“Discriminatory equity ideology” and the U.S. Department of State: President Trump Issues an Executive Order--"Removing Discrimination and Discriminatory Equity Ideology From the Foreign Service"

 

Pix credit portion of painting Fight Between Carnival and Lent 1559

 

Presidents have been complaining about the autonomy, culture, predilections, and loyalties of the foreign service and its diplomatic corps almost from the start of the Republic.  That is their right, of course; American tend to complain loudly and publicly about virtually everything, whether or not it is public or private in nature.  There is, of course, a resulting strong mutuality of sometimes low regard by the diplomatic corps either directed toward the sitting President or those officials appointed by him (and perhaps eventually her or them) to oversee their work--but of course more discretely (sometimes). At times, either or both have questions not just the loyalty but the merits of either to hold or occupy the positions to which they were elected or appointed.  That reflex is also as old as the Republic and, in the U.S. context at least, an essential part of the political culture of liberal democracy with American characteristics. It is, a least metaphorically, as Hobbes put it in his Leviathan and for another context: one of "continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short" (Leviathan, i. xiii. 9). 

Pix credit Peter Breughel Younger, Peasant Fight 1620

During times of stability, these engagements tend to serve the system well enough--and might be understood as an important element of the political contests that run deep, long, and endlessly within and as the U.S. political system, and which ensure that healthy tensions between factions (and their ideological campaigns and the zealotry that attends to them) produce tremendous costs to efforts to dominate the political field and eliminate opponents. That, anyway might be a good way of understanding what Mr. Madison had in mind in Federalist Papers No. 10 when he proposed the structural organization of the state in the form of perpetuate and endless debates within frameworks of fractured power--political. social, economic, religious, etc. However, in times of instability or transformation (instability being readily apparent at the time of its existence, transformation serving as a post facto judgment by those generally no involved), these political rituals, and the contests that they represent on a wider  social space, might become as overheated as the passions of the zealots who are compelled by their passions to move their projects forward. That amplification of passion in instability produces the melodrama of action that, in the customary American way, might in retrospect prove both hasty and insensitive to systemic vigor with national solidarity at its core. It may me that to some extent these sorts of overheated contests can sometimes destabilize that healthy (for the US) balance of oppositions that provide spaces for alignment and also for acceptable resistance by the peoples of the US.

Neither primary political faction is blameless or innocent; both might be said to have facilitated and embraced  strategies that augmented skewing behaviors away from a stabilizing core of balancing oppositions. And one might see in the passionate "reforms," on both the left and right (politically and culturally and socially) the consequences of excess that exuberance implied by the instability of the times might produce. As one might say in the current vernacular: hysteria is not a good look for the American political classes or the officials populating the administrative organs of state. In recent times that could be said of the leaders (and their factional supporters) on all sides (there are more than two of course) of the proverbial aisle sine at least the late 19th century (in its contemporary form. Everyone has their favorite--depending of course of where they situate themselves within the spectrum of available zealous causes. 

The relations between the President and the diplomatic corps are a sort of bellwether for the state of political engagement in the US on the level of operational solidarity. What animates it now, and amplifies that animation in the context of what may be understood as more tumultuous times (at least in terms of normative solidarity) is a normative factional conflict that has become a significant marker of factional differentiation in the contemporary political area, and perhaps a contributor to what might be perceived as a greater instability that in the era preceding it.  In the current era an important bellwether (an old one though now appearing in perhaps substantially distinctive form), and one again animating all sides of the political and social aisle), is what has now been reduced to a sort of orthodoxy and counter-orthodoxy (each with its own structures of discipline) that might at times be observed to be used to describe a cluster of attitudes and actions intended to be transformative (in accordance with whatever variant one adheres  or points to) as something like a supreme good or a supreme evil. That bellwether--diversity, equity, and inclusion, along with its ecologies of academic theorization, modalities of operationalization, and general approaches to the cognition of society, the state, and their ideal form--remains at the forefront of the political expression of the administration of Presidents Biden and Trump.  It is just that between them the polarities have been reversed. Thus, while between 2021 and 2025 there now appears to be a radical repositioning of factional positions on the issue--that is in terms of which faction controls the apparatus of state in a way to further their own views and operationalize them within government, and through government, elsewhere. 

It ought to come as no surprise then, that while Mr. Biden sought to both celebrate and embed what we can (for the moment) label DEI) within the structures of the state and from there throughout the nation, Mr. Trump is seeking both to undo that celebration and substitute it with one of his own, which comes under its own label--merit.  This dismantling and rebuilding is intended for embedding both within the structures of state organs and in the larger society. It is in this context that one can understand both the nature and form of Mr. Trump's 19 March Executive Order--Removing Discrimination and Discriminatory Equity Ideology From the Foreign Service (Presidential Actions). Its policy and purpose makes its nature and context unavoidable:

Over the last 4 years, divisive and discriminatory policies were systematically embedded into every part of the Federal Government, including hiring processes and employee performance evaluations in the Foreign Service. It is the policy of the Federal Government that hiring in foreign policy positions, like hiring in all other parts of the Government, shall be based solely on merit. (Removing Discrimination and Discriminatory Equity Ideology From the Foreign Service § 1)

And the ideological battleground is also clearly defined:  the President no longer speaks to DEI or its related terminologies, but rather to “discriminatory equity ideology”(Ibid., § 2(a)), which was defined in an earlier Executive Order (No. 14190—Ending Radical Indoctrination in K–12 Schooling). Just as DEI could be proffered as a curative tonic that would move the political, cultural, and political structures of the nation forward (putting aside for the moment the sometimes passionate disagreements within this normative ecology) so can it be recast as the poison that will undo the social, cultural and political structures of the nation. What was positive for one group becomes its antithesis for the other--subversive, anti-American, threatening to political liberties, radically transformative of traditional values, etc.

