The Supreme Court Won’t Stop Executive Overreach

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.

.. “Chevron is nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch,” he wrote in 2016 in the Harvard Law Review.
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.

How the Supreme Court Replaced One Injustice With Another

.. 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.

Separating children from their parents isn’t just immoral. It also threatens our national security.

The American Public Health Association wrote that the trauma from such separation could lead to alcoholism, substance abuse, depression, obesity and suicide. (While the White House says the policy will end for future migrants, it will still affect the thousands of children currently in custody.)

.. But even for those who believe immigration lawbreakers deserve punishment, there’s another argument against separating children from their families: national security. The government’s policy puts the United States at risk, in both the short and long term, by breeding a generation of children with psychological problems and a population elsewhere that reviles us. Traumatized children are prime recruits for extremist groups.

Their children and children’s children grow up in the shadow of, to use the language of 9,300 mental health experts, shrapnel of this traumatic experience embedded in their minds.” As adults, these traumatized children are significantly more likely to have encounters with law enforcement.

.. An extensive body of literature documents how early childhood trauma creates cycles of violence that can destabilize whole nations.

.. most “deterrence” interventions, including jailing and family separation, actually triggered increased terrorist attacks.

.. In North America, the survivors of forced attendance in American Indian boarding schools have seen the effects reverberate for years. Scholars in Canada have drawn causal links between boarding school attendance (sometimes for children as young as 3) in the 1900s and elevated levels of depression, drug use and criminal behavior two generations later.

.. Native American women sent to boarding schools as girls were six times more likely to be incarcerated than their white counterparts and had a 57 percent higher rate of alcoholism as adults.

.. A 2016 study of 15,587 adult children of incarcerated parents found that separating children from parents directly increased interactions with the criminal justice system, including drug abuse and gang affiliation.

.. Syrian children separated from their support systems are “more likely to become

  • the youngest laborers in the factory,
  • the youngest brides at the altar, and
  • the youngest soldiers in the trench.”

.. The individual suffering of older children is immediately consequential to our security because incarceration centers have become recruiting grounds for armed groups. Trump’s favorite boogeyman, the MS-13 gang from which so many Salvadorans fleewas founded in Los Angeles prisons. The United States is keenly aware that young people can be easily radicalized while imprisoned

.. We have seen the radicalization of incarcerated youths firsthand. One of us, Steven Leach, spent years working with South African juveniles awaiting trial. These youths did not all enter detention as organized criminals, but without exception, among those who worked with Leach, each left prison a member of the gang.

..  A similar problem emerged in the internment camps of the Anglo-Boer war, in which British soldiers detained civilians to deter guerrilla campaigns by Boer insurgents. Approximately 115,000 people were held in the camps between 1901 and 1902; 22,000 Afrikaner children died. More than a century later, that horror remains at the forefront of the Afrikaner imagination

.. He leverages lies to stoke fear here: “We don’t want what is happening with immigration in Europe to happen with us!

..Naturally, this feeds radical anti-American sentiment and promotes nationalism abroad when the U.S. is most in need of alliances to solve global problems.

.. There is now strong evidence that punitive deterrence strategies don’t work, no matter how burdensome they are.

.. punishments between 2000 and 2015 effectively reduced economic migration from Mexico but had negligible impact on the population the administration is targeting with its current policy: asylum seekers fleeing violence.

The report points out that there is no consequence worse than death and violence at home for these migrants.

.. If these are people we want as enemies, we had better be prepared for a multigenerational war.

White House to Impose Metal Tariffs on E.U., Canada and Mexico

By keeping trading partners guessing, the president has sought to create leverage in trade negotiations, including in talks over the North American Free Trade Agreement with Mexico and Canada. But in the process, he has sowed an atmosphere of chaos among allies as well as manufacturers uncertain about the ultimate impact on their vast supply chains.

.. Prime Minister Justin Trudeau of Canada said it was “inconceivable” that Canada “could be considered a national security threat.”

.. “For the first time in generations, we’ve really thrown out the rule book with our best trading partners,” said Rufus Yerxa, the president of the National Foreign Trade Council, which represents some of the largest exporters in the United States. “We can’t expect them to continue business as usual with us if we are throwing out the rules. So that means everything from airplanes to agriculture is on the chopping block.”

.. But Vice President Mike Pence on Tuesday phoned to tell the Canadian prime minister that the precondition of a deal was a sunset clause, meaning the pact would automatically expire unless the three countries voted to continue it. The idea has drawn ire from both foreign leaders and business executives, who say it undercuts the surety that trade agreements are meant to create.
“I had to highlight that there was no possibility of any Canadian prime minister signing a Nafta deal that included a five-year sunset clause,” said Mr. Trudeau, “and obviously the visit didn’t happen.”
.. Germany, in particular, had pressed for a negotiated solution, but officials there grew wary after Mr. Trump announced that he would begin a separate trade investigation into automotive imports. If car tariffs go into effect, they would especially hurt Germany’s economy.
.. The Trump administration has argued that imports have weakened the country’s industrial base, and, by extension, its ability to produce tanks, weapons and armored vehicles. “We take the view that without a strong economy, you can’t have strong national security,” the commerce secretary, Wilbur Ross, said Thursday.
.. The European Union and Canada have objected strongly to the idea that they pose any kind of threat to national security, citing their close alliances and defense agreements with the United States.
.. Canada announced corresponding tariffs on a broad list of American exports, including steel and aluminum, as well as dozens of basic consumer products like ketchup, insecticides and laundry machines. The Canadian tariffs, which go into effect July 1,
.. The United Steelworkers union, which represents members in Canada as well as the United States, said the decision called “into serious question” the design and direction of the administration’s trade strategy.

.. The Aluminum Association, the industry trade group, also said it was disappointed. Heidi Brock, the group’s president, said the tariffs would do little to address the larger issue of overcapacity in China “while potentially alienating allies and disrupting supply chains that more than 97 percent of U.S. aluminum industry jobs rely upon.”

.. “These tariffs are hitting the wrong target,” said Representative Kevin Brady, Republican of Texas. “When it comes to unfairly traded steel and aluminum, Mexico, Canada and Europe are not the problem — China is.”

.. In a more pointed statement, Senator Ben Sasse, Republican of Nebraska, called the tariffs “dumb.”

“Europe, Canada and Mexico are not China, and you don’t treat allies the same way you treat opponents,” he said.