[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.
Early Elections in Canada: Will the Fourth Wave Get in the Way?
On August 15, Justin Trudeau, the Prime Minister of Canada and leader of the Liberal Party, announced an early parliamentary election and scheduled it for September 20, 2021. Canadian legislation allows the federal government to be in power up to 5 years, so normally, the elections should have been held in 2023. However, the government has the right to call early elections at any time. This year, there will be 36 days for the pre-election campaigns.
At the centre of the Liberals’ election campaign is the fight against the COVID-19 epidemic in Canada and the economic recovery. The coronavirus has also become a motivator for early elections. In his statement, Justin Trudeau emphasised that “Canadians need to choose how we finish the fight against COVID-19 and build back better. Canadians deserve their say, and that’s exactly what we are going to give them.” Thus, the main declared goal of the Liberals is to get a vote of confidence from the public for the continuation of the measures taken by the government.
The goal, which the prime minister did not voice, is the desire of the Liberal Party to win an absolute majority in the Parliament. In the 2019 elections, the Liberals won 157 seats, which allowed them to form a minority government, which is forced to seek the support of opposition parties when making decisions.
The somewhat risky move of the Liberals can be explained. The Liberals decided to take advantage of the high ratings of the ruling party and the prime minister at the moment, associated with a fairly successful anti-COVID policy, hoping that a high level of vaccination (according to official data, 71% of the Canadian population, who have no contraindications, are fully vaccinated and the emerging post-pandemic economic recovery will help it win a parliamentary majority.
Opinion polls show that the majority of Canadians approve Trudeau’s strategy to overcome the coronavirus pandemic. Between the 2019 elections and the onset of the COVID-19 pandemic, Trudeau’s government was unpopular, with ratings below 30%. Unlike Donald Trump, Trudeau’s approval rating soared after the outbreak of the pandemic to 55%. During the election campaign, the rating of the Liberal Party decreased and was 31.6% on September 16, which reduces the chances of a landslide victory.
Trudeau left unanswered the question of whether he’d resign if his party fails to win an absolute majority in the elections.
Leaders of opposition parties—the Conservative Party, the New Democratic Party, Bloc Québécois, and the Green Party—criticised Trudeau’s decision to call early elections, considering the decision inappropriate for the timing and situation with regard to the risk of the fourth wave of the coronavirus epidemic. They stressed that the government’s primary task should be taking measures to combat the pandemic and restore the economy, rather than trying to hold onto power.
The on-going pandemic will change the electoral process. In the event of a fourth wave, priority will be given to postal voting. Liberal analysts are concerned that the registration process to submit ballots by mail could stop their supporters from voting, thereby undermining Trudeau’s drive to reclaim a majority government. However, postal voting is the least popular among voters of the Conservative Party, and slightly more popular among voters of the Liberal and New Democratic parties. The timeframe for vote-counting will be increased. While ballots are usually counted on the morning after election day, it can take up to five days for postal voting.
One of the key and most attractive campaign messages of the Liberal Party is the reduction of the average cost of childcare services. Liberals have promised to resolve this issue for many years, but no active action has been taken. Justin Trudeau noted that the pandemic has highlighted the importance of this issue.
As in the 2019 elections, the Liberal Party’s key rival will be the Conservative Party, led by new leader Erin O’Toole. The Conservative Party’s rating a five days before the election was 31.3%. Conservatives suggest a different approach to childcare—providing a refundable child tax subsidy that covers up to 75% of the cost of kindergarten for low-income families. Trudeau has been harshly criticised by the Conservatives in connection with the scale of spending under his leadership, especially during the pandemic, and because of billion-dollar promises. In general, the race will not be easy for the conservative O’Toole. This is the first time he is running for the post of prime minister, in contrast to Justin Trudeau. Moreover, the Conservative Party of Canada is split from within, and the candidate is faced with the task of consolidating the party. The Conservative will have to argue against the billion-dollar promises which were made by the ruling Liberals before the elections.
The leaders of the other parties have chances to increase their seats in Parliament compared to the results of the 2019 elections, but they can hardly expect to receive the necessary number of votes to form a government. At the same time, the personal popularity of Jagmeet Singh, the candidate from the New Democratic Party, is growing, especially among young people. The level of his popularity at the end of August was 19.8%. Singh intends to do everything possible to steal progressive voters from the Liberal Party and prevent the formation of a Liberal-majority government. Singh will emphasise the significant role of the NDP under the minority government in the context of the COVID-19 pandemic and highlight that it was the New Democratic Party that was able to influence government decisions and measures to support the population during the pandemic.
