Did Cold War II break out last week while no one was watching? As the Kavanaugh confirmation battle raged, many Americans missed what looks like the biggest shift in U.S.-China relations since Henry Kissinger’s 1971 visit to Beijing... Denouncing what he called China’s “whole of government” approach to its rivalry with the U.S., Mr. Pence vowed the Trump administration will respond in kind... The speech sounded like something Ronald Reagan could have delivered against the Soviet Union: Mr. Xi, tear down this wall! Mr. Pence also detailed an integrated, cross-government strategy to counter what the administration considers Chinese military, economic, political and ideological aggression... Navy plans for greatly intensified patrols in and around Chinese-claimed waters in the South China Sea were leaked to the press... the recently-entered trilateral U.S.-Mexico-Canada trade agreement was revealed to have a clause discouraging trade agreements between member countries and China. The administration indicated it would seek similar clauses in other trade agreements... Congress approved the Build Act, a $60 billion development-financing program designed to counter China’s Belt and Road strategy in Africa and Asia... highlighting the danger that foreign-based supply chains pose to U.S. military capabilities in the event they are cut off during a conflict... Mr. Pence warned that even higher tariffs are on the way. The White House report highlighting supply-chain vulnerabilities could provide the basis for new and more far-reaching restrictions... Business and investors may still be underestimating both the Trump administration’s determination to challenge China and the amount of economic disruption that greater U.S.-China tension can bring... To the mix of longtime China hawks and trade hawks now driving U.S. policy, national security matters more than economic friction, and many of the protestations from the U.S. business community may fall on deaf ears... Both China and the U.S. are likely to move quickly, unpredictably and disruptively as they struggle for advantage; Wall Street should brace itself for further shocks... Democrats who have relished attacking Mr. Trump for allegedly being soft on Vladimir Putin will have a hard time explaining why a hard line on Russia is a patriotic duty but a tough China policy is a mistake.
.. Replacing the North American Free Trade Agreement, reshaping the Supreme Court, and launching a new Cold War in the same week is quite the trifecta. America may or may not be on the road to greatness under Mr. Trump, but it is certainly going somewhere, and at an accelerating pace.
Protectionism, and the promiscuous and capricious government interventions that inevitably accompany it, is , always and everywhere, crony capitalism. But he is spot on about the incompatibility of America’s new darker system and the rule of law:
“Everyone depends on the whim of the administration. Who gets tariff protection? On whim. But then you can apply for a waiver. Who gets those, on what basis? Now you can get subsidies. Who gets the subsidies? There is no law, no rule, no basis for any of this. If you think you deserve a waiver, on what basis do you sue to get one? Well, it sure can’t hurt not to be an outspoken critic of the administration when the tariffs, waivers and subsidies are being handed out on whim. This is a bipartisan danger. I was critical of the ACA (Obamacare) since so many businesses were asking for and getting waivers. I was critical of the Dodd-Frank Act since so much regulation and enforcement is discretionary. Keep your mouth shut and support the administration is good advice in both cases.”
.. Protectionism — government coercion supplanting the voluntary transactions of markets in the allocation of wealth and opportunity — is socialism for the well connected. But, then, all socialism favors those adept at manipulating the state. As government expands its lawless power to reward and punish, the sphere of freedom contracts. People become wary and reticent lest they annoy those who wield the administrative state as a blunt instrument.
.. Tariffs are taxes, and presidents have the anti-constitutional power to unilaterally raise these taxes because Congress, in its last gasps as a legislature, gave away this power.
.. Noting that some Trump protectionism is rationalized as essential for “national security,” Cochrane, who clings to the quaint fiction that Congress still legislates, suggests a new law stipulating that such tariffs must be requested — and paid for — by the Defense Department: “Do we need steel mills so we can re-fight WWII? If so, put subsidized steel mills on the defense budget. If defense prefers to use the money for a new aircraft carrier rather than a steel mill, well, that’s their choice.”
Presidential appointees, business advocates complain, routinely overstep the authority given them by Congress in how they write and enforce rules. With the addition of Brett Kavanaugh, President Donald Trump’s Supreme Court nominee, business sees the Supreme Court as a reliable bulwark against executive branch overreach.
