Trump Will Reinvigorate NATO

In many precincts, there is this misleading suggestion that Donald Trump is backing off of America’s traditional support for NATO, a claim undermined by a reading of his actual position. Joint security pacts are only sustainable when all participants have security capabilities; Trump gets this. That is why NATO calls for each nation to spend 2% of GDP on defense to avoid free-riders. Otherwise, nations can rely on the defense capabilities of other nations. That isn’t collective security; it is one country providing a free, outsourced military for others.

Sadly, many nations are not spending the 2%, instead benefiting from the U.S. security umbrella without pulling their weight. That is unsustainable; even President Obama has called for more defense spending from NATO allies. Alliances, like personal friendships, are two-way streets. States like Estonia and Poland are meeting the minimum while those like Italy and Spain are in default. Italy, a wealthy country, spends less than 1% of GDP on defense. Germany, home to Europe’s top economy, is little better at a meager 1.2%. Relatively poor countries like Poland, Estonia, and Greece are meeting their NATO requirement while wealthy European states are gladly allowing their military to atrophy, enjoying a defense apparatus subsidized by the American taxpayer who is already carrying over $19 trillion in national debt.

Trump recognizes the 2% minimum is useless without enforcement mechanisms. Unless there are consequences for failing to spend 2% (either a fine or loss of membership), European nations will continue to ignore the requirement. Trump’s plan would simply put in penalties for falling short of 2% and would reinvigorate NATO. By forcing Europe to invest its military and thereby reconfirm its commitment to joint security, the alliance will be stronger and could more easily deter Russia. Putin sees a Europe with decaying powers and weak militaries; it is no wonder he is pursuing expansion. A weak Europe has given Putin room to expand, and by being lax on NATO enforcement, we have allowed Europe to weaken. Given NATO’s reliance on American power, we alone have the leverage to get the 23 members who inadequately invest in defense to meet their commitment. The result will be an energized NATO that makes Eastern Europe more not less safe.

Trump’s push for more NATO spending is the only way to stand up to Putin and protect our allies. Islamic terror, an Expansionist Russia, and a strengthening Iran are global problems. They require global responses. Europe should recognize this, especially after a string of terrorist attacks have hit Belgium, France, and now even Germany. Our current policy of blindly subsidizing many European powers has turned NATO from a collective defense pact into a bunch of nations free-riding on the US (and to a lesser extent the UK, Poland, Estonia, and Greece who are spending the 2%). Our European partners need to determine whether they want to help provide and enjoy collective security and meet their commitments.

Trump’s policy will return NATO to its original promise-a transatlantic alliance of democracies all providing for the security of each other. That will make NATO stronger and its collective defense mechanism more credible. Putin will no longer be able to devour the decaying carcass of Europe; instead, the Continent will be able to deter Putin and other aspiring powers like Russia and China. We can then deal with these nations from a position of strength, striking deals when possible and pushing back when necessary. America and the world will be better for it.

National Review’s Useless, Misguided War on Trump

On Thursday night, National Review launched a broadside on Republican frontrunner Donald Trump, urging voters to shun him, and the editors solicited editorials from 22 prominent conservative personalities doing the same. The editorials range from well-reasoned critiques to unhinged attacks, culminating in this final take from the editors: “Donald Trump is a menace to American conservatism who would take the work of generations and trample it underfoot in behalf of a populism as heedless and crude as the Donald himself.” Sadly, these editorials are little more than a shout into the anti-Trump echo chamber rather than being a compelling argument to current Trump supporters that they should support someone else. All this does is allow members of a pundit class which too often criticizes rather than offer solutions (criticizing is far easier) to feel comfortable that at least they “warned the base” while staring aghast at the popular will of voters (at least according to current public polling).

For years, conservatives have rightly lambasted liberal media bias because straight news should be delivered without opinion and opinion pieces should be fair and rooted in reality (ie just because a piece is “opinion” does not make the use of misleading statistics to validate a point justified). However, we must apply the same scrutiny to biases we agree with as with bias we disagree with it. On this account, hypocrisy (on both sides) run rampant because it is easier to forgive the missteps of kindred souls. Sadly, personal dislike towards the subject can lower the quality of discourse, and on this count, it does feel like authors of this “National Review Symposium” are suffering a bit from Trump Derangement Syndrome, letting personal animus bleed into their writings, causing them to overstate their case and the danger Trump poses.

I am no Trump supporter and am extremely unlikely to vote for him in a primary (though at this stage, I would support him in a general election vs. Hillary Clinton), but I still feel like we should be fair to him. It is increasingly difficult to find such analysis; there is merely hate and love, few rational pieces. My main sticking point with Trump is his “Muslim ban,” which to me manages to be impractical, irrational, and immoral, but one can feel that way while agreeing with him that politicians are beholden to the donor class. changed his mind. Any voter is free to find these answers unsatisfactory and choose someone else; however, I question the sweeping argument that those “new” to conservatism are unfit to lead it. With the standard caveat that Trump is no Ronald Reagan, the fact is Reagan was an FDR-supporting, New Deal Democrat who left the party in 1962 and ran as a conservative for California Governor in 1966. Based on the arguments in the symposium, it seems the writers would have opposed Reagan in 1966, questioning his sincerity. In fact, I hope they would have; otherwise, they would be holding Trump to a different standard, which is unfair. As Reagan showed though, sometimes betting on a new face can work very well.