Imprinting anti-American, subversive, harmful, and false ideologies on our Nation's children not only violates longstanding anti-discrimination civil rights law in many cases, but usurps basic parental authority. For example, steering students toward surgical and chemical mutilation without parental consent or involvement or allowing males access to private spaces designated for females may contravene Federal laws that protect parental rights, including the Family Educational Rights and Privacy Act (FERPA) and the Protection of Pupil Rights Amendment (PPRA), and sex-based equality and opportunity, including Title IX of the Education Amendments of 1972 (Title IX). Similarly, demanding acquiescence to “White Privilege” or “unconscious bias,” actually promotes racial discrimination and undermines national unity. (No. 14190—Ending Radical Indoctrination in K–12 Schooling; § 1).

 Perhaps equally important and not directly connected to Mr. Trump's 19 March Executive Order--Removing Discrimination and Discriminatory Equity Ideology From the Foreign Service (Presidential Actions was Section 4 of EO 14190. This section provided both for the resurrection of  President Trump's Advisory 1776 Commission but also more importantly, and in the style (ironically) of DEI norms naturalization measures within the population), for the ramping up of a patriotic campaign along the lines of instilling values that were the opposite of those now rejected. These anti-values were specified with some particularity in Section of  EO 14190.

When EO 14190 is transposed to the State Department as a normative operational baseline by a President that has been known to voice distrust (like his predecessors) of the those who serve the state under his leadership and guidance, the threat becomes aligned with the Presidents ability to project  his view of foreign relations through his officials (again not a unique event but one here amplified by the passions around the measure of solidarity  itself contributing to instability in transitions).  And thus the campaign to root this out under the current administration with a passion that perhaps aligns with that of Mr. Trump's predecessor for attempting the opposite. It will be interesting to see whether the Secretary of State also transposes the mechanisms of the patriotic campaigns already envisioned for the training of the nation's children to the diplomatic corps. Certainly that might be possible through a reading of Removing Discrimination and Discriminatory Equity Ideology From the Foreign Service § 3. And, indeed, while the battle on an important level is about normative structures of national solidarity and its basis, the more specific target in the State Department is the cultivation of a diplomatic corps more amenable to Mr. Trump's notion of America First and his potentially quite different agenda for foreign relations.

What makes this (again) interesting is the alignment between ideological campaigns in the US version of a liberal democratic social-political order  and the instrumentalization of the organs of government to first embed and then project factional battling through them into the population  on (or for) whom all of this is meant to produce some benefit. Certainly both the normative battles, and its structural consequences for the orderly operation of the state and its organs are important. But perhaps more important still is the way in which the normative factional battles both within and outside state organs now appear to be transforming, and with the transformation perhaps also reshaping the basic operational nature of the state and its organs. 

The text of  Removing Discrimination and Discriminatory Equity Ideology From the Foreign Service and of No. 14190—Ending Radical Indoctrination in K–12 Schooling follow below.

ICoCA Webinar: Ensuring the Responsible Use of Technology in Private Security

 

 

 

I am delighted to pass along information about an upcoming webinar that may be of interest to those who focus on issues of tech innovation and the provision of private security services. It is sponsored by the International Code of Conduct Association (ICoCA). Information and links follow:

Tech is transforming private security – but at what cost?

While innovations like CCTV, AI and cybersecurity have the potential to significantly improve security services, this rapid expansion into the digital age also brings new risks. These technologies raise important questions about human rights, international humanitarian law (IHL), civil liberties and democracy. Recognising the urgency of developing better governance and regulations, ICoCA is excited to convene security tech and legal experts for the second edition of its Responsible Security Forum (RSF) on 26 & 27 March 2025! This virtual forum will focus on the responsible use of technology in private security. 26 March will be dedicated to a consultative workshop by invitation only, but 27 March is open to everyone and will bring together industry leaders, experts and policymakers to drive responsible security in the digital age. Date: 27 March 2025 Time: 14:00-15:30 CET Location: Online As AI, cybersecurity, drones and automated intelligence reshape the industry, private security companies (PSCs) face new risks, regulatory gaps and ethical challenges. This 2nd RSF will explore: How tech is reshaping private security operations Risks to human rights and international law Key governance and accountability challenges Insights from the new ICoCA & ICT4peace Foundation Toolkit   Join the conversation!

Register Now

关于印发《人工智能生成合成内容标识办法》的通知 [Issuance Notice: Measures for Identifying Synthetic Content Generated by Artificial Intelligence]

 

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"In order to promote the healthy development of artificial intelligence, standardize the identification of synthetic content generated by artificial intelligence, protect the legitimate rights and interests of citizens, legal persons and other organizations, and safeguard the public interest, the Cyberspace Administration of China, the Ministry of Industry and Information Technology, the Ministry of Public Security, and the State Administration of Radio and Television have formulated the Measures for Identifying Synthetic Content Generated by Artificial Intelligence, which are now issued to you. Please follow them carefully."