Bloc Québécois leader Yves-François Blanchet, whose popularity level was 6.6%, intends to increase the Bloc’s presence in Parliament and prevent the loss of votes in the province of Quebec in favour of the Liberal Party. According to him, it is fundamentally important to protect the French language and the ideas of secularism. The Bloc Québécois is also not interested in the formation of a majority government by the Liberals.
Green Party leader Annamie Paul is in a difficult position due to internal party battles. Moreover, her rating is low: 3.5%. Higher party officials have even tried to pass a no-confidence vote against her. Annamie Paul’s goal is, in principle, to get a seat in Parliament in order to be able to take part in voting on important political issues. The Greens are focused on climate change problems, the principles of social justice, assistance to the most needy segments of the population, and the fight against various types of discrimination.
Traditionally, foreign policy remains a peripheral topic of the election campaign in Canada. This year, the focus will be on combating the COVID-19 epidemic, developing the social sphere, and economic recovery, which will push foreign policy issues aside even further.
The outcome of the elections will not have a significant impact on Russian-Canadian relations. An all-party anti-Russian consensus has developed in Canada; none of the parties have expressed any intention of developing a dialogue with Russia.
From our partner RIAC
Interpreting the Biden Doctrine: The View From Moscow
It is the success or failure of remaking America, not Afghanistan, that will determine not just the legacy of the Biden administration, but the future of the United States itself.
The newly unveiled Biden doctrine, which renounces the United States’ post-9/11 policies of remaking other societies and building nations abroad, is a foreign policy landmark. Coming on the heels of the U.S. withdrawal from Afghanistan, it exudes credibility. Indeed, President Biden’s moves essentially formalize and finalize processes that have been under way for over a decade. It was Barack Obama who first pledged to end America’s twin wars—in Iraq and Afghanistan—started under George W. Bush. It was Donald Trump who reached an agreement with the Taliban on a full U.S. military withdrawal from Afghanistan in 2021. Both Obama and Trump also sought, albeit in strikingly different ways, to redirect Washington’s attention to shoring up the home base.
It is important for the rest of the world to treat the change in U.S. foreign policy correctly. Leaving Afghanistan was the correct strategic decision, if grossly overdue and bungled in the final phases of its implementation. Afghanistan certainly does not mean the end of the United States as a global superpower; it simply continues to be in relative and slow decline. Nor does it spell the demise of American alliances and partnerships. Events in Afghanistan are unlikely to produce a political earthquake within the United States that would topple President Biden. No soul searching of the kind that Americans experienced during the Vietnam War is likely to emerge. Rather, Washington is busy recalibrating its global involvement. It is focusing even more on strengthening the home base. Overseas, the United States is moving from a global crusade in the name of democracy to an active defense of liberal values at home and Western positions abroad.
Afghanistan has been the most vivid in a long series of arguments that persuaded Biden’s White House that a global triumph of liberal democracy is not achievable in the foreseeable future. Thus, remaking problematic countries—“draining the swamp” that breeds terrorism, in the language of the Bush administration—is futile. U.S. military force is a potent weapon, but no longer the means of first resort. The war on terror as an effort to keep the United States safe has been won: in the last twenty years, no major terrorist attacks occurred on U.S. soil. Meantime, the geopolitical, geoeconomic, ideological, and strategic focus of U.S. foreign policy has shifted. China is the main—some say, existential—challenger, and Russia the principal disrupter. Iran, North Korea, and an assortment of radical or extremist groups complete the list of adversaries. Climate change and the pandemic have risen to the top of U.S. security concerns. Hence, the most important foreign policy task is to strengthen the collective West under strong U.S. leadership.
The global economic recession that originated in the United States in 2007 dealt a blow to the U.S.-created economic and financial model; the severe domestic political crisis of 2016–2021 undermined confidence in the U.S. political system and its underlying values; and the COVID-19 disaster that hit the United States particularly hard have all exposed serious political, economic, and cultural issues and fissures within American society and polity. Neglecting the home base while engaging in costly nation-building exercises abroad came at a price. Now the Biden administration has set out to correct that with huge infrastructure development projects and support for the American middle class.
