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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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Prospects for U.S.-China Relations in the Biden Era

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The U.S. presidential election which will be held on November 3 is drawing ever closer. As the Trump administration performs poorly in response to the COVID-19 pandemic, where the death toll in the U.S. exceeded 210,000, the election trend appears to be very unfavorable for Donald Trump.

According to a recent poll conducted by NBC News and the Wall Street Journal, Joe Biden led Trump by 14 percentage points in the national elections. It is worth noting that retired American generals, who have traditionally been extremely low-key in politics, publicly supported Biden this year, something that is quite rare. On September 24, 489 retired generals and admirals, former national security officials and diplomats signed a joint letter in support of Biden. Among them are Republicans, Democrats, and non-partisans, showing that they have crossed the affiliation, and jointly support Biden to replace Trump. Although the opinion polls do not represent the final election, with the election only being one month away, the widening of the opinion gap is enough to predict the direction of the election.

For the whole world, especially for China, it is necessary to prepare for the advent of a possible Biden era of the United States. During Trump’s tenure, U.S.-China relations have taken a turn for the worse, and China has been listed as the foremost “long-term strategic competitor” of the United States.

There is a general view in China that after the Democratic Party comes to power, U.S.-China relations may worsen. The reason is that the Democratic Party places more emphasis on values such as human rights and ideology and is accustomed to using values such as human rights, democracy, and freedom in foreign policies against China. However, as far as U.S.-China relations are concerned, it is too vague to use the simple dichotomic “good” or “bad” to summarize the relationship of the two countries.

However, it is certain that after Biden takes office, his policies will be different from Trump’s. An important difference between Biden and Trump is that Biden will follow a certain order and geopolitical discipline to implement his own policies, and he will also seek cooperation with China in certain bottom-line principled arrangements. It should be stressed that it is crucial for China and the United States to reach some principled arrangements in their relations.

From an economic point of view, should Biden become the next President, the United States will likely ease its trade policy, which will alleviate China’s trade pressure. It can be expected that the Biden administration may quell the U.S.-China tariff war and adjust punitive tariff policies that lead to “lose-lose” policies. If Biden takes office, he might be more concerned about politics and U.S.-China balance. In terms of trade, although he would continue to stick to the general direction of the past, this would not be the main direction of his governance. Therefore, the U.S.-China trade war could see certain respite and may even stop. In that scenario, China as the largest trading partner of the United States, could hope for the pressures in the trade with the U.S. being reduced.

China must also realize that even if Biden takes power, some key areas of U.S.-China relations will not change, such as the strategic positioning of China as the “long-term strategic competitor” of the United States. This is not something that is decided by the U.S. President but by the strategic judgment of the U.S. decision-making class on the direction of its relations with China. This strategic positioning destined that the future U.S.-China relations will be based on the pattern dominated by geopolitical confrontation. Biden sees that by expanding global influence, promoting its political model, and investing in future technologies, China is engaging a long-term competition with the U.S, and that is the challenge that the United States faces.

On the whole, if and when Biden takes office, the U.S. government’s domestic and diplomatic practices will be different from those of the Trump administration, although the strategic positioning of China will not change, and neither will it change the U.S.’ general direction of long-term suppression of China’s rise. However, in terms of specific practices, the Biden administration will have its own approaches, and will seek a certain order and geopolitical discipline to implement its policies. He may also seek to reach some bottom-line principled arrangements with China. Under the basic framework, the future U.S.-China relations will undergo changes in many aspects. Instead of the crude “an eye for an eye” rivalry, we will see the return to the traditional systemic competition based on values, alliance interests, and rules. Facing the inevitable changes in U.S.-China relations, the world needs to adapt to the new situation.

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Third world needs ideological shift

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As nations across the world have been pooling their efforts to contain the COVID-19 spread, the looming economic crisis has caught the attention of global intelligentsia. In the light of health emergency, The policy makers of Asia, Africa and Latin America have been struggling to steer the economic vehicle back to normalcy. Although, the reason for the economic slump could be attributed to the pandemic, it is also important to cast light on the economics of these tricontinental nations. Been as colonies for more than two centuries, these players had adopted the style of economics which is a mix of market economics and socialism. The imperial powers of the then Europe had colonised these nations and had subjugated them with their military and political maneuvers. Under the banner of White man’s burden, the Imperial masters had subverted the political, economical, social and cultural spheres of the colonies and had transformed these self-reliant societies into the ones which depend on Europe for finished products. The onslaught on the economical systems of colonies was done through one way trade. Though, the western powers brought the modern values to the third world during colonial era, they were twisted to their advantage. The European industrial machines were depended on the blood, sweat and tears of the people of colonies. It is clear that the reason for the backwardness of these players is the force behind the imperial powers which had eventually pushed them towards these regions in search of raw materials and markets i.e., Capitalism. Needless to say, the competition for resources and disaccord over the distribution of wealth of colonies led to twin world wars. Capitalism, as an economic idea, cannot survive in an environment of a limited market and resources. It needs borderless access, restless labour and timeless profit. While the European imperial powers had expanded their influence over Asia and Africa, the US had exerted its influence over Latin America. Earlier, at the dawn of modern-day Europe, The capitalist liberal order had challenged the old feudal system and the authority of church. Subsequently, the sovereign power was shifted to monarchial king. With the rise of ideas like democracy and liberty, complemented by the rapid takeoff of industrialization, the conditions were set for the creation of new class i.e., capitalist class. On the one hand, Liberalism, a polical facet of capitalism, restricts the role of state(political) in economical matters but on the other hand it provides enough room for the elite class and those who have access to power corridors to persuade the authority(state) to design the policies to their advantage. Inequality is an inescapable feature of liberal economics.