Voting for Trump is definitely a wager, given his flip-flops, but he is not alone on this account. Rubio and Cruz are first-term Senators (like Obama) with no major accomplishments in the Senate—voting for them is clearly a gamble. Jeb Bush hasn’t held office for a decade and is comically inept at making an argument. An effective user of the bully pulpit he would not be. Christie’s second term has left much to be desired. In my estimation, Kasich has the strongest record, though some will question his Medicaid expansion (full disclosure: I have donated to the Kasich campaign). Candidates are human beings; they will be flawed. Voters must decide what assets they seek and what flaws are acceptable. It is easy to oppose candidates by focusing on the flaws, which is what National Review did on Trump. Did the writers have the willingness to stand together and support someone else? Of course not. That’d be hard.

Much of the attack on Trump continues to center around his populism, which just boggles the mind. If a candidate isn’t focused on improving the lives of working people and middle class, why are they running? Rather than attack Trump personally, which will merely cause his supporters to tune out, we should embrace his populist focus but argue that different solutions will help Americans more. For instance, a bigger EITC and more progressive code would be a more effective tax plan than Trump’s. On this front, the symposium comes up woefully short. Trump plans are attacked but alternative are not offered. What’s the point of this? Even if Trump’s plans stink, what’s to say others have better plans? After all, Cruz’s European VAT plan is seemingly designed to hurt workers to the benefit of corporations and their owners (read: donors). All we hear from most candidates is a rehash of 1980 economic policy as though the problems have not changed since then. Trump is one of the few to be intellectually honest enough to suggest we try some different policies.

In particular, they signal out Trump’s trade rhetoric, and while not all of his China claims are backed by fact, toughness with China and the threat of some trade restrictions are not inherently anti-conservative. Chinese companies steal our intellectual property, often don’t pay what they owe American companies, get state sponsorship, and the government hacks into our companies to steal trade secrets. While we focus on the currency that is the least egregious thing China does. Should we ignore these actions, which have hurt American workers, in the name of free trade? That seems asinine. Ultimately, the President’s job is to better the country. Heck, even Reagan expanded farm subsidies for exports to the Soviet Union to help U.S. farmers. The rise of China has greatly lowered U.S. inflation, thereby increasing growth indirectly by boosting our purchasing power, but it has not driven much growth directly. Unless, the other country plays fair, free trade for the sake of it isn’t wise or good for the public. That does not mean a 45% tariff is the right policy response, just that mindlessly supporting free trade is neither conservative nor good policy.

Absolute rigidity is a sign of intellectual smallness not of adherence to principles. Opposing the bank bailouts of 2008 (which turned a profit, mind you) is not conservative; they saved this country from Depression. They are one of the few economic policies for which George Bush deserves praise. To criticize Trump for supporting them is laughable. Maybe letting the financial system implode is theoretically conservative, but how is ruining the lives of 100 million people the right thing to do? Again, it is easy to shout from the bleachers when you don’t have to solve the mess transpiring on the field.

Trump is the only leading candidate who consistently speaks to the needs of the middle and working class, demographics the GOP desperately needs to do better with, and there is a greater battle in conservativism here. While Trump is out of the orthodoxy on many issues, many “conservative” intellectuals and politicians have abandoned conservative’s populist roots over the past 15 years, focusing too much on top marginal tax rates, defending things like the carried interest loophole, and emphasizing the elimination of the estate tax. Fundamentally, conservatism is rooted in an optimism of the capacity of ordinary people, which is why we prefer to leave them with power rather than hoard the power among a band of so-called experts within government. In some circles, this optimism in the public has morphed into a simple disdain for government and emphasis on total adherence to principles.

There is a greater war within conservatism between the doctrinaire elites (think George Will) and the pragmatic populists (think Bill O’Reilly), and this National Review-Trump feud is just the latest battle. Trump is an imperfect vessel for his side but the sneering of NRO won’t sway anyone, just entrench both sides further. Being a doctrinaire is easy when on the sidelines critiquing those in the arena, but the fact remains that at the federal level, establishment conservatives and liberals have failed for 15 years to help the middle class. America does its best when pragmatic populists like Reagan lead it, and we should hope this side wins the war for conservatism.