America’s domestic crises, some of the similar problems in European countries, and the growing gap between the United States and its allies during the Trump presidency have produced widespread fears that China and Russia could exploit those issues to finally end U.S. dominance and even undermine the United States and other Western societies from within. This perception is behind the strategy reversal from spreading democracy as far and wide as Russia and China to defending the U.S.-led global system and the political regimes around the West, including in the United States, from Beijing and Moscow.
That said, what are the implications of the Biden doctrine? The United States remains a superpower with enormous resources which is now trying to use those resources to make itself stronger. America has reinvented itself before and may well be able to do so again. In foreign policy, Washington has stepped back from styling itself as the world’s benign hegemon to assume the combat posture of the leader of the West under attack.
Within the collective West, U.S. dominance is not in danger. None of the Western countries are capable of going it alone or forming a bloc with others to present an alternative to U.S. leadership. Western and associated elites remain fully beholden to the United States. What they desire is firm U.S. leadership; what they fear is the United States withdrawing into itself. As for Washington’s partners in the regions that are not deemed vital to U.S. interests, they should know that American support is conditional on those interests and various circumstances. Nothing new there, really: just ask some leaders in the Middle East. For now, however, Washington vows to support and assist exposed partners like Ukraine and Taiwan.
Embracing isolationism is not on the cards in the United States. For all the focus on domestic issues, global dominance or at least primacy has firmly become an integral part of U.S. national identity. Nor will liberal and democratic ideology be retired as a major driver of U.S. foreign policy. The United States will not become a “normal” country that only follows the rules of realpolitik. Rather, Washington will use values as a glue to further consolidate its allies and as a weapon to attack its adversaries. It helps the White House that China and Russia are viewed as malign both across the U.S. political spectrum and among U.S. allies and partners, most of whom have fears or grudges against either Moscow or Beijing.
In sum, the Biden doctrine does away with engagements that are no longer considered promising or even sustainable by Washington; funnels more resources to address pressing domestic issues; seeks to consolidate the collective West around the United States; and sharpens the focus on China and Russia as America’s main adversaries. Of all these, the most important element is domestic. It is the success or failure of remaking America, not Afghanistan, that will determine not just the legacy of the Biden administration, but the future of the United States itself.
From our partner RIAC
AUKUS aims to perpetuate the Anglo-Saxon supremacy
On September 15, U.S. President Joe Biden worked with British Prime Minister Boris Johnson and Australian Prime Minister Scott Morrison together to unveil a trilateral alliance among Australia-U.K.-U.S. (AUKUS), which are the major three among the Anglo-Saxon nations (also including Canada and New Zealand). Literally, each sovereign state has full right to pursue individual or collective security and common interests. Yet, the deal has prompted intense criticism across the world including the furious words and firm acts from the Atlantic allies in Europe, such as France that is supposed to lose out on an $40-billion submarine deal with Australia to its Anglo-Saxon siblings—the U.K. and the U.S.
Some observers opine that AUKUS is another clear attempt by the U.S. and its allies aggressively to provoke China in the Asia-Pacific, where Washington had forged an alliance along with Japan, India and Australia in the name of the Quad. AUKUS is the latest showcase that three Anglo-Saxon powers have pretended to perpetuate their supremacy in all the key areas such as geopolitics, cybersecurity, artificial intelligence, and quantum computing. In short, the triple deal is a move designed to discourage or thwart any future Chinese bid for regional hegemony. But diplomatically its impacts go beyond that. As French media argued that the United States, though an ally of France, just backstabs it by negotiating AUKUS in secret without revealing the plan. Given this, the deal among AUKUS actually reflects the mentality of the Anglo-Saxon nations’ superiority over others even if they are not outrageously practicing an imperialist policy in the traditional way.