为了促进人工智能健康发展，规范人工智能生成合成内容标识，保护公民、法人和其他组织合法权益，维护社会公共利益，国家互联网信息办公室、工业和信息化部、公安部、国家广播电视总局制定了《人工智能生成合成内容标识办法》，现印发给你们，请认真遵照执行。(关于印发《人工智能生成合成内容标识办法》的通知 [Issuance Notice: Measures for Identifying Synthetic Content Generated by Artificial Intelligence], Preambular materials)

  On 7 March 2025, led by the Cyberspace Administration of China, Chinese authorities issued a notice of promulgation of 《人工智能生成合成内容标识办法》[Measures for Identifying Synthetic Content Generated by Artificial Intelligence] to be effective 1 September 2025. They are worth careful study as an additional layer of regulatory oversight of A.I. generated content, the main thrust of which is to ensure that the State (with the Party at its core) is not sidelined by developments in A-I. generated content. That aligns with the general foundational premise of socialist modernization after the 3rd Plenum of the 20th Party Congress, a central rationalizing premise of which was that modernization could only exist with the CPC in the lead, that this lead could be undertaken where the CPC drove new quality productivity, and that the generative element of this driving force of socialist modernization was necessarily the exercise of coordination as well as direction by or through the CPC core and then its apparatus (Economic Dialectics Must be Coordinated! Brief Reflections on 习近平, 经济工作必须统筹好几对重要关系 [Xi Jinping, "Economic work must coordinate several important relationships"] and Marxist-Leninist Phenomenology in Socialist Modernization).   But it was more than that. The measures were characterized as responding to mass disquiet and concerns, and pointed toward the elimination of informaiton and actions that threatened not just the masses but the orderly development of this technology and the stability of the state.  The Press Release stated it this way:

In recent years, new technologies such as generative artificial intelligence and deep synthesis have developed rapidly, providing convenient tools for generating synthetic text, pictures, audio, video and other information. While promoting economic development, enriching online content, and facilitating public life, it also causes problems such as the spread of false information and the destruction of the network ecology. The society has widely called for accelerating special legislation, strengthening technical supervision, and consolidating platform responsibilities. In order to actively respond to social concerns and the concerns of the masses, the Cyberspace Administration of China, together with the Ministry of Industry and Information Technology, the Ministry of Public Security, and the State Administration of Radio and Television, has formulated the "Identification Measures". [近年来，生成式人工智能、深度合成等新技术快速发展，为生成合成文本、图片、音频、视频等信息提供了便利工具，在促进经济发展、丰富网上内容、便利公众生活的同时，也造成虚假信息传播、破坏网络生态等问题。社会广泛呼吁加快专门立法、强化技术监管、压实平台责任。为积极响应社会关切和群众关心，国家互联网信息办公室联合工业和信息化部、公安部、国家广播电视总局制定了《标识办法》。]

A key element of this structure are information spokes built around institutional and regulatory hubs. Their construction and operation, in turn, requires data; and high quality data requires disclosure of key element of productivity that may be available to the vanguard and on which it may rely in guiding socialist modernization through its current era of historical development. That data consists, in this case, if origin identifiers which provides a basis for enhancing development. Article 1 speaks to this in these terms:

. . . to promote the healthy development of artificial intelligence, standardize the identification of synthetic content generated by artificial intelligence, protect the legitimate rights and interests of citizens, legal persons and other organizations, and safeguard the public interest [了促进人工智能健康发展，规范人工智能生成合成内容标识，保护公民、法人和其他组织合法权益，维护社会公共利益].

 The disclosure regulations add a layer on an already layered regulatory system that includes: 《中华人民共和国网络安全法》、《互联网信息服务算法推荐管理规定》、《互联网信息服务深度合成管理规定》、《生成式人工智能服务管理暂行办法》等法律 [the Cybersecurity Law of the People's Republic of China, the Regulations on the Administration of Algorithm Recommendation of Internet Information Services, the Regulations on the Administration of Deep Synthesis of Internet Information Services, the Interim Measures for the Administration of Generative Artificial Intelligence Services and other laws].

Article 2 provides that the measures apply broadly to a range of generators and providers generally subject to the web of cyber regulations already issued and referenced in Article 1. Article 3 then specifies the two forms of  identification required:

Explicit identification refers to identification added in the generation of synthetic content or interactive scene interface, which is presented in the form of text, sound, graphics, etc. and can be clearly perceived by users. Implicit identification refers to identification added in the generation of synthetic content file data by taking technical measures, which is not easily perceived by users. [显式标识是指在生成合成内容或者交互场景界面中添加的，以文字、声音、图形等方式呈现并可以被用户明显感知到的标识。隐式标识是指采取技术措施在生成合成内容文件数据中添加的，不易被用户明显感知到的标识。]

These are then elaborated in requirements for different entities subject to the measures. Public disclosure of the use of such content is required in service provider agreements (e.g., Articles 8-9). Article 13 leaves it to regulatory agencies to develop penalties and other measures where there are compliance failures.

It stands to reason that such reporting may be accessed by the State and its relevant organs, and will likely be used through the State's own A.I. assisted programs to generate the sort of descriptive and predictive models that will be critical to the State if it is to undertake its coordination and guidance rule with any degree of relevance. It is not clear if the measures also apply to State and Party organs.  One might suspect that for reasons of national security and state secrets it might not. The measures may apply to context producers from abroad whose content circulates in China.  It is less clear whether content generation subject to these rules will also apply to State enterprises and private entities operating abroad with respect to that content, and whether such information would be available to hist state regulators.  

Of particular interest will be the way that the Chinese content identification rules will align with the transparency rules of the E.U. A.I. Act, for example Arts. 12-14, and Chapter V. The Ai.I. Act's preamble (¶27) provides: "Transparency means that AI systems are developed and used in a way that allows appropriate traceability and explainability, while making humans aware that they communicate or interact with an AI system, as well as duly informing deployers of the capabilities and limitations of that AI system and affected persons about their rights."

The text of the Measures in the original Chinese and in a  crude English translation follow.

President Trump on "Addressing Risks from Paul Weiss" and the Relationship Between Government and Outside Counsel

 

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Mr. Trump has a long memory.  That comes as no surprise. What may be more surprising is the way that this memory has been able to situate events that have deeply affected him, and those he believes responsible for their negative impacts, into matters of state. This was most recently evidenced in a 14 March directive from the President, "Addressing Risks from Paul Weiss," which focused on a well known and quite significant collective of lawyers handling many high profile matters. This is not the first law firm named in a Presidential order. On 6 March 2025, the President directed measures taken against the law firm Perkins Coie (Presidential Action here; discussion in a broader context here). The first of these actions, however, as the 25 February action against Covington and Burling. "During an Oval Office photo opportunity devoted to a series of executive actions, Trump signed a memorandum suspending the security clearances of lawyers and other personnel at Covington & Burling involved in representing Smith before he resigned from the Justice Department last month." (Politico; Presidential Order,Suspension of Security Clearances and Evaluation of Government Contracts).