.. Judge Kavanaugh believes presidents, unlike regulators, are owed considerable deference, especially on national security and law enforcement. That’s significant because Mr. Trump is now using national security to justify his own economic interventions, especially on trade.
.. Much of the controversy over the administrative state harkens back to 1984, when the Supreme Court decided, in a case involving the Environmental Protection Agency, Chevron U.S.A. Inc. and an environmental group, that when a law is unclear, the court should defer to a federal agency’s interpretation of that law.
.. Courts have cited Chevron deference, as this doctrine is known, to grant wide latitude to regulatory agencies, from the EPA to the Department of Labor and the Federal Communications Commission. Many conservatives blame it for a decadeslong transfer of power to the executive branch. They questioned the legality of President Barack Obama’s routine use of executive authority, such as limiting greenhouse gas emissions and suspending some deportations of illegal immigrants, to sidestep Congress.It encourages the president, regardless of party, to “be extremely aggressive in seeking to squeeze its policy goals into ill-fitting statutory authorizations and restraints.”
.. Both parties have agencies they love to hate: For Republicans, it’s the EPA and the Consumer Financial Protection Bureau; for liberal Democrats, it’s now Immigration and Customs Enforcement. For both, it’s the Internal Revenue Service or the Justice Department when the other party controls the White House. In each case, a change of president is usually enough to change the agency’s behavior.
.. Yet even as he rolls back the administrative state, Mr. Trump has pushed the boundaries of presidential authority. He has imposed steep tariffs on imports of aluminum and steel and is planning the same on cars, citing his national security authority under a little-used 1962 law. Mr. Trump is also weighing forcing utilities to buy more coal and nuclear-generated power, also on national security grounds.In both cases, national security appears to be a pretext to shore up economically beleaguered industries... “There is a pronounced dichotomy between Kavanaugh’s view on deference to agencies as opposed to his view on deference to presidents,” says Jonathan Turley, a law professor at George Washington University. He says Congress has been progressively marginalized by the expanding authority of both federal agencies, and presidents; Judge Kavanaugh seems to oppose the first and encourage the second.
.. Judge Kavanaugh’s concurring opinion, as a judge on the U.S. Court of Appeals for the D.C. Circuit, in 2015 that the National Security Agency could collect an individual’s telephone “meta data.” Because the purpose was preventing terrorist attacks, he said, it didn’t violate the Fourth Amendment’s prohibition on unreasonable search and seizure.
.. During World War II, about 120,000 men, women and children of Japanese descent, including almost 40,000 foreign nationals living on the West Coast, were removed from their homes, forced to forfeit their possessions and then incarcerated on the basis of military orders authorized by the president.
.. The real reason for the government’s deplorable treatment of Japanese Americans was not acts of espionage but rather a baseless perception of disloyalty grounded in racial stereotypes
.. When President Trump used questionable evidence to issue executive orders last year banning immigration from predominantly Muslim countries, I heard the same kind of stereotypes that targeted the Japanese-Americans in World War II being used against Muslims.
.. we implored the court to repudiate its decisions in those cases while affirming their greater legacy: Blind deference to the executive branch, even in areas in which the president must wield wide discretion, is incompatible with the protection of fundamental freedoms.
.. But the court’s repudiation of the Korematsu decision tells only half the story. Although it correctly rejected the abhorrent race-based relocation and incarceration of Japanese Americans, it failed to recognize — and reject — the rationale that led to that infamous decision. In fact, the Supreme Court indicated that the reason it addressed Korematsu was because the dissenting justices noted the “stark parallels between the reasoning of” the two cases.
.. the Supreme Court seemed to repeat the same bad logic of the 1940s decision by rubber stamping the Trump administration’s bald assertions that the “immigration travel ban” is justified by national security.
.. As Justice Sonia Sotomayor explained in her dissent
.. By blindly accepting the government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the court redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another.”
.. The court’s decision replaced one injustice with another nearly 75 years later.