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Trump’s controversial Executive Order: Why the judiciary could create history

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[yt_dropcap type=”square” font=”” size=”14″ color=”#000″ background=”#fff” ] O [/yt_dropcap]n January 27th, 2017 which ironically happens to be Holocaust Remembrance Day, US President Donald Trump signed an Executive Order entitled ‘Protecting the Nation from Foreign Terrorist Entry into the United States’. The effect of the Executive order, inter alia, was to prevent the entry into the United States, irrespective of visa status, citizens of seven Muslim majority nations.

These nations were Iraq, Iran, Libya, Syria, Sudan, Somalia and Yemen. While subsequent developments exempted legal permanent residents (Green Card holders) from the ambit of the Order and a Federal Court ordering a stay on its operation, the broad essence of its import remains intact. While the Executive Order with its purported implications have met with indignation and moral outrage the world over, not limited to the citizens of the affected nations amidst chaos pertaining to its implementation within the United States, it is important to analyse the legal nature of Executive Orders and the possible routes through which the controversial order could be rightly overturned.

Presidential Executive Orders and their overturn

While there is no express mention of Executive Order’s in Article II of the US Constitution, the relevant Constitutional provision which deals with the executive branch of the government, the power has been an integral feature of the American political landscape. The rationale for the exercise of the power is furthering the legislative mandate of the Congress by issue of specific directions to subordinate executive authorities. However, despite the same there has practically been no limit on either the number of Executive Orders a President may issue or the substantive issues which such orders may address. The only limit on executive orders is the requirement of being harmonious with the Constitution and consistency with the relevant legislative intent which in this case is the Immigration and Naturalization Act, 1965.

There are 3 methods by which an Executive Order may be overturned. Firstly, Presidential overrule- this implies the sitting President revokes a previous order issued by him or revokes an order issued by a previous President. Secondly, Congress enacts a law overruling the Order and thirdly, the Courts striking down the Order. Given Trump’s consistent posturing against Muslims and anti-immigration rhetoric being an integral part of his political platform, it’s unlikely that the President would voluntarily backtrack on the order. The Congress could step in to frustrate the order by enacting a law that repeals the order, defeats its purpose or blocks funding for the mandate but it could be vetoed by the President. Such a veto can only be neutralized by a two-thirds majority in both houses. This implies the support of 67 out of 100 Senators in the Upper Chamber and 290 out of 435 Representatives in the Lower Chamber. Given the current Democratic Party strength of 48 and 193 respectively, it would be a herculean diplomatic effort to galvanize those numbers. However, the given the bipartisan independence that legislators can afford to adopt; such a successful effort on that front cannot be ruled out.This leaves the Judiciary as the final destination which can meaningfully thwart the executive order in light of broader humanitarian and constitutional considerations. If the same happens it would be only third instance in US history where the judiciary strikes down an executive order.

Youngstown Sheet and Tube Co. v. Sawyer (Steel Seizure Case-1952)

Popularly known as the Steel Seizure Case, the litigation was the first and only case in which a Presidential executive order was struck down by the Supreme Court. The case pertained to forceful acquisition of private property during the Korean War by the President on the logic that such a move was necessary to prevent labour- management disputes which could adversely impact steel production necessary to augment war efforts. The Court struck down the Presidential acquisition of Steel production facilities as an illegal infringement of private property claims which were beyond the pale of legislative authorization. Since the judgment in effect ended up protecting private property claims at the expense of organized labour it was viewed in liberal legal circles as regressive despite the landmark precedent that Presidential authority could not trample upon Congress’ domain of law making. Justice Jackson’s reasoning which is regarded as the most influential opinion of the case laid down a ‘three prong’ test which could be employed to assess Presidential executive orders. According to the test, the first category of Orders are those where the President has ‘maximum powers to act’ which is pursuant to an express or implied authorization by Congress. Executive orders falling in this zone should witness least judicial interference as they reflect a legitimate executive effort in giving effect to the legislative will. The second category of Orders also referred as to as the ‘Twilight Zone’ pertain to those executive orders which operate in a field where Congress is silent. In these cases, there should be a judicial determination whether the exercise of Presidential power operates in a zone which Congress implicitly sanctions executive discretion to deal with exigencies. The judiciary is supposed to exercise a middle of the road approach in these category of cases. The third category of Orders also referred to as the “Lowest Ebb Zone” refers to those orders which are made contrary the express or implied will of the Congress. In this zone, the Courts have the broadest leeway to strike down suspect executive order as the effect of the same is to defeat the purposes of a legislative enactment unless the exercise of such power is derived directly from the Constitution.

