Today on Lawfare: July 7, 2025

From The Lawfare Editorial Team

Compiled by Mary Ford

Articles

The Government’s Astonishing Constitutional Claims on TikTok

Alan Rozenshtein responded to the release of U.S. Attorney General Pam Bondi’s letters to major American tech companies about continued business with TikTok. Rozenshtein argued that the battle over TikTok presents a rule-of-law crisis, as the Department of Justice has advanced an expansive interpretation of presidential authority to rationalize the extension of the TikTok ban deadline in the United States.

But the primary, and more constitutionally audacious, argument advanced in the letters is a claim of sweeping Article II power. According to Bondi, the president determined that an “abrupt shutdown” of TikTok would “interfere with the execution of the President’s constitutional duties to take care of the national security and foreign affairs of the United States.” On this basis, the attorney general “concluded that [PAFACAA] is properly read not to infringe upon such core Presidential national security and foreign affairs powers.”

A Better Way to Talk About Risk

In the latest installment of Lawfare’s Foreign Policy Essay series, Kim Cragin acknowledged that the United States is willing to accept certain risks from Russia, Iran, North Korea, and terrorist groups in order to focus energy on deterring Chinese aggression, and considered the U.S.’s current approach to assessing threats such as extremism.

It may seem like a throwaway phrase, “accept risk.” It’s not. If risk is the potential for something bad to happen, then the United States is accepting that something bad might happen elsewhere to prevent something bad from happening in Asia. One of those “elsewheres” could be the homeland. The U.S. military has played an instrumental role in disrupting terrorist attacks against the West since 9/11. A shift away from countering terrorism logically increases the risk of such an attack. It might be possible to alleviate some risk through heightened border security. However, these trade-offs have yet to be fully explored.

The FBI’s Dangerous Failure to Adapt to the Digital Age

Susan Landau explained that—as demonstrated by a recent Office of the Inspector General report—the Federal Bureau of Investigation (FBI) isn’t sufficiently prepared to respond to ubiquitous technical surveillance concerns, a vulnerability that has enabled foreign adversaries to exploit advancing technology and expose operations.

U.S. adversaries have turned the highly networked world the U.S. has built against it. Iranian hackers exploited data from Israeli home security cameras to improve missile targeting. The Russians used a similar technique in targeting sites in Kyiv. These foes may lack the ability to create new technologies, but they’re every bit as capable of exploiting the technology the U.S. developed. And now they’re playing David to the U.S.’s Goliath. Yet despite the 2011 loss of informants in Beirut, the current Iranian use of Israeli home security cameras, and all the examples in between, the FBI does not seem to have learned its lesson.

War and Responsibility: Why the U.S. Doesn’t Have an Imperial Presidency

Patrick Hulme maintained that the “imperial presidency” thesis—the notion that the executive has amassed ever-increasing power such that the will of Congress is bypassed—falls short in explaining the “war-making” power. Hulme emphasized that war-making is a place where executive authority reaches its limits, using data from previous administrations to support his analysis.

In a newly published piece (“War and Responsibility”) for the American Political Science Review, however, I argue that when it comes to this most core power of the thesis—the war-making power—the imperial presidency falls short. I submit, instead, that the current understanding of the war powers status quo has long been, at best, incomplete, and filled with substantial misunderstanding. In contrast to widespread pessimism toward congressional influence over use of force decisions, I argue that Congress has been exerting considerable constraint on the executive all along; political scientists and legal scholars have just been looking for its influence in the wrong places.

Lawfare Daily: The Offensive Cyber Industry and U.S.-China Relations with Winnona Bernsen: Winnona Bernsen, nonresident fellow at the Atlantic Council’s Cyber Statecraft Initiative and founder of DistrictCon, joined Lawfare Contributing Editor Justin Sherman to discuss Bernsen’s most recent report, “Crash (Exploit) and Burn: Securing the Offensive Cyber Supply Chain to Counter China in Cyberspace,” the U.S. offensive in the cyber industry, and more.

Announcements

In partnership with the University of Texas School of Law, Lawfare Senior Editor Kevin Frazier and Rozenshtein launched their new podcast series Scaling Laws, a podcast dedicated to navigating the complexities of artificial intelligence. Listen to the inaugural episode here, where they discuss the defeat in the Senate of a proposed moratorium on state and local regulation of artificial intelligence.

The Trials of the Trump Administration, our coverage of President Donald Trump’s executive actions and their legal challenges, now includes a page devoted to tracking the status of Alien Enemies Act cases in federal courts. Find the page here.

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