Today on Lawfare: April 16, 2025

From The Lawfare Editorial Team

Compiled by Caroline Cornett

Articles

A Trump Administration Plan to Crowdsource Deregulation?

Nick Bednar broke down the Trump administration’s apparent attempt to pursue deregulation on a massive scale by asserting unilateral authority to rescind regulations and inviting the public to submit suggestions to cut existing regulations.

Two recent events suggest that the Trump administration intends to expeditiously rescind existing regulations: (a) a constitutional argument that the president has authority to unilaterally rescind regulations without following the requirements of the Administrative Procedure Act and (b) a new online form that seeks to crowdsource the process of drafting these rescissions. When stitched together, the Trump administration has created a toolkit to rescind regulations without the required procedures of the Administrative Procedure Act or the involvement of the experts who understand the purpose of these regulations.

At the Mercy of Presidential Self-Restraint

Jack B. Greenberg and John A. Dearborn highlighted the difficulty Congress now faces in ensuring independence for officials they intended to be insulated from political pressure, citing President Donald Trump’s firings of the chairman of the Joint Chiefs of Staff, the special counsel, and more.

The Dellinger case thus brings a long-growing dilemma for Congress into sharp relief. As the courts increasingly adopt a formalistic conception of the separation of powers, Congress’s ability to address concerns about presidential power in legislation about appointments is curtailed, and correspondingly, its reliance on presidential self-restraint is increased. The Supreme Court’s ruling in Trump v. United States made this plain, holding that Congress is unable, “as a structural matter,” to regulate the actions of the president that fall within their “exclusive sphere of authority,” including executive branch removals. Given rulings like this one, it is unclear that Congress would succeed even if it sought stronger protections of the independence of key officials. For example, granting for-cause removal protections to IGs, a provision included in the Protecting Our Democracy Act legislation that had passed the House in 2021, would have likely been viewed with skepticism by the current Court.

Data Brokerage and the Third-Country National Security Problem

Justin Sherman explained how adversarial foreign actors exploit gaps in United States law to purchase sensitive information from data brokers or other intermediaries. Sherman critiqued the U.S.’s current approach of restricting direct sales of data and called upon the government to develop more robust privacy legislation and data restrictions that close the gap.

But this latest story underscores all the possible directions in which brokered data can flow—a U.S. broker buying data on U.S. persons from a European advertising technology vendor; hypothetically, a Singaporean firm sourcing location data that it sells from apps in Latin America, encompassing travelers from many countries; or any other myriad possibilities involving different buyers and sellers in different countries, in variable numbers of transactions, with different types of data related to different people. Therefore, the government’s focus on direct sales to a few countries creates the opportunity for ill-intentioned foreign actors to buy Americans’ data indirectly through a series of transactions, which circumvents programs designed to look (again, importantly) just at direct sales and transfers involving a few previously identified adversaries. It’s a significant gap. To address this issue, Congress should implement restrictions on the sale of many kinds of data, on all Americans, to any buyer, to clamp down on the unwieldy data supply chain enabling this significant risk to national security.

Lawfare Daily: Mexican Cartels and American Guns: Natalie Orpett sat down with Jonathan Lowy and Chantal Flores to discuss the recent oral arguments in Mexico v. Smith & Wesson, in which Mexico seeks to hold U.S. gun manufacturers accountable for cartels' use of American weapons. They talked about the flow of U.S.-made guns into Mexico, how it relates to cartel violence, and the complicated legal and policy context around Mexico’s case, and more.

Videos and Webinars

On April 18 at 4 p.m. ET, Benjamin Wittes will speak to Anna Bower, Roger Parloff, Quinta Jurecic, and James Pearce about the status of the civil litigation against President Donald Trump’s executive actions, including Judge James Boasberg's finding of probable cause for contempt in the Alien Enemies Act case. If you would like to be able to submit questions to the panelists and watch the livestream without ads, become a material supporter of Lawfare on Substack or Patreon. It will be livestreamed on YouTube for all other viewers. Find the livestream here. If you can’t attend the live event, the recording will be available immediately afterward on Lawfare’s YouTube channel or later on the Lawfare Podcast feed.

Announcements

On Wednesday, April 23, at 6:30 p.m. ET, Tyler McBrien, Anastasiia Lapatina, Brigadier Gen.(ret.) Kipling V. Kahler, and Emily Horne will join Sasha Ingber for an in-person discussion about the intelligence and diplomatic failures that led to Russia’s invasion of Ukraine. They will talk about Lawfare’s narrative podcast series Escalation, what intelligence in Ukraine looks like today, the turning point Ukraine faces under Trump, and what lies ahead for Ukraine. Register for the in-person program at the International Spy Museum here. Register for the virtual program on Zoom here.

Lawfare is now accepting applications for our Summer 2025 internship program! Learn how to apply here.

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