The powerful nations cannot colonise these nations as once done. The Watchwords like interconnectedness, interdependency and free trade are being used to continue their domination on these players. As soon as the third world nations were freed from the shackles of colonialism, they were forced to integrate their economies into the global economical chain. Characterized by the imbalance, the globalization has been used as a weapon by the Western powers to conquer the markets of developing nations.

The Carrot and stick policy of the US is an integral part of its strategy to dominate global economical domain. The sorry state of affairs in the Middle East and Latin America could be attributed to the US lust for resources. In the name of democracy, the US has been meddling in the internal affairs of nations across the developing world. Countries like Iran, Cuba, Venezuela, Libya, Iraq and Syria have challenged the US,a global policeman. Back in the day,soon after assuming the power, the Left leadership in Latin American countries had adopted socialist schemes and had nationalised the wealth creating assets, which were previously in the hands of the US capitalists. Irked by the actions of these nations, the US had devised a series of stratagems to destabilize the regimes and to install its puppets through the imposition of cruel sanctions and by dubbing them as terrorist nations on the pretext of exporting violent communist revolution. With the exception of the regimes of Fidel castro in Cuba and Hugo Chavez in Venezuela, the US is largely successful in its agenda of destabilizing anti-American governments in the region. The US has a long history of mobilising anti-left forces in Latin America, the region which US sees as its backyard, in an attempt to oust socialist leaders. At present, by hook or by crook, the trump administration has been trying to depose Nicolas Maduro, the president of Venezuela, a socialist.

In addition,The US has been colonising the minds of the third world citizens psychologically with its cultural hegemony and anti-left indoctrination. It is important to understand that the reason for the neo-fascism, which is unfurling across the developing and developed world alike, is rooted in capitalism.The third world citizenry is disgruntled and the ultra-nationalist right wing forces in these countries have been channeling the distress amongst the working class to solidify their position. Growing inequalities, Falling living standards, Joblessness and Insecurity are exposing the incompetence of capitalism and have been pushing a large chunk of workforce in the developing countries into a state of despair.Adding to their woes, the Covid-19 has hit them hard.

The US, with the help of IMF and the world bank, had coerced the developing countries to shun welfare economics.The term “Development” is highly contested  in the economic domain.Capitalists argue that the true development of an individual and the society depends upon economic progress and the free market is a panacea for all problems.Given the monopolistic tendencies in the economical systems across the developing world, the free market is a myth, especially in a societies where a few of business families, who have cronies in policy making circles, dominates the economical and social scene.The time has come for the governments of these nations to address these issues and ensure that the wealth would be distributed in a more equitable manner.

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The Election Circus and an Event in the Cosmos

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The election in the US is held on the Tuesday after the first Monday in November.  A  Tuesday was chosen to allow people enough time to drive to the election site after Sunday, reserved for religious services and rest.  Those were the horse and buggy days and it took a while. The people clearly had greater ardor for democracy then considering we get a less than 50 percent turnout now when voting sites are usually less than a five-minute drive. 

Most states are either heavily Republican or Democrat so the results there are a foregone conclusion.  The winners get the electors assigned to the state on a basis of population.  The electors then vote for the nominees receiving the most votes in the state when the electoral college meets. 

There are about a dozen battleground or swing states; among them Pennsylvania and Florida are prized for their high electoral votes — hence the repeated visits by the candidates.  Trump won both in 2016.  Will he this time? 

Meanwhile two New York papers are busy running negative stories on candidates they oppose.  The New York Times offers tidbits against Trump.  The latest this week is that Trump has a Chinese bank account.  The fact is not new since the information was filed with his tax returns — one has to report foreign bank accounts over $10,000 — but the news is intended as an example of Trump’s hypocrisy for he has been speaking out against doing business in China.  The accounts in the name of Trump International Hotels have been moribund since 2015. 

The New York Post, much less distinguished than the Times, is after Hunter Biden and through him his father, candidate Joe Biden.  Last week the Post unearthed a dubious email purporting to show then Vice President Biden possibly meeting with Hunter’s potential business partner.  This week there is a photograph of the Bidens, father and son, flanked by a Kazakh oligarch on one side and a former president of Kazakhstan on the other.  The latest on the email issue has a certain Tony Bobulinski, one of the recipients, confirming the Post email adding that Hunter sought Dad’s advice on deals.  There is also a proposed equity split referring to ’20’ for ‘H’ and ’10 held by H for the big guy.’  

New York State may be a secure prize for Democrats but news stories these days are picked up on the internet and spread nationally and internationally.  Surely the two newspapers have something really big up their sleeves for the week before the election.  

Charges and counter-charges in the final presidential debate.  Biden repeatedly blamed Trump for deaths from the Covid 19 epidemic.  On almost everything Biden promised, Trump’s rejoinder was why he had not done it in the 47 years he was in public office including 8 years as vice president.  This included mimicking Biden’s previously successful tactic of talking directly to the public.  The same interests fund both major parties and they generally  get what they want except that Trump mostly funded his campaign himself. 

From all the ridiculousness to the sublime.  Images of M87 are the first of any black hole swallowing whatever is within range.  We are told of the discovery of a black hole in the center of our own Milky Way, presumably the eventual destination of everything in our galaxy.  From this perspective the Trump-Biden debate, although quite important for our immediate future, seems to diminish to nothing in significance.  

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