Today on Lawfare: April 17, 2025

From The Lawfare Editorial Team

Compiled by Caroline Cornett

Articles

The New Transparency Rules and the El Salvador Detention Agreement

Curtis Bradley, Jack Goldsmith, and Oona Hathaway explained why a 2022 statute mandating transparency for certain executive agreements could force the government to disclose any agreement between the United States and El Salvador related to the detention facility.

Under the 2022 transparency rules, the executive branch has transparency duties for both binding and nonbinding agreements. With respect to binding agreements, it must disclose them to Congress on a monthly basis and publish them within 120 days after they enter into force. As far as we know, the executive branch has not yet disclosed the agreement to Congress.

It is possible that the executive branch views the agreement as not legally binding. But even if so, it still has a duty under the statute to disclose and publish nonbinding agreements if they “could reasonably be expected to have a significant impact on the foreign policy of the United States.” The State Department’s regulations specify that among the factors to be considered in determining whether an agreement is covered include “whether, and to what extent, the instrument . . . affects the rights or responsibilities of . . . individuals in the United States; . . . and is of Congressional or public interest.” An agreement to house a large number of migrants removed from the United States to a notorious supermax prison in another country plausibly meets this standard.

The Shapiro Attack and the Growing Risk of Partisan Extremism

Daniel Byman and Riley McCabe discussed how the April 13 arson attack on Pennsylvania Gov. Josh Shapiro’s residence as part of a growing wave of violence directed at politicians and government figures highlights the danger of partisan extremism and jeopardizes political stability.

It is useful, if painful, to consider what would have happened if the attack on Shapiro, Trump, or another politician succeeded. We would not come together as a nation in grief. Immediately, partisans would blame the other side, noting how their political opponents’ incendiary rhetoric fostered a climate of hate. Those in government could use the attack to justify greater domestic surveillance, declarations that a zealous political movement like antifa on the left or the Patriot movement on the right should be treated as a terrorist group, and other extreme measures. The attack would also foster conspiracy theories, as people speculate about why a prominent and supposedly protected individual “was allowed” to be killed.

Overcoming the Tucker Act After Department of Education v. California

Daniel Jacobson and John Lewis examined whether Administrative Procedure Act (APA) litigation over termination of federal contracts and grants lies within the jurisdiction of district courts or the Court of Federal Claims (CFC)—as the Tucker Act and the Supreme Court's recent decision in Department of Education v. California suggest—and highlighted alternative strategies plaintiffs can use to bring APA claims in district court.

Notwithstanding California, there remain ways that litigants can surmount the administration’s Tucker Act defense. In particular, litigants might try two strategies. First, they might assert nonstatutory causes of action based on constitutional or statutory violations. Such claims do not rely on the APA’s waiver of sovereign immunity at all, and the CFC would typically lack jurisdiction to hear the claims because the relevant constitutional and statutory provisions are not “money-mandating.” Second, where the government’s award terminations result in entirely or almost entirely shutting down a congressionally mandated program, litigants might challenge the shutting down of the program—rather than the individual award terminations—as the relevant agency action for APA purposes. The remedy for such a challenge would be to compel the government to issue new awards to operate the program, even if the grantees whose awards were terminated are not guaranteed to receive the new awards.

The Programmable State: The e-CNY and China’s Quest for Smarter Surveillance

In a new report for Lawfare’s Research Initiative, Yaya J. Fanusie and Emily Jin argued that U.S policymakers must take measures to reduce the influence of the e-CNY—China’s central bank digital currency—due to the substantial surveillance and privacy risks it poses.

The Chinese Party-state’s aggregation of financial data and its integration with social monitoring present significant risks of governmental abuse.Through a thorough analysis of e-CNY pilots, this article offers a glimpse of how an authoritarian government can use “intelligent” finance to tighten its control over the population. The Party-state’s ambition to expand and promote this model warrants vigilance by democratic nations. By reviewing PBOC statements and the domestic Chinese financial press reports, and national strategy documents outlining China's economic and technological vision, the article frames the implications of China’s e-CNY efforts for U.S.national and economic security. It also explores the role of financial technology giants like Ant Financial and Tencent in the Party-s State’s state-directed public-private coordination, highlighting the province- and city-level implementation strategies used to bring the e-CNY to users.

The Situation: Vindicating the Semblance of Due Process

Benjamin Wittes reacted to Judge James Boasberg’s opinion in J.G.G. v. Trump—which finds there is probable cause to find the government in criminal contempt—and considered where the case might go from here.

But damn it, he’s doing it anyway, because he’s a federal district judge, and the government defied his order, and Stephen Miller thinks that the administration’s gamesmanship with the most basic principles of the rule of law is just oh-so-clever, and the judge—with impeccable calmness and civility—is going to do everything in his power to remedy that, full well knowing that there are limits to his power, but knowing that his job is to make sure that someone asks every proper question, issues every reasonable order, and pulls on every available lever to vindicate that semblance of due process.

Lawfare Daily: Roger Parloff and Anna Bower Talk Abrego Garcia: Anna Bower and Roger Parloff joined Wittes to debrief an April 15 hearing in the case of Kilmar Abrego Garcia, the man deported by accident to a notorious prison in El Salvador.

Videos and Webinars

On April 18 at 4 p.m. ET, Wittes will speak to Bower, 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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