At least Trump is emphasizing the needs of workers. That’s more than most candidates can say. Let’s embrace his focus, prove to those making under $50,000 that conservatives actually care about them (which we have failed to do), and offer different, compelling solutions. What the National Review did surely helped to stroke egos, but it didn’t boost the discourse. It’s high time we realize conservatism’s failures post-Reagan have created Trump. He’s a reminder we’ve lost our way. Directing our ire at him is a waste of time, direct it at the leaders (ie George W Bush), pundits (George Will), and rent-seeking donors whose intellectual rigidity and outdated policies have failed.

Median wages are lower than 15 years ago. Unlike Trump, that is actually something to be embarrassed about and have an emergency symposium on.

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The Paris Agreement: Yet Another Meaningless Deal

On Saturday, nearly 200 nations signed a climate pact that President Barack Obama called a “turning point for the world.” Obama argued this agreement was the one “the world needed.” Upon reading the actual text of the deal, it would appear the world didn’t need very much, if the President’s claim is to be taken at face value. In the end, this deal is as fanciful and toothless as the Kellogg-Briand Pact of nearly a century ago that banned war in the wake of World War I. While the failings of this deal are unlikely to be as grave (World War II was pretty awful, you know), it suffers from the same fatal flaw: no enforceability.

This agreement doesn’t actually do anything; it is merely a voluntary plan whereby nations will unilaterally cut emissions or something. The over-arching goal is to keep global temperatures rising 2 degrees (Celsius) from the current expectation of some in the science community for 2.7-3.7 degrees. If this voluntary deal works really well (!!!), the agreement leaves open the possibility of pushing for a more aggressive 1.5 degree target.

This agreement “invites Parties to communicate their first nationally determined contribution no later than when the Party submits its respective instrument of ratification, accession, or approval.” This agreement merely invites nations to come up with their own plan to bring down emissions to unspecified levels to lead to less climate change. Does that sound vague? Don’t worry; this agreement also creates an “ad hoc working group” to monitor nations’ progress because groups of bureaucrats are renowned for getting things done.

Signing to this deal merely signifies the “Voluntary participation authorized by each Party involved.” Are there any enforcement mechanisms that punish nations for failing to bring emissions down (or for some developed nations, rise more slowly)? Nope. We are operating solely on the trust system—no way that could produce underwhelming results. Some hailed the underlying goal of the deal as ground-breaking: “Parties aim to reach global peaking of greenhouse gas emissions as soon as possible.” Others may contend that the phrase “as soon as possible” means absolutely nothing and gives offending nations plenty of room to maneuver if confronted (i.e. more action just wasn’t possible). This deal also says developed nations are to give developing ones at least $100 billion/year by 2020 to help fund their development, thereby making income redistribution an international affair. Good luck getting everyone to write those checks…

Those who are unconvinced climate change is the world’s most pressing problem and aren’t prepared to crush the economy to cut emissions should actually be thrilled by today’s deal as no new policies have to be implemented. If we actually wanted to cut emissions, any deal needs to have set targets and strict ramifications for violations (for example, automatic WTO admissible tariffs to hurt the economy of offenders). Otherwise, developing nations, like China and India, will cheat, pointing to the fact there were no restrictions on the West’s industrial revolution a century ago. Of course, they benefit from our revolution (India doesn’t have to invent the car for instance), so there should be restrictions if we are to have some, though perhaps not quite as onerous for a bit of time. Adhering to unenforceable deals threatens to leave the American economy relatively uncompetitive as other nations’ flout the deal’s requirements.

Fortunately for the climate alarmists in our midst, the private sector is already helping to solve the problem. Our abundance of natural gas is hurting coal, and with or without government regulations, coal will likely go the way of the dodo bird in this country over the coming decades. As we export LNG, energy production around the world will only get cleaner. Automotive emissions keep improving, and the advent of the electric car will only help. Continued advancement in battery technology could facilitate a smaller, cleaner grid while improvements in transmission will make nuclear more viable in more regions. Even in countries like China, popular discontent over ridiculous pollution levels could force the regime to act over time if only to keep the public happy. Indian cities aren’t far behind.

However, our President is a climate alarmist, which leaves one befuddled as to why he would be happy with this deal that is voluntary and lacking enforcement mechanisms. This climate pact is strikingly similar to the Iran Deal, which is nonbinding (heck no one even signed the agreement!) and has laughable verification measures (not to mention the fact that re-imposing sanctions with Russian approval and European unity is as likely as Hell freezing over, unless of course unfettered climate change here serious impacts the temperature down below…).

Our President seems to have a lot of trust in foreign powers to do the right thing despite their national interest. It’s a fascinating turn for a President who so recognized the free-rider problem, he coerced Americans to buy healthcare insurance or face stiff financial penalties (the individual mandate). Of course, if the insurance under Obamacare is as good and affordable as advertised, wouldn’t people be clamoring for it and not need coercion? I guess, unlike China and Iran, Americans can’t be trusted to the right thing.