What has produced some attention in all those actions has been, first that the President directed his order against individually named law firms, and second, that the effect of that naming (and shaming) has been to deprive both forms of any access to work for federal administrative organs. There is a substantial sensitivity on both counts. Both, though, touch on the same fundamental cluster of issues: whether these actions exact a penalty without process, whether the actions chill the ability of a lawyer to freely represent clents without repercussion, and the extent to which the state, as a client for legal services may at like any other client with respect to  lawyers the client no longer trusts and actively and personally dislikes (and the limits of the ability to act on those feelings whether justified or not)..

These issues are already being considered as part of a lawsuit filed by Perkins Coie in the wake of the Order directed against it (Perkins Coie, law firm targeted by Trump, wins temporary restraining order).

 Judge Beryl Howell said at a hearing Wednesday that she would issue a temporary restraining order to block Trump's order while the firm's lawsuit challenging it plays out."I am sure many in the legal profession are watching in horror about what Perkins Coie is going through here," she said.

In its lawsuit, the firm accused Trump of seeking to destroy it based on "a tiny sliver" of its work. "The Order is not just an attempt to constrain or weaken Perkins Coie; its objective is to destroy the Firm," the firm said in a filing. "Unless restrained, the Order realistically might succeed in that objective within days based on the weight of the federal pressure being deployed against the Firm’s clients."

 The firm also warned of far-reaching potential consequences if the order remains in place. "By punishing a law firm for its advocacy on behalf of clients whom the President disfavors, the Executive Order is designed to have a chilling effect extending far beyond Perkins Coie," the firm wrote in its request for a temporary restraining order.(Ibid.).

The issues are quite interesting. On the one hand, the  federal government is no ordinary client.  And it is not merely an entity that may hire (and fore) lawyers; it it also a platform for information and action that is impossible to avoid if a firm is to adequately represent others.  While it may be true enough that a private individual, or a very large and very powerful private enterprise, may choose to fire a law firm--and to try to get all of their friends and relations to avoid working with the frm for reasons personal to that entity (subject of course to the limits of libel and defamation), the federal government might both be treated as an ordinary (or even an extraordinary) client. Not may it deny access to persons or firms that current officials dislike or mistrust. It can seek to punish violations of law, and sanction rule breakers with deprivations of privileges and other punishments permitted by law (none of this is new); officials may hold opinions as individuals (though that is trickier while in office), and they can deny security clearances for those reasons and after such processes as are provided in the rules governing those matters.  But is it different when it is the state through its officials that engage in these activities; ought there to be a difference between a (broad) power to dismiss one's lawyers, and  a power to refuse of cooperate with lawyers (on an equal basis with other lawyers and on similar terms)?

Those are the issues worth litigating here; and more broadly, the question of the use of official power (whether that of a President, Governor, Senator or high administrative official) to blackball a law firm which they detest (other than for reasons of loss of confidence or trust and violation of law), whether officials may hire or fire lawyers as they please, and whether there is a difference (as there ought to be) between questions of hiring and firing and questions of access and cooperation in other matters in which those lawyers represent other clients, deserve a thorough judicial airing. Mr. Trump has suggested conduct by both law firms that might be sufficient to justify replacing them with others when the federal government is seeking outside counsel.  Beyond that, questions of security clearances and cooperation might require substantially more process than the declaration of Presidential mistrust and the reasons for it--though that is certainly one way to start, not end, the inquiry. Whether the State has a greater obligation to cooperate with outside lawyers than private entities is an interesting question which might tilt in favor of a higher bar to resist cooperation. 

The three memorandum and orders are reproduced below.

Invasion or Incursion by Non-State Actors: President Trump Issues "Invocation of the Alien Enemies Act Regarding the Invasion of The United States by Tren De Aragua"

 

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I have suggested before that one of the most interesting developments in the current presidency of Mr. Trump, is the transformation of the meaning of invasion, and the application of Presidential authority in light of that expansion of understanding of the term (The Meaning of "Invasion" in the Current Era of Historical Development: Mr. Trump Issues a Proclamation--"Guaranteeing the States Protection Against Invasion"; an Executive Order "Protecting the American People Against Invasion"; and Others).

Far more interesting is the Trump Administration's willingness, more directly than one might have though possible (or prudent), to confront the conceptual issue of invasion. In the process the Trump Administration has foregrounded a compelling challenge for modern states--the need to shake the cobwebs off of the ancient and now quaint notions  attached like barnacles on a sick turtle, to the body of the State. More specifically, the Trump Administration has embraced quite directly the idea that the concept of invasion: (1) is not a monopoly of states (an 18th and 19th century conceit, wrapped in norm and veils the ideal it represents about the state system); (2) need not be hierarchically managed, that is that one can accept and respond to invasion an an anarchic movement--that is as an ordered movement without a center; contrast chaos); (3) must be understood under certain conditions (not defined except by reference, for the moment, to current conditions on the southern border of the United States) as acts of war; (4) may be understood, under certain circumstances (to be defined) even when presented as the product of anarchic convergence of actions by reference to those undertaking direction of these movements, especially where such organizations may be designated under the law as terrorist fronts; (5) may be understood, under certain circumstances, as instruments of foreign states or other non-state apparatus and can, thus connected, serve as a basis for action against the entire command and control hierarchy of invasion; and (6) creates conditions that, under certain circumstances, can be used to designate portions of the territory of the United States as within zones of conflict within which the authority of the federal political branches changes. To a large extent, invasion has become a conceptual challenge, but one for which societies have long developed a conceptual leading force in the games that we play and in the way in which common understandings are naturalized in sport, for example, and tech. (The Meaning of "Invasion" in the Current Era of Historical Development: , supra).