President Trump’s controversial Executive order while claiming to further the mandate of the Immigration and Naturalization Act, 1965 in effect ends up defeating the purpose of the very enactment and is a flagrant violation of the same. While the act prohibited racial quotas and barred discrimination on the basis of national origin of immigrants, Trump’s order precisely performs the mischief which Congress intended to prevent. This puts the Order in Justice Jackson’s “Lowest Ebb Zone” which ought to alert the judiciary of an imminent need to examine the nature of the Order vis-a vis the parent statute which while granting flexibility to the President to deal with immigration matters clearly lays downs the broad policy contours giving effect to Constitutional principles pertaining to due process, fairness and free exercise of religion while legislating the field of immigration. Thus the Order is a colourable exercise of power which while claiming to achieve a desired purpose, far from harmoniously realizing the stated goal ends up frustrating the original mandate itself.

Despite the immediate impact of the Steel Seizure case, the precedential impact of the case, in particular Justice Jackson’s opinion which is widely considered be the most significant ruling in the case should be the judicial basis to assess the credibility of President Trump’s controversial executive order. Given the principles laid down, there is every reason to believe the suspect nature of the order and its ability to achieve in letter and spirit any guiding Constitutional principle. The Judiciary, chiefly the US Supreme Court is at a pivotal point in history where the “least dangerous” branch of the government has the most “significant responsibility” to ensure the preservation of Constitutional values.

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Blinken’s visit to China and Moscow’s announcement of the visit of Xi Jinping to Russia

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State Department photo by Ron Przysucha/ Public Domain

The visit of Anthony Blinken US Secretary of State to China comes after the official Chinese announcement of the visit of Chinese President Xi Jinping to Russia within the framework of the US administration’s continuation during the current year of its strategy to confront Chinese military and economic influence in the Indo-Pacific region in the American sense or Asia Pacific in the concept.  The Chinese, and to curtail Russian moves with China in the aftermath of the ongoing Russian-Ukrainian war. In addition to the Americans’ attempt during that visit to mobilize more allied countries with it, to line up with the United States of America and its European allies to isolate Moscow internationally, and to build on the American commitments towards the military allies in NATO, to surround and curtail Chinese support provided to Moscow, and to wave a card, regarding the economic sanctions and other restrictions in the event of providing any Chinese support to Moscow and President Putin, especially after the Russian presidential establishment, the Kremlin, officially announced a Chinese visit by President Xi Jinping to Moscow to discuss more ways of joint cooperation between the two sides, which of course raises eyebrows, anger and fears of the Americans towards Beijing and its rapprochement with the Russians.

  Hence, Anthony Blinken’s visit to China comes within the framework of the American approach to adopting hard-line American policies towards the Russian bear by trying to surround and restrain it through China, especially after Moscow’s invasion of Ukraine, with the focus of the Biden administration’s national security strategy, which was issued at the end of 2022. However, Beijing represents the greatest geopolitical challenge to the United States of America with its Russian ally. This was preceded by confirmation by US Secretary of State Anthony Blinken in a speech to define the US administration’s strategy towards China, considering it as:

”the only country that can reshape the current international system, and it is increasingly resorting to economic, diplomatic, military and technological power to do so”

 Hence the visit of US Secretary of State Anthony Blinken to China in the context of the strict US policy towards Beijing.  In addition, there is agreement and near-unanimity at the present time between the Democratic and Republican parties about the threat posed by the Chinese rise economically, militarily, and ideologically to the United States of America, and therefore they support a hard-line approach towards Beijing.  In addition to the US administration’s adoption of a set of new economic and military measures to compete with China, which are measures that would undermine US-Chinese bilateral relations, as happened recently with Washington’s imposition of tight restrictions on semiconductor sales to Beijing, to impede Chinese efforts to compete in the field of advanced technologies.

  Hence the launch of official US calls by a number of lawmakers in the US Senate and House of Representatives, and US national security officials, to ban a number of Chinese applications, led by the “WeChat” program for social communication between China and the world, and the “Tik Tok” program, due to their danger from  Their point of view on US national security, along with America’s attempt to provoke the Chinese side through Washington’s approval plan for an additional arms deal to Taiwan.