Moreover, our President may see no need to make legally-binding agreements since he never feels the law binds him as evidenced by the lawless immigration executive orders and potential one on Guantanamo Bay. Ultimately, our President seems to enjoy doing things for the sake of doing things. That is how Democrats inevitably react to gun violence (just pass a law, even if it wouldn’t have stopped this shooting). Obama wanted a deal with Iran to check off a box on his legacy, even if the deal was a poor one. Similarly, he wanted to do something on the climate. We can all sleep easy and claim the moral high ground now that this high-sounding, completely unenforceable garble has been agreed to. In the view of our leadership, just doing something is an achievement, results be damned. That is the only way to explain the Iran Deal, the Paris Accord, gun violence reactions, and our tepid ISIS bombing campaign. At least we can feel good about ourselves as the world implodes!

Now, I don’t believe economy-crushing cuts make sense, but it astonishes me how horrendous of a negotiator our President and his Secretary of State, John Kerry, are. They are either delusional or lying when calling such a deal as this a groundbreaker. If we ever want to deal successfully with China or Putin or Iran, this naïve idealism is dangerous.

Recently, Obama and the Left have often linked climate change to terrorism. Well, the Paris Agreement will do as much for emissions as those 20 bombings/day have done to roll back ISIS.

Just like coal, this deal will end up being a puff a smoke, not worth the two weeks of diplomats’ hot air blown in Paris.

Trump Isn’t the Problem; He’s the Symptom

On Monday afternoon, Donald Trump announced a plan to ban Muslims from entering the United States, sending shockwaves through the political universe. The plan drew condemnation from most of the chattering class and his fellow candidates, though undoubtedly, many of his supporters were on board with the thrust of the plan, even though Trump suggested even American citizens, who happen to be Muslim, will be banned from re-entering the country. To be frank, this plan is abhorrent and repulsive to our constitutional ideals and merits unequivocal rejection. It is now easy to cast Trump as a problem (and for the GOP’s electoral chances in 2016, I would argue everyday he dominates the news cycle is problematic), but in reality, Trump is merely the symptom and not the problem itself.

Focusing on the plan first, it manages a perfect trifecta: unconstitutional, irrational, and unworkable. Working backwards, it is unworkable because it is absolutely impractical to know for certain whether or not a foreigner, seeking to enter the country as a tourist, is a Muslim. Are we going to ask for religious documentation? How do we know that a Radical Islamic terrorist isn’t merely pretending to be a Christian? Proving a negative (ie that one is not secretly a Muslim) is a dead end. Immigration would ground to a total halt. Plus in many of the most dangerous places, verification is an impossibility, hence the House plan to temporarily pause the Syrian refugee program.

It is also irrational because it misplaces the threat. Do we feel better about a businessman from Vancouver, who happens to be Muslim, visiting family in Seattle or a self-declared non-Muslim from Raqqa, Syria coming to the country? Under the religion-only test, the Syrian gets through and Canadian gets blocked. Does that seem rational? Clearly, radical Islam is a serious problem, but not all of Islam is. Any ban should focus on specific countries not religions.

Trump understands that Americans are scared, and he is right that we need to button-up our immigration policies; he just does so in an ineffective way. The fact is the threat to this country comes from ISIS-controlled territory in Iraq, Syria, and Libya or al-Qaeda controlled territory in Yemen and Afghanistan as well as portions of North Africa (or from Westerners who travelled and were trained in these places). The rational policy is tighten policies for all people, who either live in or have visited those countries, irrespective of their faith. That means suspending the refugee program until verification concerns noted by Obama’s FBI Director James Comey and others have been rectified. It also means altering our visa waiver program (the bipartisan Feinstein-Flake bill is a very good start) whereby a French citizen can go to Syria, develop skills to launch an attack, go back to France, and then come to the US without a visa to launch an attack here. Anyone visiting a hotbed of Islamic terror should be required to get a visa, irrespective of what country they are from and what their faith is. These policies would do far more to keep the bad guys out while avoiding the clear moral issues of blindly banning all Muslims.

Where the Trump plan totally goes off the rails is its treatment of US citizens who happen to be Muslim. Entering the country is a clear, fundamental right that Trump is depriving based on one’s religion without any probable cause. That is a blatant violation of the First Amendment right to freedom of religion. Attacking people for their faith is the domain of the left, as evidenced by their attacks on the Sisters of the Poor and Christian florists. Trump also suggested “closing” parts of the internet up. To those who would protest about freedom of speech in the first amendment, he would call them “foolish people.”

It is easy to defend constitutional rights during tranquil times, but the true mettle of one’s commitment to our ideals and freedoms shows during dire times. Trump is flunking that test, promising to shred the rights of Muslim citizens, functionally blockading them from leaving and banning them from returning, in the name of protection. Again, I ask are you more concerned about a Muslim American spending a weekend in Toronto or a detached young male who is a non-Muslim American (unaffiliated with an aid group for argument’s sake) in Syria. Freedom of religion is the quintessential American right, and we as conservatives have fought hard to protect it. To quote President Ronald Reagan from 1984: “government should not make it more difficult for Christians, Jews, Muslims, or other believing people to practice their faith.” Trump would do exactly that, and that is deplorable.