Historically, there are only two qualified global powers which the Europeans still sometimes refer to as “Anglo-Saxon” powers: Great Britain and the United States. As Walter Mead once put it that the British Empire was, and the United States is, concerned not just with the balance of power in one particular corner of the world, but with the evolution of what it is today called “world order”. Now with the rise of China which has aimed to become a global power with its different culture and political views from the current ruling powers, the Anglo-Saxon powers have made all efforts to align with the values-shared allies or partners to create the strong bulwarks against any rising power, like China and Russia as well. Physically, either the British Empire or the United States did or does establish a worldwide system of trade and finance which have enabled the two Anglo-Saxon powers to get rich and advanced in high-technologies. As a result, those riches and high-tech means eventually made them execute the power to project their military force that ensure the stability of their-dominated international systems. Indeed the Anglo-Saxon powers have had the legacies to think of their global goals which must be bolstered by money and foreign trade that in turn produces more wealth. Institutionally, the Anglo-Saxon nations in the world—the U.S., the U.K, Canada, Australia and New Zealand—have formed the notorious “Five eyes alliance” to collect all sorts of information and data serving their common core interests and security concerns.
This is not just rhetoric but an objective reflection of the mentality as Australian Foreign Minister Payne candidly revealed at the press conference where she said that the contemporary state of their alliance “is well suited to cooperate on countering economic coercion.” The remarks imply that AUKUS is a military response to the rising economic competition from China because politics and economics are intertwined with each other in power politics, in which military means acts in order to advance self-interested economic ends. In both geopolitical and geoeconomic terms, the rise of China, no matter how peaceful it is, has been perceived as the “systematic” challenges to the West’s domination of international relations and global economy, in which the Anglo-Saxon superiority must remain. Another case is the U.S. efforts to have continuously harassed the Nord Stream 2 project between Russia and Germany.
Yet, in the global community of today, any superpower aspiring for pursuing “inner clique” like AUKUS will be doomed to fail. First, we all are living in the world “where the affairs of each country are decided by its own people, and international affairs are run by all nations through consultation,” as President Xi put it. Due to this, many countries in Asia warn that AUKUS risks provoking a nuclear arms race in the Asian-Pacific region. The nuclear factor means that the U.S. efforts to economically contain China through AUKUS on nationalist pretexts are much more dangerous than the run-up to World War I. Yet, neither the United States nor China likes to be perceived as “disturbing the peace” that Asian countries are eager to preserve. In reality, Asian countries have also made it clear not to take either side between the power politics.
Second, AUKUS’s deal jeopardizes the norms of international trade and treaties. The reactions of third parties is one key issue, such as the French government is furious about the deal since it torpedoes a prior Australian agreement to purchase one dozen of conventional subs from France. Be aware that France is a strong advocate for a more robust European Union in the world politics. Now the EU is rallying behind Paris as in Brussels EU ambassadors agreed to postpone preparations for an inaugural trade and technology council on September 29 with the U.S. in Pittsburgh. European Commission President Ursula von der Leyen declared in a strong manner that “since one of our member states has been treated in a way that is not acceptable, so we need to know what happened and why.” Michael Roth, Germany’s minister for European affairs, went even further as he put it, “It is once again a wake-up call for all of us in the European Union to ask ourselves how we can strengthen our sovereignty, how we can present a united front even on issues relevant to foreign and security policy.” It is the time for the EU to talk with one voice and for the need to work together to rebuild mutual trust among the allies.
Third, the deal by AUKUS involves the nuclear dimension. It is true that the three leaders have reiterated that the deal would be limited to the transfer of nuclear propulsion technology (such as reactors to power the new subs) but not nuclear weapons technology. Accordingly, Australia remains a non-nuclear country not armed with such weapons. But from a proliferation standpoint, that is a step in the direction of more extensive nuclear infrastructure. It indicates the United States and the U.K. are willing to transfer highly sensitive technologies to close allies. But the issue of deterrence in Asia-and especially extended deterrence-is extremely complicated since it will become ore so as China’s nuclear arsenal expands. If the security environment deteriorates in the years ahead, U.S. might consider allowing its core allies to gain nuclear capabilities and Australia is able to gain access to this technology as its fleet expands. Yet, it also means that Australia is not a non-nuclear country any more.
In brief, the deal itself and the triple alliance among AUKUS will take some years to become a real threat to China or the ruling authorities of the country. But the deal announced on Sept. 15 will complicate Chinese efforts to maintain a peaceful rise and act a responsible power. Furthermore, the deal and the rationales behind it is sure to impede China’s good-will to the members of AUKUS and the Quad, not mention of their irresponsible effects on peace and prosperity in the Asia-Pacific region.
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