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One thing that has emerged clearly is an intention to challenge the narratives of migration embraced quite strongly in the aftermath of the Second World War of the 20th Century, and with it, an aligned narratives of the fundamental difference in act and intent that separates state actors from other collectives. Underlying all of that is a challenge to the broad understanding and application of the lessons of Korematsu v. United States, 323 U.S. 214 (1944), on which a powerful and broad narrative has also been built, much of it constructed from out of an essentializing racism at the root of the broad orders from out of which the case emerged. That will depend, in large part, on the detachment of collective action by people from states.

By order dated 15 March 2025 and entitled Invocation of the Alien Enemies Act Regarding the Invasion of The United States by Tren De Aragua, Mr. Trump has declared that all of these conditions now apply to the non-state actor Tren de Aragua,  allied to Mr. Maduro of Venezuela who is described as the head of another criminal enterprise, this time purporting to constitute the lawful government of Venezuela, and propped up through its relationships with other criminal enterprises ("Over the years, Venezuelan national and local authorities have ceded ever-greater control over their territories to transnational criminal organizations, including TdA. The result is a hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States, and which poses a substantial danger to the United States." Ibid.). The description suggests a movement away from the carefully crafted, privileging, and static, construction of global political orders around the concept of a state--a semiotic object, the objectivity of which was singular to it, into which an ideology of political authority could be poured. 

 In response, the President issued an order with multiple tasks.  The first was a declaration that the amalgam of which Tren de Aragua is a part, but TdA in particular, is an agent or instrument of "invasion or predatory incursion." (Ibid., § 1). That is a curious descriptor.  An enhanced definition of invasion to include non-state actors exercising power and action (invasion) which once, by definition (though not in fact) could only be a consequences of the action of states, might be argued to be in accord with the times (as it might have been in the 3rd century from a Roman perspective.--the modern echo of which is in so-called settler colonialism, though the colonialist part is subject to contestation). The reference to predatory incursion, however, might hold substantially more interest from the perspective of triggering state reaction and countermeasures., and protecting the legality of some if not all of the order's mandates. That term suggests intent (predation--attacking or plundering in the manner, perhaps of the bandit gangs in in the movie "The Magnificent Seven") and action (incursion). Thus to engage in predatory incursion with the effect or consequences of an invasion, any collective force (however constituted and however manifested) need to intend to attack or plunder, and to realize that intention by crossing a national border.

Pix Credit Eli Wallach in The Magnificent 7 (1960)

Nonetheless it is a critical element of the predicate necessary to invoke the Alien Enemies Act of 1790, which is the key to the authority on which the Presidential Order rests. The challenge here is not the language of the Alien Enemies Act, but the intervening layers of interpretation and the narratives of caution built into that interpretation in light of its use during the Second World War (see, e.g., here). While only Congress may declare war (one of the predicates for invocation, the President appears to have  the authority to determine invasion or predatory incursion by declaration (Act § 21, see below for text). Certainly given the state of affairs in the 1790s, with privateers (sometimes operating with letters of marque), and of raiding generally along national frontiers, one might suspect that it was not beyond the realm of the reasonable for this sort of vesting of presidential authority via declaration of invasion or to involve predatory incursion. What remains open to debate are the basis for the reasonableness of such declaration, and its basis--and thus it is likely that some sort of invocation of abuse of discretion or bad faith will be alleged by those opposed, and that the President will rely on the factual narratives described in part in the Executive Order itself.

Section 2 then directs the "Attorney General, within 60 days of the date of this proclamation, to prepare and publish a letter under her signature declaring the policy described in section 1 of this proclamation" to every federal judge in the U.S. That appears to be a necessary predicate to the action ordered in § 3, to "direct that all Alien Enemies described in section 1 of this proclamation are subject to immediate apprehension, detention, and removal, and further that they shall not be permitted residence in the United States." This is to be undertaken or directed by the Attorney General and the Department of Homeland Security under the terms of § 4, to which the cooperation of the American government apparatus is sought (Ibid., § 5). Section 6 then declares a broad intent to deploy all police resources to the task.

The Attorney General and the Secretary of Homeland Security are authorized to take all necessary actions under the Alien Enemies Act to effectuate this proclamation, consistent with applicable law. In doing so, and for such purpose, they are authorized to utilize agents, agencies, and officers of the United States Government and of the several States, territories, dependencies, and municipalities thereof and of the District of Columbia.

The Order ends with a four part direction: (1) "No Alien Enemy described in section 1 of this proclamation shall enter, attempt to enter, or be found within any territory subject to the jurisdiction of the United States." (§6(a)); (2) "Alien Enemies apprehended pursuant to this proclamation shall be subject to detention until removed from the United States" (§6(b)); (3) "Alien Enemies shall be subject to removal to any such location as may be directed by the officers responsible for the execution of these regulations" (§ 6( c)); and (4) "All property in the possession of, or traceable to, an Alien Enemy, which is used, intended to be used, or is commonly used to perpetrate the hostile activity and irregular warfare of TdA, along with evidence of such hostile activity and irregular warfare, shall be subject to seizure and forfeiture" (§6(d)). Mass round up, mass removal, mass detention before removal, and mass forfeiture of property used in connection with invasion or predatory incursion. That is the essence of the order. 

It is likely to be litigated in whole or in part, but unlikely to have much effect until the process begins. 