It is the nature of mankind to trade some freedoms for the hopes of safety, a natural proclivity Trump is playing to. Charlatans in the past like Senator Joe McCarthy fed off this fear. Democrats are currently using this fear in an effort to strip due process rights away from some looking to buy guns. A low point in this nation’s history was the internment of Japanese citizens where our fear led us to strip fellow citizens of their rights just because of who they were. Tragically, the Supreme Court upheld this policy in Korematsu v. US. I would point you to Justice Frank Murphy’s powerful dissent, in which he declared (emphasis my own), “But to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that, under our system of law, individual guilt is the sole basis for deprivation of rights. Moreover, this inference, which is at the very heart of the evacuation orders, has been used in support of the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy.”

America does not stoop to the level of our adversaries to beat them; our constitutional ideals are meaningless if we are so fickle and weak-kneed. We punish those who themselves commit wrong, not just belong to a certain group. We mustn’t repeat the tragedies of the past, by stripping rights in the supposed effort to protect ourselves. The inclination can be strong, but we must rise above it and keep our dignity for in the words of Alexis de Tocqueville, “America is great because she is good. If America ceases to be good, America will cease to be great.” We must stand united against this irrational, ineffectual, and unconstitutional policy.

Republicans and conservatives need to stand up to Trump’s divisive rhetoric. We have worked hard for years to make clear we are at war with Radical Islam but not all of Islam; in fact, we need moderate Muslim leaders themselves to stand against radicals. Trump’s plan lumps in all Muslims, threatening to undo this work. It also makes it easier for Democrats, hobbled by slavish political correctness, to avoid the term Radical Islam. Some on the left will also undoubtedly use the Trump plan to marginalize other GOP plans on refugees (like the House bill) as racist and not as the much needed reform they are.

After clearly going past the line (if he hadn’t already), it is now easy to dismiss Trump as the problem whereas he is really the symptom of a bigger problem. An increasing portion of the American public, particularly the working class, feels disenfranchised. The whole public is scared; prior to the San Bernardino terror attack, only 33% of Americans approved of Obama’s handling of ISIS, and only 38% approved of his handling of terrorism (from CNN-ORC). Obama’s consistent dismissal of ISIS has perhaps irreversibly damaged his credibility on national security. Trump’s tough talk is reassuring, even if the underlying policies aren’t feasible.

By the same token, the Republican Party has been an abject failure when it comes to explaining how its policies will help the working class, perhaps because much of its donors are corporatist Wall Streeters. In 2012, Mitt Romney lost voters whose top issue was having a President “who cares about people like me” by a stunning 81-18% margin. He never articulated how his policies would help ordinary, working Americans. At this point, no serious Republican Presidential contender, apart from Trump, have made a serious stride in this area (though Rubio has been trying harder than others, and hopefully, Paul Ryan will be a thought leader in this area). Perhaps recognizing this country has shed 5 million manufacturing jobs in 20 years, hurting millions of Americans, Trump has pledged to go after China and Mexico. Will these policies work? Not necessarily, but he at least provides the illusion of caring.

For many Americans, the past 20 years have been hard. While Clinton oversaw an economic expansion, manufacturing sputtered in his second term and his foreign policy left us less safe. While Bush’s ability to keep us safe after 9/11 is a tremendous accomplishment, his economic policy is mixed and he is not blameless for the financial crisis. Under Obama, our record has been tepid with inequality worsening while his dithering in the Middle East has left us more unsafe. The establishment and mainstream political parties have failed many Americans, and it is no wonder they have looked elsewhere, to someone out of the political class addressing their security and economic concerns, Donald Trump.

That is why the efforts to marginalize Trump based on his egregious rhetoric have failed spectacularly. The establishment is pointing out to voters what the establishment doesn’t like, but these voters have lost faith in the establishment because it has failed to deliver for them. The only way to attack Trump is to effectively argue he, one of the world’s greatest marketers, is selling a false bill of goods and won’t deliver. Someone must also step up and detail an economic vision that re-enfranchises a middle and working class that has been left behind.

Until then, we are destined to hear this self-aggrandizing candidate offer more unserious if not offensive plans while his poll numbers likely stay high. Trump’s anti-Muslim ban runs counter to the values we espouse and would be a dangerous degradation of constitutional rights. This has to be the impetus for other candidates to actually offer plans that will bring the middle and working classes into the fold. Unless someone else offers a compelling vision to these voters, the Trump phenomenon isn’t going away, no matter what he says.

