The Limits of Deference

Today, the American Civil Liberties Union filed a lawsuit against the Trump administration in an effort to challenge the now-officially-ordered ban on the recruitment of transgender soldiers into the American military. The suit is grounded in the Equal Protection Clause of the 14th Amendment, claiming that “the ban is unconstitutional because it discriminates against transgender people and treats them unequally.” While there is much to say about the legal merits of the case, I’ll leave those arguments to people with more expertise than I in such matters. However, the case is interesting to me because it, along with several other lawsuits already in progress, might help us determine the limits of executive authority and judicial deference to the president.

Judicial deference is the practice in which courts are reluctant to issue rulings in areas for which legal findings aren’t well suited or might not appropriately overrule policy decisions. In US constitutional law, this often occurs in the realm of foreign policy and national security law, areas in which the courts often lack expertise and in which the urgency and the needs for security and secrecy are often understood to trump narrow legal rulings. Famous examples include the unwillingness of the courts to reach decisions that could, even by inference, imply recognition of Taiwan as a state or the interpretation of rules concerning the procedures by which one applies for asylum. Perhaps the most infamous and important instance of deference occurred during World War II when the Supreme Court refused to overturn the Executive Order interning Japanese-Americans. Deference is not absolute and there are times when the courts most definitely do not defer to the president, and the ACLU’s suit touches on one such time. Courts generally do not defer to the president on the meaning of the Constitution, but as Korematsu demonstrates, when the Constitution butts up against a presidential claim of national security, all bets are off.

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Giving Credit Where Credit (Might Be) Due

Last week, it was reported that, after months of considering the issue, President Trump was preparing to initiate a Section 301 investigation into accusation of Chinese violations of US intellectual property rights. Getting “tough on trade” and renegotiating all of the US’s “unfair” trade deals were some of the clearest policy promises of the Trump candidacy, and it seemed that the president was making ready to deliver on his promises. Interestingly, the issue was, perhaps, one where the president might have actually been able to deliver a “win” of sorts, as getting tough with China was one of the few issues on which Democrats see eye to eye with the president. An event to announce the investigation was scheduled for Friday, August 4.

The event was, however, cancelled and the White House has not provided any information as to when it might be rescheduled or even if the administration plans on opening the investigation at all. What could explain this delay of an issue that plays both to Trump’s base and offers the promise of Democratic cooperation?

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Trump’s Dereliction of Duty

Perhaps the most frustrating thing about trying to follow, understand, and analyze the presidency of Donald Trump is the overwhelming volume of problematic behaviors that stem from the chief executive. What’s the most disturbing thing? Is it the 836 false or misleading claims he’s uttered since taking office? His scorn for the rule of law evidenced by his attacks on the judiciary and those investigating the connections between the Trump campaign and Russia? The interviews that paint him as a barely coherent babbling idiot? (Seriously…I challenge anyone to read the recent interview with the New York Times and explain to me how this man is fit to run the country.) It’s like drinking from a fire hose…every day brings more outrageous acts that threaten to drown us in a sea of lies and moronicism.

Even scarier than the things we see and hear are the things that happen behind closed doors. And while we rarely have the curtain pulled back for us, occasionally someone reveals the goings-on inside the White House that should truly shock and terrify us.

For example, last week, Senator Lindsay Graham was at a PAC meeting, largely focused on the issue of health care reform, designed to attract new members and donors to the GOP. Graham acknowledged that there are some serious issues for Republicans today and that things between the party’s congresspeople and the president are rocky, but that he had recently developed a better personal and working relationship with Trump. In an attempt to illustrate this improved relationship, he began talking about what he likes about President Trump:

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The Structure and Stupidity of Protectionist Trade Policy

Any day now, the Trump administration is poised to make a major decision on US trade policy: whether to impose punitive measures to protect the US steel industry from foreign competition. Such measures–sought by domestic steel producers to protect them from foreign competition–could include tariffs, import quotas, or a combination of both. As the Washington Post notes: “The move could provide relief for a domestic steel industry that says it badly needs it, but it could also raise steel costs at every step of the supply chain — increasing expenses on consumers and on many of the manufacturing industries Trump promised to protect. Additionally, the move has the potential to upset some of the country’s closest international allies, and it could spark a set of retaliatory trade moves against U.S. companies trying to sell their products abroad.”

If anything, the Post is understating the likely effect. First, the direct impact of protectionist policies are always–ALWAYS–a net negative. Even if some jobs are saved, the cost of doing so massively outweighs the benefits of the job saved (unless it’s your job saved…more on this later). Take US sugar import quotas, for example:

U.S. import quotas limit the amount of sugar the United States imports. As a result, U.S. sugar prices are 350 percent higher than world market prices. Although this policy has preserved a few thousand sugar-producing jobs, it has also cost an estimated 7,500 and 10,000 jobs, as candy makers relocated production to countries with lower sugar prices.

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Is Trump Ready for War with Iran?