The Alien and Enemies Act is the last of the four Alien and Sedition acts, the other three which have been repealed or expired. It allows the president to detain, relocate or deport non-citizens from a foreign nation or government considered an enemy during wartime. The last time the act was invoked was WWII, during which 31,000 suspected enemy aliens of mostly Japanese, Italian and German descent were placed in internment camps and military facilities. The law requires war to be formally declared — which only Congress has the authority to do. (Trump enacts [sic, invokes] a 1790s law to target 'alien enemies' for detention and deportation).

And indeed, the war between Mr. Trump and elements of the non-state sector and the federal judiciary wasted no time in setting these challenges in motion.

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James E. Boasberg, chief judge for the U.S. District Court for the District of Columbia, said he needed to issue his order immediately because the government was already flying migrants it claimed were newly deportable under Trump’s proclamation to El Salvador and Honduras to be incarcerated there. “I do not believe I can wait any longer and am required to act,” he said during a Saturday evening hearing in a lawsuit brought by the ACLU and Democracy Forward. “A brief delay in their removal does not cause the government any harm,” Boasberg added, noting they remain in government custody. (Trump invokes 18th century law to speed deportations, judge stalls it hours later; see also Venezuelan immigrants sue Trump over order to invoke wartime Alien Enemies Act of 1798 ("Boasberg also appeared to indicate that any deportation flights that were currently in the air with migrants subject to this order on board should be returned to the U.S. ")).

Critical to this litigation will be a war of narratives. One will wrap the acts up with the incarcerations of the Second World War thereafter repudiated. The other will look back to an earlier narrative of invasion. Underlying both will be a likely avoided discussion of the character of migration as a function of historical  episodes, its corruption out of fear, and the normative basis for engagement. But also critical will be the interpretive wars around the key words- of §21 of the Act "natives, citizens, denizens, or subjects of the hostile nation or government." Broadly read they may be a basis for the Presidential declaration (assuming no abuse of discretion); but a narrower reading, one more closely tied to the classical ideology of the state (as fully developed around the middle of the last century) would undo this declaration.  Note as well that even if the declaration is sufficient a host of issues will emerge around the methods and practices of rounding up, detaining, and deporting people; and more importantly perhaps, around the way the state treats those it unjustly or illegally rounds up, detains, and deports. It is in that context that Korematsu might find a basis for application in this new era.

The full text of the Executive Order,  Invocation of the Alien Enemies Act Regarding the Invasion of The United States by Tren De Aragua, is set out below along with the text of the Alien Enemies Act (1798):

 

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Economic Dialectics Must be Coordinated! Brief Reflections on 习近平, 经济工作必须统筹好几对重要关系 [Xi Jinping, "Economic work must coordinate several important relationships"] and Marxist-Leninist Phenomenology in Socialist Modernization

 

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Dialectics must be coordinated. That, in a large sense, suggests a core premise of Leninism within China’s New Era of historical development. And that is what the General Secretary of the Communist Party of China now emphasizes as a core ordering principles of Chinese Marxist-Leninism in this, its new era of historical development. 

 

The idea of the coordination of dialectics, in turn, combines two distinct concepts that serve as the dialectical antipodes of New Era approaches to the challenges of the contemporary principal contradiction along the Chinese Socialist path toward the establishment of a communist society. On the one hand, one has the bedrock Marxist concept of dialectical materialism (with the caveat of both its development from out pf 19^th century German thought and its many variations since the founding and end of the Soviet Union and the transposition of the leading voices of dialectical materialist thought to China). That concept, in turn, combines two premises that are then aggregated.  The first is the premise of dialectics—understood both as a condition (that everything is in flow), and as the process by which the flow produces resolution of contradictions at any given point in the historical development of social relations to which it may be applied. Dialectics is the process of engagement between contradictory or disparate elements the engagement of which, if managed well, processes a sort of synthesis moving engagement forward to new elements of contradiction (and thus both progress and the notion of linearity in history rather than in historical cyclicity, or in movement meant preserve (The Leopard’s famous line, paraphrased as something like “to stay the same we must change with the times” (Lampedusa, Il Gattopardo) etc.) The second is the premise of materialism—which may be understood usefully as a more descriptive means of embracing the notion of phenomenology as theory, in the sense that it is the resolution (constant) of material phenomena that matter. They matter in two respects—for one it is the human condition that is the focus of the Leninist project, and for another, it is only in the material world (objects and actions) that it is possible to engage in (politically and socially) meaningful  dialectical processes. These processes, of course, are made meaningful only within the ideological cognitive cages of Marxist-Leninism and its objectives (establishment of communism) and drivers (the vanguard of social forces organized as a communist party).   

 

 On the other hand one has the bedrock Chinese Leninist notion of coordination (with the caveat that its Soviet, Chinese Republican, and Marxist-Leninist expressions varied widely). The idea of coordination, and of the core role of the Communist Party at the center of coordination as a critical element of its responsibility of leadership and guidance of society along the Socialist path toward the establishment of a communist society (and all of that must be kept in mind if one is true to the theory), has played an increasingly central role in the cognitive cage within which the CPC is constituted, operates, derives its authority and exercises power legitimately at least since the 3^rd Plenum of the 11^th CPC Congress. But it a contemporary expression of much older principles. The first is that of the notion of the critical role of CPC guidance and leadership which have been built into the structures of the Chinese State Constitution (e.g. Article 1), in the premise of Chinese socialism, and in the fundamentals of the CPC Constitution’s General Program. The second is the notion of democratic centralism as the core expression of the practice of Chinese Leninism (Deng Xiaoping, “Speech Delivered At An Enlarged Working Conference of the Party Central Committee” (1962)). Here the contemporary foundation of a view of democratic centralism as shaping both the working style of the CPC and its expression in terms of its practice (and thus back to the connection with dialectical materialism). The third is the form that democratic centralism has informed the practice of centralization-decentralization of the administrative expression of CPCP policy and objectives. “In emphasizing centralism and unity and opposing decentralism, we should lay more stress on the need to adhere to the principle of democratic centralism. Let no one misunderstand this emphasis, believing that centralism and unity can be stressed at the expense of the democratic aspect of democratic centralism. On the contrary, in order to intensify centralism and unity and oppose decentralism, more emphasis should be placed on the democratic aspect. This will place centralism on a solid foundation, ensuring genuine centralism and unity. Deng Xiaoping, “Speech Delivered At An Enlarged Working Conference of the Party Central Committee” (1962)).” 