  This coincided with Washington’s efforts to deepen economic cooperation and military, defense and security partnerships with Washington’s partners in the Indo-Pacific region in the American sense or Asia-Pacific in the Chinese concept, which happened with Washington’s signing of the “Quad agreement” with Australia, India and Japan to undermine Beijing economically, and the “Quad Quadruple agreement”, and the internationally controversial AUKUS of a nuclear defense and security nature between the United States of America, Britain and Australia.

 The timing of US Secretary of State Anthony Blinken’s visit to China at the present time comes within the framework of American fears that Beijing will throw its diplomatic weight during the year 2023, after abandoning the relative isolation imposed by the “Zero Covid” policy, and the victory of Chinese President “Xi Jinping” for a third term. At the head of the ruling Communist Party in China, which gave him domestic political influence, America is afraid of turning it into aggressive policies abroad, which Beijing will turn into moves in the American spheres of influence to strike its network of interests regionally and globally.

  Here, the importance of the visit of US Secretary of State Anthony Blinken to China as an American attempt to neutralize China mainly towards two issues that concern Washington at the present time, the most important of which is neutralizing China in the face of the support of Russian President “Putin” in his war against Ukraine, in addition to the Americans’ attempt to neutralize China towards Iran and its file.  The nuclear deal, especially in the absence of an alternative strategy for the current US administration to contain Iran after the failure of US diplomatic efforts to return to the nuclear agreement again or to impose real pressure on Tehran.  Hence, the current US administration is in need to follow a comprehensive strategy to contain the Iranian threat, and reduce Tehran’s support for the  (Houthi militia) to enhance regional stability to ensure the security of Israel and the Hebrew state in the first place. This requires American pressure towards China to put pressure on Tehran within the framework of the American deterrence strategy to undermine and confront Iranian activities that destabilize stability in the Middle East region, and not to allow regional or external powers to threaten the movement of freedom of navigation in the waterways in the region and the Arabian Gulf, especially through the Straits of (Hormuz and Bab  Al-Mandab), with the American emphasis on not tolerating Iran’s threats against American citizens and soldiers present in the region. This was evident from the conduct of joint naval military exercises and maneuvers between the American and Israeli sides in the Red Sea region near the movement of the straits and sea lanes in that region, in addition to what we previously witnessed of Israeli military naval maneuvers in the Red Sea, in cooperation with the UAE and Bahrain after concluding agreements.  Israeli peace with them. In addition to the recent Israeli-American agreement between Washington and Tel Aviv with several Gulf countries to strike Iran to ensure the security of the Arab Gulf region and Israel, which divides the region now and divides the efforts of the international community regarding the issue of striking Tehran, especially by the Chinese-Russian camps and their allies in the face of the American camp.  Western and the Hebrew state.

 On the other hand, the visit of US Secretary of State Anthony Blinken to China comes within the framework of US-South Korean fears about the issue of the North Korean nuclear challenge, coinciding with those warnings launched by the capital “Pyongyang” through its official media at the beginning of 2023,  By increasing its nuclear arsenal, and highlighting the expanded meeting that took place between the North Korean leader “Kim Jong Un” with leaders and members of the ruling Workers’ Party, and the North Korean leader’s assertion of the need to increase North Korea’s military strength, to enhance the deterrence and defense capabilities of his country, by increasing the tactical nuclear weapons production in large quantities, a massive increase in the country’s nuclear arsenal, as well as an increase in North Korea’s arsenal of intercontinental ballistic missiles. Therefore, there is a US-South Korean fear of North Korea conducting a series of nuclear tests near the spheres of influence of Washington and its regional allies in the Indo-Pacific region, led by South Korea and Japan This is what Washington translated militarily in agreement with the capital, “Seoul”, to conduct more joint military exercises between the United States of America and South Korea during the year 2023.  With the US administration leading the efforts of the entire international community to condemn North Korea’s nuclear weapons program at the United Nations.  Hence, the visit of “Anthony Beijing” to China comes within the framework of the Americans’ attempt to curtail North Korea’s nuclear, military and ballistic program through Beijing.

  Hence, we conclude with the attempts of US President Joe Biden and his administration to focus more on US foreign policy issues related mainly to China and Russia, by dealing with the most complex global security challenges faced by President Biden with the beginning of the middle of his first term in 2023 to enhance his chances of winning against his opponent, the Republican candidate, in November 2023.

 President “Biden” has already begun to implement the strategy of containing the countries of China and Russia since the moment of his election and assumption of power, even without officially issuing his new strategy for national security, which was evident with his strong statements attacking China and Moscow, which were translated by those successive visits that he made. These were carried out by the current US administration poles, in addition to the meetings that President “Biden” himself held with pivotal countries in the Indo-Pacific region in the American sense or Asia Pacific in the Chinese concept.