On Wednesday, Hezbollah issued a deterrent threat to the United States, stating that the Lebanese-based militant group will attack US forces if the US crosses certain “red lines” in Syria. Several times over the last few months, the US has launched air strikes against pro-Assad forces, including elements of Hezbollah, that the US has accused of violating the “de-confliction zones” set up by the US and Russia. Despite both the US and Iran being opposed to ISIS–and to some degree cooperating against the Islamic State in Iraq–in Syria, the two states goals are at loggerheads, with the US fighting primarily against ISIS while Iran strives to support the beleaguered regime.

The problem lies in the de-confliction zone, which Iran seems to seeking to control in order to develop a corridor through Syria to Lebanon, through which it could supply Hezbollah with weapons. The US, prodded to some degree by Israel and its Sunni allies, all of whom fear the rise of Hezbollah and the expansion of Iranian influence in the region, has been punishing violations of the de-confliction zone as a way to push back against Iran and its proxy.

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The Silver Lining of the Withdrawal From Paris

The political and environmental worlds are up in arms over the decision by President Donald Trump to withdraw the United States from the Paris Climate Agreement. As someone with literally no understanding of environmental science or climate change, I’ll leave it to others to ruminate on the environmental implications of the withdrawal (I’d recommend the symposium Josh Busby has put together over at Duck of Minerva here as a nice starting place). However, given that the agreement was non-binding and that the US was planning on partially meeting its commitments through the production, but likely not the sale, of low-emission vehicles, the immediate effect of withdrawal is likely to hurt the US’s role as global leader more than it will damage the environment.

But there is a potential silver lining in the clouds surrounding Paris, a silver lining that is already becoming visible. Immediately after the announcement, states, cities, and private citizens began stepping up to soften the blow of the US leaving the agreement. Washington, California, and New York have created an alliance designed to help individual states produce the emission reductions that President Obama had committed the US to in the Paris agreement. Several American cities, including New York City, Los Angeles, and Salt Lake City, are submitting a proposal to the UN that their emission reductions be taken into account as part of the Paris agreement. Former mayor of NYC, Michael Bloomberg, has pledged $15 million to replace the money that the US would have contributed to the operating budget of the United Nations Framework Convention on Climate Change.

These kind of decentralized, grass roots approaches may very well be better suited to addressing the problem of climate change than a top-down process led by the federal government and driven by multi-party international agreements. International environmental issues are notoriously ill-suited to global, collective solutions or even nationalized ones. There are too many sovereign states with conflicting interests that overlap with their economic health and national security to get functional binding agreements, which is why the first attempt, the Kyoto Protocol, failed. It’s also why the Paris agreement was not legally binding–that was the only way to get nearly every country on board. States and national-level politicians are hesitant to make binding agreements that will limit their economic health in the short-run for long-term benefits for which they won’t reap any electoral benefit. Experimentation in the laboratories of multiple states and cities might be more likely to develop scientific breakthroughs. And the outrage and attention stirred up by such a flagrant rejection of global norms and environmental sensibility, combined with the general anti-Trump sentiment, might just keep today’s reactions going strong into the future, producing a stronger environmental movement and better

While I’m not happy with the president’s decision to withdraw from Paris, largely for the damage it will do to America’s broader foreign policy goals–especially in the context of the other signals from Trump that the US is pulling back from its traditional role as global leader. But the silver lining may very outweigh the environmental impact of the US’s efforts.

Why President Trump Won’t Move the American Embassy in Israel to Jerusalem (Unless…).

On Tuesday, Vice President Pence stated that President Trump was “seriously considering” moving the US embassy in Israel from Tel Aviv to Jerusalem. Trump campaigned on a promise to move the embassy, something that nearly every presidential candidate has talked about doing but that none has actually followed through on. The US embassy is in Tel Aviv for political reasons: the disputed status of East Jerusalem and its role in any future peace negotiations with the Palestinians have led every American president to rethink the wisdom of inflaming Arab and Islamic public opinion for such little gain. Yes, Israel wants the international community to recognize Jerusalem as its capital, but Israel already has permanent control of West Jerusalem, so there’s little tangible gains to be made by the US for moving the embassy.

Given Trump’s unpredictability, however, his promise on the campaign trail was taken differently; maybe he’ll actually do it! Furthermore, the selection of  pro-settler David Friedman, a staunch supporter of moving the embassy, as US ambassador to Israel seemed to confirm that Trump was planning on upending the status quo. As Trump prepares to make a trip to Israel, possibly later this month, rumors are flying around that Trump will announce American recognition of East and West Jerusalem as the united capital city of Israel, if not formally announce the relocation of the embassy. These two options are, essentially, distinctions without difference, as American recognition of a united Jerusalem as the capital of Israel is an acknowledgement of Israeli sovereign control of East Jerusalem which the Palestinians and other Arab states, not unreasonably, would see as prejudicing the final status negotiations that will eventually be necessary to secure a peace agreement and a Palestinian state.

Despite all of the promises, rumors, and even the appointment of Friedman, I do not expect the president to alter in any significant way the status quo on Jerusalem. There are several reasons that I am skeptical President Trump will move the embassy or recognize Israeli sovereignty over East Jerusalem.

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