 

Dialectical coordination as a basic principle of Chinese Marxist-Leninism has been substantially refined in this “New Era” of Chinese historical development. It finds its greatest expression aligned to another significant area of theoretical evolution—that of socialist modernization and the relationship between the development of productive forces and the guidance role of the CPC. One might speak now of the dialectical coordination of socialist modernization.  And that dialectical coordination touches all aspect of social relations in which the obligation to develop productive forces is found—in the economic, social, cultural, environmental, and political fields of social organization. In this sense, dialectical coordination serves as a nexus point for the material expression of the unity of these concepts—dialectical materialism, democratic centralism, socialist modernization, and the nature of the material expression of the leading role of the CPC.  The phenomenological core of this movement ought not to be underestimated: interpretation is the output of action; and action is the manifestation of the theoretical in the world.  That suggests in turn the need for functional alignment (a coordination of coordination) between the old theoretical Hegelian notions of dialectics detached from the material (a form of 18^th century European Enlightenment classical-rationalist detachment), with the phenomenological focus of dialectics within the material (a form of 19^th century European Enlightenment experiential-romantic attachment) but now with Chinese characteristics. This represents the Chinese Marxist-Leninist generative binary: theory-practice; democratic centralism, the mass line, etc., all of which seek a coordination of the endogenous and exogenous, of experience and its rationalization, and more fundamentally of the order of things from which the dialectics of action and object can be “scientifically” coordinated to maximum effect.

 

All of this was manifested in a summary excerpt from General Secretary Xi Jinping’s speech at the Central Economic Work Conference on December 11, 2024, 习近平, 经济工作必须统筹好几对重要关系 [Xi Jinping, "Economic work must coordinate several important relationships"]. It was published to Issue 2025-1 of Qiushi [求是], the official theoretical journal and news magazine of the Chinese Communist Party (CCP), published by the CPC Central Party School and the CPC Central Committee. One encounters here an important distillation of Chinese Marxist-Leninist phenomenology expressed, with no irony, in the form and language of action making theory which provides, in turn, a basis for action producing theory.  And the predicate for action is itself an incarnation of dialectics, this time grounded in contradiction—the so-called “two point theory.” In his "Economic work must coordinate several important relationships" the General Secretary put it this way:  “In analyzing the situation, we must adhere to the "two-point theory", not only talk about the achievements, but also talk about the problems” [分析形势要坚持“两点论”，既把成绩讲够，也把问题说透。] (经济工作必须统筹好几对重要关系).

 

The critical initial element of this dialectics, though, touches on the identification of the organ, collective, or group in which political theory (action) vests phenomenological authority. That is, which group is understood, within the collective as the signification of the authority to act, the actions of which are the predicate for binding dialectics and from which coordination necessarily follows.

The greatest consensus formed by the whole party is that the centralized and unified leadership of the Party Central Committee is the fundamental guarantee for doing a good job in economic work. At critical moments and important nodes, the Party Central Committee timely analyzes the situation, makes decisions and deployments, and ensures that China's economic ship rides the wind and waves and sails steadily. [全党上下形成的最大共识是：党中央集中统一领导是做好经济工作的根本保证，在关键时刻、重要节点，党中央及时研判形势、作出决策部署，确保我国经济航船乘风破浪、行稳致远。经济工作千头万绪] (经济工作必须统筹好几对重要关系)

 

The remarks are especially important for the way that the coordination function of the CPC operates in the economic sector. The nature of this coordination is  developed as a series of five dialectics that mirror, in some ways, Deng Xiaoping’s 1962 reminder of “the five unifications [五个统一] we have achieved by putting together correct ideas: unified thinking, policy, planning, command and action.” (Deng Xiaoping, “Speech Delivered At An Enlarged Working Conference of the Party Central Committee”). Let us briefly consider each in turn. 

 

“First, we must coordinate the relationship between an effective market and an effective government to form an economic order that is both "free and controllable" [一是必须统筹好有效市场和有为政府的关系，形成既“放得活”又“管得住”的经济秩序。]. This posits a relationship between action that ought to be coordinated through the State and actions that ought to be undertaken by individuals and guided collectives to operationalize CPC leadership.  No free market notions here, but rather guided markets—in a style that would be easier to recognize within European governance discourse where the issue of the role of private actors to implement public policy is more acutely debated. This requires attention to line drawing between guidance and control. For Chinese Marxist-Leninism coordination and guidance is realized macro-management: through the rules based construction and oversight of markets so that it operates in a way aligned with (coordination again) public policy and the general direction and objectives of the state.

“有所为，就是要不断建设法治经济、信用经济，完善市场规则并带头遵守规则，通过坚决惩治腐败、保障公共安全等优化市场环境，着力矫正市场失灵，规范竞争秩序，使全国统一大市场成为各类经营主体公平竞争的大舞台。” [To do what it should do means to continuously build a rule of law economy and a credit economy, improve market rules and take the lead in abiding by the rules, optimize the market environment by resolutely punishing corruption and ensuring public safety, strive to correct market failures, standardize the competition order, and make the unified national market a big stage for fair competition among all types of business entities.] (经济工作必须统筹好几对重要关系)

The limits of coordination focuses is grounded in the avoidance of micro-management of micro-subjects: giving some play to individual choices touching on resource allocation and protecting against local protectionism. “有所不为，就是要尊重和发挥市场在资源配置中的决定性作用，防止对微观主体活动的不当干预，不搞地方保护主义和自我小循环。[“To not do what it should not do means to respect and give play to the decisive role of the market in resource allocation, prevent improper intervention in the activities of micro-subjects, and avoid local protectionism and self-circulation.”] (经济工作必须统筹好几对重要关系). The principal focus is national standardization. 