  Therefore, the visits of US officials to China and the Indo-Pacific region come as a pivotal goal of President “Biden’s foreign policy” in the next stage, represented in containing China, and then the rest of Washington’s foreign policies will be determined, all of which will seek to serve that central and fundamental goal of Washington, and to achieve America’s position of preference.  towards China by moving to four main entrances for Washington, which are: the competitiveness of the US economy in the face of Beijing, the strength of American democracy itself and its political system according to the view of US President “Joe Biden”, and the most important thing for the current US administration is the strengthening and vitality of the network of US alliances and partnerships, and confirming  own American values ​​with its regional allies and other international partners to undermine the power of Moscow and Beijing.

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Tanks Or Talks for Peace in Ukraine

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Leopard 2. Image source: Wikipedia

There is something quite unsettling about Joe Biden, the US president:  in a long political career, there has never been a war he didn’t like. 

He voted for Bush’s Iraq war, and extended the Afghan war by multiplying US force levels.  When Vice-President, he supported Obama’s bombings in Yemen (at the behest of Saudi Arabia), airstrikes in Syria, even the bombings in Libya that included the unnecessary destruction of the hugely expensive system conveying water from the south to the capital, Tripoli.  Exactly how that helped the Libyan people — the US supposed cause there — is not clear.   

No surprise then if Biden has been pushing the reluctant Germans and others to supply Ukraine with Leopard 2 tanks.  Newsweek published a full list of countries on the ‘pleasing Biden’ list.  A rueful Vladimir Putin reminds his people they will be facing German tanks again as they did in World War II some 80 years ago; except this time he opined Russians will be countering them not with their own tanks but by other means — rockets one supposes.  He was speaking at a ceremony marking the end of the WW2 siege of Stalingrad, now called Volgograd but renamed Stalingrad for a day to honor the defenders and the dead. 

Russia lost a colossal 25 million people during the war through its effects in disrupting food production and supply, and of course in the actual fighting.  In comparison, US casualties ran to about 400,000.

Exactly what the tanks will do remains to be seen — there are only a little more than 400 after all.  Perhaps, they could spearhead a thrust at the Russian line of defense that protects the Russian-speaking East.  But the Russians won’t be sitting ducks.  Putin has hinted at an asymmetric response — heavy bombing of cities perhaps or tank annihilating rockets?   

On a geostrategic level, the war can hardly be claimed a political success for the Biden administration.  It has weakened Europe’s effort for a tighter economic embrace of Russia — a source of cheap energy for them.  That has already seen a decline in Germany’s projected growth rate.  Putin, too, wanted closer European ties but all that is in the past now.   

Instead, the war has thrown Russia and China together, now forming an axis with Iran.  In fact, Russia has recently bought 1700 Iranian drones — unmanned aerial vehicles (UAVs) to conduct attacks against Ukrainian special forces and other military units, as well as targets like munitions and oil storage depots. 

Needless to say, escalation in arms seldom brings peace.  It is de-escalation and talks, not tanks, that is the logical path to ending the conflict.  Always the unimaginable looms in the background.  In this case, the nightmare of a miscalculation leading to a nuclear exchange.

When he  ran for president in 1988, Biden was dogged with charges of plagiarism.  He had been caught using phrases and text from British Labor Party leader Neil Kinnock’s speeches.  There was even an attempt to mimic Kinnock’s life story.  He was the son of a miner and the first to go to college in his family.  Bided began to claim his roots in mining also through a grandfather, who turned out to be a mining engineer, not someone digging at a coal face deep underground.   

Far fetched?  No.  Just a momentary lapse of common sense.  Let’s hope he doesn’t lose it in Ukraine.

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A Balloon and Two States

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A Chinese balloon floating in American airspace has finally persuaded US Secretary of State Anthony Blinken to postpone his much awaited visit to Beijing.

The Incident

The balloon was first spotted on February 1, 2023 by the Canadian defence authorities which stated that its movement was being monitored by NORAD in alliance with American partners. The balloon, currently floating in the stratosphere, was spotted days later in Billings, Montana where it reached after flying over Alaska’s Aleutian Islands, through Canada. The Secretary of Defense Lloyd Austin, visiting the Philippines at the time, convened a meeting of senior military officials where it was decided that the balloon should not be shot down owing to possible security concerns regarding the debris falling over civilian regions. The balloon, suspected to move further eastwards, is found as not posing any tangible security threat.