Putin’s Goal: Prove NATO’s Dead

After years of provoking Western powers, Vladimir Putin finally crossed someone who was willing to stand up to an increasingly imperialistic Russia when Turkey shot down a Russian jet that had violated its airspace. It is in many way fitting that the man with the strength to act was President Recep Erdogan who is emulating the Putin model at home. Facing term limits as Prime Minister, Erdogan shifted to the Presidency, which was previously a ceremonial role, and has been moving powers to that office. As such, he remains the de facto leader of the country as evidenced by the fact he, and not the PM, is the person Putin and President Obama interact with during this and other crises. As with Putin in Russia, in Turkey, the powers increasingly are endowed to the man not the office. Just as Putin has ramped nationalistic rhetoric the past decade to consolidate public opinion, Erdogan has let religion creep into a government that has been proudly secular to secure support. In Erdogan, Putin has a worthy and like-minded adversary.

While some of his actions have been unseemly, the fact is Erdogan is an ally in NATO with Turkey an indispensable nation in the Middle East that on balance is a positive influence. That raises the stakes of this incident severely, and a NATO power has not shot down a Russian plane since 1952. With Russian and American planes flying over limited airspace, the risk of accident or unintended escalation is great, and with our nuclear arsenals, the cost of a worst case scenario is unimaginable. Given the mutual defense clause (Article 5), a Turkey-Russia skirmish is equally dangerous.

Now, I do not ascribe to the view that this incident could be the precipice of a world war, despite the fact World War I was beget by a minor incident. Irrespective of constant underestimation by some on the left (who seem to have a real penchant for underestimating threats, mind you), Putin is not an oafish brute, seeking to use hard power everywhere. He is a strategic thinker who uses hard power only when necessary. A direct Turkish-Russian war is in no one’s interest. His goal is a different one entirely with long-lasting geopolitical implications: to prove what we secretly fear to be true, that NATO is dead.

NATO enlargement has been a key policy priority for years, and it is a wise policy assuming two conditions are met. First, the new country’s principles and policies are in-line with the organization’s goals and values (one does not typically allow enemies into an alliance). That condition has largely been met during enlargement, and if anything the former Soviet States who have been the focus of enlargement more forcefully support a united Europe than existing ones. Second, member nations must have the same willingness to provide for the common defense of new members as existing ones, for a failure to defend any nation would undermine the basic fabric of the alliance. If NATO members are unwilling to fight on behalf of Country X, they should not accept Country X into the alliance. This is the condition that Putin is wisely testing. Invading Turkish airspace is not intended to provoke Turkey; it is a test of NATO’s resolve. We must calibrate our response accordingly.

For months, Putin has been provoking the West from buzzing U.S. ships to sending submarines near Swedish waters. Since launching airstrikes in Syria, Russia has violated Turkish airspace several times, and after repeated warnings, Turkey shot down an unmanned drone last month. It must also be noted that the fact Russia is bombing near the Turkish border is your evidence he isn’t focused on defeating ISIS as they do not control that territory. He is bombing moderate rebels to help boost Assad’s grip on power. Putin does want to eradicate ISIS eventually as that’s required to help Assad, but his mission is to roll back all rebel groups and is currently focused on moderate rebels to ensure there is no credible alternative to Assad, or an Assad-like crony. Of course, some of these rebel groups, including the Turkmen, are supported by Turkey, only antagonizing Russian-Turkish relations further.

It is from this perspective that Erdogan’s decision to down a Russian jet must be viewed. Russia has ignored repeated warnings about entering your airspace and is killing the very rebel groups you have been helping. It’s an exasperating situation that can fairly be seen as an act of war. So when a Russian plane entered Turkey, even if it was for less than 30 seconds, Erdogan felt compelled and was entirely justified in acting. To be clear, Erdogan is completely in the right. That said, I think Erdogan likely made a strategic error here. It is one thing to shoot down an unmanned drone; it is another to shoot down a jet, which led to the death of the pilot and a marine. The fact the Russian plane appears to have been shot down over Syrian territory also makes the decision even more questionable.

If anything, this incident has given Putin cover to intensify bombing against the pro-Turkey rebels, and he will likely deter tourism (Turkey has a mock-Kremlin so many Russians visit it) and other joint economic projects. Shooting down a Russian jet also increases the tail-risk of the situation escalating beyond anyone’s controls.

Is a 17 second violation enough to merit being shot down? The slippery slope argument is powerful here, if not 17 seconds, is 1 minute enough, 5 minutes? Further, the history of appeasing strongmen in the hopes their thirst for expansion is satiated is disastrous, and a violation of airspace is a violation no matter how long it lasts. That said, my reaction given the brevity of the incident would have been to give Putin just one more mulligan, have scrambled jets but not shot, come out publicly with the information a Russian jet violated Turkish air space, publicly vow to shoot down any jet that enters the air space going forward, and proactively offer coordination to avoid a similar incident (an offer which Putin would likely ignore). Should a jet violate the airspace after Tuesday, I would then shoot it down without hesitation. This policy to me would not fall into the appeasement camp, but be a final proverbial warning shot that I would then act upon if necessary (unlike certain people who erase their red lines).