 

“Second, we must coordinate the relationship between total supply and total demand to smooth the circulation of the national economy” [二是必须统筹好总供给和总需求的关系，畅通国民经济循环。]. On the supply side this touches on both production and distribution within national markets. Top some extent, then, the coordination of supply suggests another element in which the State may intervene in the construction and operation of markets—as macro- rather than micro- management referenced in the “first coordination.”  That power has two sides—both to produce and to suppress production or distribution—under the guidance of the CPC and in fulfillment of policy. That policy, in turn, is a function of the management of demand. Here one aligns (coordinates) not just the relationship between supply and demand; one also speaks to the quality and manifestation of demand itself. To shape demand is to shape and develop the ideal individual in the ideal socialist society so that demand itself becomes a matter of State social, and cultural policy. Thus while demand ensures development through consumption; consumption provides an experiential means of realizing or crafting the realization of the  theoretical march along the pathways of perfection. 

 

“Third, we must coordinate the relationship between cultivating new momentum and updating old momentum, and develop new quality productivity according to local conditions.”  [三是必须统筹好培育新动能和更新旧动能的关系，因地制宜发展新质生产力。].  Here one deploys the 3^rd Plenum’s elaboration of new and high quality production in socialist modernization, with the specifics of a policy of transforming the character and quality of markets within which supply and demand may be better managed toward macro-political ends. That involves allocating national resources toward the modernization of traditional economic fields and spending resources to cultivate emerging and future industries. The key here is not this policy itself—that is effectively the policy of all advanced industrial states.  It is that it is through the State organs (and under the leadership and guidance—coordination--by and through the CPC) that such policies are to be formulated and implemented, or implemented giving form to formulation. The ultimate goal is modernization of productive forces. The object is to ensure that Chinese productive forces emerge as the vanguard of leading forces leading and guiding global production under its leadership. In effect, leveraging economic vanguardism into the international sphere. 

 

“Fourth, we must coordinate the relationship between optimizing the incremental and revitalizing the stock, and comprehensively improving the efficiency of resource allocation.”   [四是必须统筹好做优增量和盘活存量的关系，全面提高资源配置效率。]. The focus here is on asset and liability management in the development of productive forces, productive forces that must be directed toward industrial transformation through innovation in emerging areas and modernization in existing fields. Here, again, the focus is on the macro-managing (coordinating) role of the CC through State organs. Not markets (which are focused on resource allocations) but State organs that must anticipate and plan (here perhaps enhanced by big data analytics and A.I. assisted mechanisms) for the sort of transformations that in liberal democratic markets driven systems are undertaken  by market actors themselves. In a sense, then, Socialist phenomenology (through the accumulation of the first three “coordinations” certainly) suggests that the critical difference between liberal democratic and socialist political phenomenology lies in the organs invested with the authoritative role in producing the experience (the materiality) that drives the political dialectics. 

 

“Fifth, we must coordinate the relationship between improving quality and increasing the total volume, and to better consolidate the material foundation of Chinese-style modernization.”  [五是必须统筹好提升质量和做大总量的关系，夯实中国式现代化的物质基础。]. This last touches on a matter that is the subject of template replication throughout the regulatory management of the State and its relationship to the overall oversight of the CPC—discipline, inspection, and supervision. In the economic sphere that involves a transposition of coordination modalities. Here, though, the coordination suggests a mediation rather than resolution between issues of scale and quality.  Indeed, it suggests that the baseline relationship must be that as volume increases quality deteriorates and thus confines its coordinating role to methods for preserving volume by increasing quality measures. Left unresolved is the pricing of such coordination is the object is to increase production to satisfy demand. If, indeed, there is a demand for quality, as well as for goods (something hat one sees elsewhere as well), then the issue of coordination here is not between quality and volume, but rather between quality, volume, and pricing. And if pricing is an issue, and market based allocation is an objective then the further issue is the relationship between State subsidy and price. That relationship then touches on the core macro-regulatory issue of the State and the core question for the CPC leadership core—the way that pricing subsidies may or ought to impact on socialist modernization and high quality production in the transformation of productive forces. 

 

And thus the coordination of dialectical materialism in socialist modernization as a phenomenology of economic activity with a goal that is itself the means of reaching that goal. These dialectics also serve as a template for CPC leadership and guidance (coordination) well beyond the traditionally economic—in social, cultural, and political spheres. The coordination between (1) individual production and collective management; (2) what is desired and what can be provided; (3) what exists and what must be cultivated; (4) evolution of conditions and their transformation; and (5) quality and volume. Applied elsewhere they provide a basis for guidance systems—whether they are managed through generative and predictive analytics, so-called social credit or “smart” systems, or by more traditional human centered means. These describe the core rationalizations of action categories that define the core of the scope of the CPC as the platform within and through which Marxist-Leninist dialectical phenomenology may be undertaken.

It ought to be noted that there is at some level a measure of coordination between what emerges as contemporary phenomenological Marxist-Leninist phenomenology with what is emerging as phenomenological liberal-democracy as it is now perhaps emerging in the United States, a vanguard (leading) force of liberal democracy (The Phenomenology of America First and its New World Ordering of Merchants in this New Era of Global Historical Development: President Trump's Address to Congress--Text and Brief Reflections). In both cases an action-dialectics:  acts expressing theory, which then is applied to acts that express theory.