The People’s Republic of China admitted to the balloon being of Chinese origin. Beijing’s Foreign Ministry on February 3 clarified that the balloon is of “civilian” nature (民用性质) used for meteorological purposes and got blown off coast owing to the Westerlies. China expressed regret on the incident, noted as an “error of force majeure” (不可抗力误入), intending to negotiate with the US to mitigate the “unforeseen situation” (意外情况).  On the evening of February 3, Chinese Foreign Minister and State Councillor Wang Yi also held a telephonic conversation with Blinken stressing that China is a “responsible country which has consistently  observed international law”. He noted that China “does not accept any baseless summarisations and sensationalisation of the issue” (中国是负责任国家,一贯严格遵守国际法,我们不接受任何无端的臆测和炒作。)

The Aftermath

The incident has incited contrasting reactions from both sides. While many experts admit to the possibility of the balloon being blown off coast owing to the powerful Westerlies that blow in the region, the balloon’s ability to linger for days creates suspicions over its benign nature. Balloons, argues an article published in the BBC, unlike aircrafts or drones are not only cheaper, easier to use but are also difficult to track which is the reason why the exact route of the balloon cannot be determined. It is claimed that such high altitude balloons can also loiter for days over target areas owing to their slow speed unlike drones which remain confined to their orbital pass. The move is claimed to be a sleight of Beijing to spy over the sensitive American military region.

Many reports have also claimed that being spotted was the whole point behind sending the balloon. Some experts are reading it as a way for China to highlight its technological prowess to the United States without escalating the situation while at the same time recording American response to it.

The incident has also ruffled some feathers  within the US political corridors; with many, particularly Republicans, pushing President Biden to tersely respond to the situation while also making the incident a pretext for banning Chinese technology and apps such as Tiktok over privacy and security concerns. The most severe consequence however has been Blinken’s decision to postpone his two-day visit to Beijing.

A stern editorial published in the Global edition of China Today (中国日报) on February 3, dubbed the reactions as a way of tarnishing China’s image. While the links to China which the editorial denies have been confirmed by Beijing’s Foreign Ministry, the article notes:

“We can be sure about the ignorance of the fabricator. Surveillance balloons being used as military technology dates back to the early 20th century, the technology is outdated one can hardly imagine any nation like China still resorting to it today; at the same time, the shortest route between Beijing and Montana is over 9,000km, which makes it impossible to precisely control the flight of this or any balloon.”

Turning the tables on the US, the article further notes:

“What really deserves attention during the whole “balloon incident” is that some US media outlets and “experts” have claimed Montana is a highly sensitive place due to the fact there are about 150 intercontinental missile launching sites there, with confidential military information. While the real question is why are the US hoarding such a large stockpile of weapons of mass destruction?”.

A Chinese article in the Sina News similarly rebuffed all claims of the spy balloon as “sheer nonsense” (“纯属无稽之谈”) by citing several military experts. Another article on the news website refuted such claims by noting several previous “China threat theories” including the case of “spy refrigerators”. The article justifies the argument by pointing out how the US  had been planning to produce such high altitude inflatables for surveillance purposes. Citing a Pentagon report, an article in the Time claimed that such  balloons are common surveillance instruments used by several nations including the United States. Moreover, Taiwan’s Ministry of National Defense spokesperson Shih Shun-wen noted that such weather balloons used by the PLA, several of which entered Taiwan’s airspace, are innocuous and do not pose any security threat.

What does it mean?

While American threat perceptions cannot be entirely denied, postponing Blinken’s visit could have been avoided. In an article for The Diplomat, Prof. Hemant Adlakha highlights the ambivalent attitude of the Chinese official discourse and academia  towards Blinken’s visit. The news of the visit did not just remain unconfirmed till the last moment but conspicuously lacked any enthusiasm. Prof. Adlakha notes that such an attitude stems from Beijing’s reservations over hosting Blinken, a figure seen as furthering an unfavourable stance towards China. Another article by the Quincy Institute claimed the situation to be “inflated” beyond requirement and emphasised on the need for diplomatic efforts to be made during times of crises like the present scenario by citing several past examples including the 2001 Hainan Island incident.

Be as it may, the whole episode clearly highlights the deteriorating trust between Washington and Beijing. The bilateral relations, which have remained downhill for more than three years, are in an urgent need of rejuvenation. China and the United States must realise the importance of their stable bilateral relationship for the maintenance of world peace. Incidents like such are a test of diplomatic efforts and both sides must put in active efforts to mitigate the situation.

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