Today, General Counsel and Senior Fellow Tim Hwang, with help from Research Fellow Sam Roland, filed an amicus brief in support of Anthropic’s emergency stay motion in Anthropic v. U.S. Department of War.
Summary of Argument
Petitioner is entitled to a stay because, on the current record, it has a substantial likelihood of success on the merits. Nken v. Holder, 556 U.S. 418, 434 (2009). Congress vested the Department of War with substantial power to mitigate supply-chain risks. That power deserves serious respect. However, Congress also prescribed procedures and predicates for how that power is to be exercised.
Section 4713 defines supply-chain risk in technical, operational terms. The broader Federal Acquisition Supply Chain Security Act prioritizes mitigation, private-sector best practices, and engagement with nongovernmental stakeholders over outright bans. Section 4713(i) rejects proxy reasoning based solely on foreign ownership. And Section 1327 sends review to this Court. Together, these features show that Congress intended exclusion authority to be disciplined by concrete standards, subject to judicial review, and did not intend to provide agencies with a free-floating power to disable otherwise qualified sources.
There are also judicially reviewable procedural requirements before a vendor (termed a “source” in the statute) may be excluded. Section 4713 requires: institutional recommendation and consultation, notice and an opportunity to respond, a written determination containing specified findings, and congressional notification. Those requirements give this Court a practical, reviewable framework for evaluating the order before it. If they have not been followed, then the order is unlawful and Petitioner is not just likely, but certain to succeed on the merits.
Among the mandatory findings that the Secretary must make to sustain a supply chain risk designation, Amici wish to put special emphasis on the importance of the less-intrusive-measures finding. Congress wanted the Department to engage in disciplined risk management, not exclusion by implication or inertia. The same safeguard appears in 10 U.S.C. § 3252(b)(2)(B) and reflects a Congressional judgment that supply chain risk designations should not be a first resort.
The only question this Court needs to decide to rule for Petitioner is whether the order rests on the predicates and procedures Congress required before or at the time of exclusion according to the above framework. Petitioner has shown a strong likelihood of success because the record does not show compliance with the procedures and predicates Section 4713 makes mandatory.
Though Amici support Petitioner on the record before this Court, they urge the Court to rule in a way that preserves lawful Pentagon power. A careful ruling in Petitioner’s favor would reinforce a broader and important principle: powerful supply-chain authorities remain lawful and lasting only when the decisionmaker makes the findings Congress required. A stay pending review would preserve lawful Pentagon authority while ensuring that exclusion orders rest on the findings and procedures Congress required. If the Court concludes that further development is needed before final disposition, it should at minimum require the Department to lodge the contemporaneous materials needed to defend the order, including under seal or in camera if necessary.
