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.

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?

I can’t overstate how entirely untethered to the constitution and past practice this unilateral move to repurpose funds to pay for military pay is. The commander-in-chief clause has precisely 0 bearing on the ability to expend funds. Here’s a list of authorities that do:

Huge thanks to @gtownnatsec.bsky.social @realtoddhuntley.bsky.social for publishing my piece tracing what Trump II is doing with domestic military deployments to statutory changes made at the outset of the war on drugs in the 1980s. Lots of great pieces by others as well!

In light of Judge Immergut's ruling, there's a lot of noise today coming from the President's advisers and supporters about courts not having the power to provide prospective relief against domestic uses of the military. Via "One First," me on the rather significant early precedent to the contrary:

On the deployment to Portland, I don’t have much to add beyond noting again that the theory of implied power the president is relying on is incredibly vague, unmoored from constitutional text, and extremely prone to abuse. I wrote about these and other problems soon after the LA deployment.

My horizons broaden every time I read a piece by my amazing UHLC colleague Andrew Lanham (who is unfortunately not on here—or anywhere). Just incredibly deep and rich insights at the intersection of social movements, racial justice, and national security from a fantastic legal historian.

I've read and coded every War Powers Report ever sent to Congress (check them all out, with interactive graphics and a searchable database 👇), and this one on #Trump's attack on an alleged drug smuggling vessel in the Caribbean stands out. I'll explain below: warpowers.lawandsecurity.org

Many thanks to the team at @lawfaremedia.org for running this piece! The bench trial in Newsom v Trump uncovered really important facts about the military deployment in LA. But I found significant aspects of Judge Breyer's analysis of these facts pretty confusing.

Sure would be nice if federal judges coordinated when they release opinions with my kid’s doctors appointment schedule. But for now will just say that judge Breyer masterfully pieced together a factual record in what will some of the most consequential PCA litigation we’ve seen in decades.

Yet more evidence why the executive branch’s theory of the protective power is so susceptible to abuse. There’s no evidentiary minimum that’s ever been asserted as legally required — just a swinging sword of Damocles hanging over any location with a federal presence.

Many thanks to @lawfaremedia.org and @tylermcbrien.com for getting this posted so quickly! Although there are still questions about mission scope, rules for the use of force, and more, in many ways the damage has already been done. A totally antiquated area of law especially susceptible to abuse.

Lots of crucial details still needed on the forthcoming DC Natl Guard deployment in DC. But based on what we already know, two paths seem to be at play. Once again, incredibly old and over broad statutory text and maximalist exec branch practice conspire to give Trump a sad amount of runway here.

Ok I don’t normally post this kinda thing but really this is too perfect. Article 1? Never heard of her.

Now for something completely different! My first love is international law. This past spring the Houston J of Int'l Law asked that I give a talk to their members, which I've turned into an essay about why students should take an international law class. Draft is on SSRN and I'd love feedback.

UH Law Center is hiring this year! - 3 entry-level, TT in crim, employment/labor, & torts - 1 clinical in lawyering skills - 1 tenured position in health law Teach fantastic students with supportive colleagues! Reach out with any Qs!

Again great to work with @lawfaremedia.org on this deeper dive into how the "big, beautiful bill" will expand DoD's already significant domestic operations, particularly at the border and to abet deportations. Another in the litany of bad appropriations law news these days.

Rightfully lots of focus on DHS approps in the bill passed yesterday. But there’s also shocking approps to DoD, like this $1B to be used over the next 4 yrs. It funds:

No one knows the international law regarding statelessness better than @melissastewart.bsky.social. An essential read for those looking to understand the implications of implementing the birthright EO.

HAPPENING NOW: Judge Charles Breyer is presiding over a hearing in Newsom v. Trump -- the first hearing in the district court following the Ninth Circuit's order allowing Trump to mobilize the national guard in California. Follow along🧵⬇️

NEW: The Ninth Circuit Court of Appeals has granted an administrative stay of Judge Breyer’s order — a move that puts the order on pause, allowing continued deployment of the national guard. Two Trump judges and one Biden judge on the panel.

A federal judge has issued a temporary restraining order (TRO) requiring Trump to return control of the National Guard to CA Governor Newsom. The order is accompanied by a powerful opinion that affirms the rule of law, separation of powers, and the First Amendment. 1/23

HAPPENING NOW: A federal judge is set to hold a hearing on Governor Gavin Newsom’s request for a temporary restraining order that would bar the Trump administration’s use of the state national guard amid protests against immigration raids in LA. Hearing starting now before Judge Breyer 🧵⬇️

Once more grateful to @lawfaremedia.org for running this deeper dive into the executive branch’s understanding of the protective power and why I think it rests on at least shaky constitutional grounds despite its long history. It’s a long one, but shorter than the law review article it’s based on!

It looks like much of today's CA hearing will focus on Sec 12406, but I wanted to flag just a few parts of DOJ's reply (linked) which were befuddling on the authority for the military's actions.

Last thing for today: domestic mil deployments are incredibly expensive and one of the most sig things Congress can do right now to reassert itself is to not fund the inevitable request for addtl approps that will be needed for this $134M+ deployment.

First want to thank folks for a truly overwhelming and warm welcome back to social media. My aim is to provide useful info on areas of law I know well, so I very much hope I can return to academic seclusion soon.

Many thanks to @lawfaremedia.org for running my analysis on such a quick turnaround. The theory of inherent pres power invoked last night is limited. I’ll have more on the tortured history of this assertion of pres power in the days to come.

I was off social media for a few yrs, but decided that it's time to come back after last night. I'm an asst. prof. at Uni of Houston Law Center and before that was an attorney at DoD OGC, where my portfolio included domestic military deployments. This continues to be a core part of my research.