We are now in a dangerous situation, one Putin precisely wants to be in. What if he violates Turkish airspace again? Erdogan would have to act again, but does that just result in further escalation from Putin? We also know that Europe, France in particular, sees Putin as an essential partner in Syria. Thanks to years of dithering on our part, Putin has been able to insert Russia as an integral player in a political solution. He and Iran continue to prop Assad up, and unless we are willing to put in our ground troops and risk direct conflict, they will have to acquiesce to any political transition. Putin is using Syria to gain leverage in his real area of territorial ambitions: Europe. Therefore, our response to his aggression needs to be centered in Eastern Europe.

Putin is fully aware Europe wants him involved as a partner in the fight against ISIS, and as such, he has us over a barrel. While Europe seems willing to continue the existing sanctions against Russia over his invasion of Ukraine and annexation of Crimea, they are unlikely to support a significant ratcheting of pressure for fear that will preclude him from cooperating on the Assad question. Putin has the ability to keep provoking with little if any ramification. As such, he will continue poking to find the weak underbelly of NATO to exploit it.

In all likelihood, NATO members urged Erdogan to soften just as we urged France not to invoke Article 5 after Paris, which is shameful. Does anyone really think Italy is willing to face off with Russia over Turkey? NATO membership has devolved into a two-tier system: nations whom we would defend no matter what, and nations who we would defend depending on the aggressor. Now, Turkey is such a critical player in the Middle East, it may be a core member, but this flare-up will only serve to increase the tensions between the Russia hawks and doves in NATO. This could be a prelude to a stiffer test of NATO’s resolve.

Ultimately, there is no strategic reason for Putin to war with Turkey, but there are NATO members that should be worried. In particular, I have concerns about Estonia, which has a 25% Russian-speaking population; remember, Putin used supposed discrimination against Russian-speakers to explain his annexation of Crimea. He also exploited this population to foment an “internal” resistance in East Ukraine that has totally crippled the nation. Estonia is in the process of fencing its Russian border over this very fear. The appearance of an internal rebellion is preferable for Putin as it would make it easier for some NATO members to say Article 5 does not apply (it must be an external aggressor). With its large Russian population, Latvia too is a potential target.

Estonia is a country of 1 million, and Western Europe is uninterested in a direct confrontation with a nuclear power, especially given the pressing problems in Syria. Turkey was the first attack on NATO, and the Baltic States are the obvious next target. While these are small nations, their defense is critical. Once it appears Article 5 does not apply to a member, how can we know what members of NATO are really protected? By enlarging the alliance to nations we are unwilling to protect, we actually risk shrinking the alliance in the long-run. Sure, the U.S., Canada, Germany, France, UK, Poland and others are almost certainly core nations, but Eastern Europe should be petrified. How important are they? Are Germans willing to die for Slovenians should Putin go too far?

NATO is now an alliance without a cause and as a result is dying a slow death. What is its raison d’être now that the Soviet Union is gone? It has been wandering aimlessly without any core objectives; all the while, European armed forces have decayed and much of the continent is headed for economic and geopolitical irrelevance. Eastern Europe sees Putin for the threat he is, but the rest of Europe and current US leadership doesn’t see Putin as a mortal danger. We are minimizing (if not ridiculing) his aggressiveness as a result. We do so at our own peril.

Fracturing NATO and cracking the façade of a united Europe would be a dramatic diplomatic coup and undermine the security order of the world. Action in Estonia, if not responded to, would render NATO impotent and show the US, not only unwilling to enforce red lines, but unwilling to defend allies. That could have cascading ramifications across Eastern Europe and Asia where American allies like the Philippines, Taiwan, Japan and South Korea face an increasingly adversarial and expansionist China. If they question U.S. commitment, we risk capitulations that could up-end the balance of power in that region.

This is what at stake. We are not on the precipice of a Turkey-Russia war (in all likelihood), but we face something equally dangerous. Putin is pushing around the edges of NATO to test how united we really are, and if we actually will honor our commitments. Proving that Article 5 is really more bark than bite for non-core nations could unravel the US-security compact that has kept the world safe, and we in its center, in favor of a world where the Russia-China-Iran axis gains strength and US reliability is questioned. The seeds have been sown for a second Cold War, if it has not already begun.

In response to the Turkish air invasion, we must make crystal clear that NATO support cannot be questioned. We have increased our military presence in the Baltics a bit, but NATO needs to move beyond a token presence. Announcing further deployments to Estonia and the Baltics in the wake of the Turkey incident would be a clear signal to Putin that he should not test NATO resolve. Simultaneously, we should commit to build the cancelled-missile defense shield in Eastern Europe, for which the Poles have clamored. This would apply a real cost to Putin’s actions. If you mess with a NATO country, it must be clear, we will work against your strategic objectives (dominion over Eastern Europe) and redouble commitment to member nations. Putin’s goal here is not to intimidate Turkey; it is to prepare for a grand pivot to Europe. Accordingly, NATO must pre-emptively harden its European positions.  Whether he is actually willing to call NATO’s bluff in the Baltics is uncertain, but we should pro-actively make clear NATO commitments aren’t a bluff to ward off any potential Russian intervention.

