piece by @chrismirasola.bsky.social in today's @lawfare on why Trump couldn't deploy active-duty troops to perform security functions for ICE under a claim of inherent constitutional power to protect federal property/personnel/functions. www.lawfaremedia.org/article/conf...
The Solicitor General (unnecessarily) supplied SCOTUS with the administration’s first attempt to justify why POTUS can use the military without statutory authorization and notwithstanding the PCA. It’s wrong, as I explain here. Thanks to @lawfaremedia.org as always!
This is really excellent, detailed analysis on all the reasons why trump’s decision to pay the military in October is profoundly illegal. From @lawfaremedia.org and @bbkogan.bsky.social
Many thanks to @sfchronicle.com for running my this piece on Trump's blatantly unconstitutional move to pay the military during the government shutdown. If the President is usurping Congress's power to decide how funds are spent, what is left of the power of the purse? What is left of Congress?
Appropriations limitations are, in my view (see here) the most important limitation on the president’s use of the military. That they promise to rejigger funds after the lapse in approps is no help. It just shows that even they recognize how completely unlawful this is.
3. 31 USC 1301a: “Appropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law.”
I could go on! They even cite the last one in the NSPM!
1. Art 1, Sec 8, cl12: Congress shall have the power To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years
2. Art 1, Sec 8, cl13: Congress shall have the power to provide and maintain a Navy