With the rise of ISIS, it should be Eastern Europe in a panic. Putin has built leverage over Europe in Syria and is now testing NATO. We must stand firm and signal our commitment to all member nations. Putin, like any thinking person, can see that NATO is divided with many members likely lacking the will to risk war with him over smaller, newer members. Destroying the illusion of NATO joint security and unwavering US commitment to its treaties would be the greatest political coup since Nixon opened relations with China. That is why we must come out now, in the wake of Turkey, and dispel these concerns, affirm all NATO nations stand firm, increase our presence in the Baltics to comfort these nations, and build the begged-for missile defense shield. Maintaining the balance of power not just in Europe but also in Asia requires this reaction and a steadfast commitment to all allies, big and small.

NATO is being tested in a way it hasn’t since the Cold War ended. We must prove it is an organization that has not outlived its usefulness. To do otherwise would undermine US leadership and the quarter-century of great power peace and prosperity it has bought us.

Post Paris: Ashamed of our President

NB:

In the days following the heartbreaking, cold-blooded terror attacks in Paris, I have opted not to post anything in this forum because my thoughts have been very harsh (I feared overly so). In times of strong emotion, one can say something they later regret, and I did not want to fall into this trap, stretch my arguments, or offer commentary I would later wish I hadn’t. Instead, I have pored over my words to be as precise as possible and ruminated over my thoughts so that I could articulate exactly as I feel without writing anything regrettable. I am saying this upfront because what follows is (for me at least) a very strongly-worded condemnation of not only our President’s policies but of our President himself as well. Personal attacks are quickly tiresome and rarely justified, and I attempt to avoid them. However after several days of thought, I have come to a clear conclusion: President Obama’s policies are making us less safe, likely because he has succumbed to delusion over fact, and he is undermining our moral authority on the world stage, which is the gravest of offensives. I am ashamed of our President, words I have never previously uttered—these words still feel foreign to me. Below are my views on these two points (the first is policy-driven, the second point houses my more severe criticisms for those who prefer to skip ahead); I hope you consider reading this worth your while, regardless of whether you agree with my conclusions.

  1. President Obama is in a State of Delusion

Friday marked a clear turning point in the war against the Islamic State (ISIS). First, it bombed a Russian airliner, then it perpetrated a massive suicide attack outside Beirut, and it culminated with the devastating, extremely well-planned, coordinated attack in Paris Friday night (additionally, on Tuesday, Germany was forced to cancel a soccer match and concert in Hannover due to “concrete evidence” of an impending attack). ISIS has morphed from a powerful conventional ground force into a terrorist organization with al-Qaeda-like capacity to launch terrorist attacks in the Western world. This is a deeply disturbing development that makes ISIS a clear and present danger to the United States and our European allies.

We can engage in counterfactuals all day to assign the blame of ISIS’s rise. Many on the Left say if Bush hadn’t invaded Iraq, ISIS would not be here, and there is some truth in that point (not that Saddam was a saint). On the right, we can point to the fact Obama pigheadedly refused to negotiate a status of force agreement to ensure a stable transition because he wanted to win the political points associated with a rapid withdrawal. Fair-minded individuals can see that a lot of people share the blame for the conditions that allowed ISIS to form. However, the blame clearly shifts to Obama as the question turns to gains ISIS has made in terms of its capabilities and territory, taking control of half of Syria and Iraq, a landmass larger than at least 13 states.

Yet while speaking at the G-20 summit on Monday (after the Paris attacks), President Obama reiterated, “We haven’t underestimated their abilities.” Well, I hate to see how dangerous ISIS could be if we had underestimated them. While being dismissed as a JV-team, ISIS was racking up conquests in Ramadi, Fallujah, and Mosul while we seemingly assumed they had the staying power of the pet rock. Yet, here we are 18+ months later, ISIS has barely lost territory, likely has tens of million (probably north of $100 million) in the bank, and has developed the ability to launch outward attacks of terror. We are left with two possibilities: the President is a bald-faced liar, pretending his strategy is working to avoid losing political standing, or alternatively, he is in a state of delusion. Neither option is a flattering one.

Considering the Administration is doctoring its own intelligence reports to better fit their narrative, reality be damned, I find myself in the delusion camp. A further sign of delusion is that the Administration seems hell-bent on continuing with the same, failing strategy (if Obama were lying to the public, I like to think he would change things behind the scenes). Ben Rhodes, the deputy national security advisor, promises a mere “intensification” of the current strategy, comments Obama has since echoed. However, the underlying strategy is misguided.

Here is what Obama said hours before the Paris attacks: “Well, no, I don’t think they’re gaining strength. What is true is that from the start our goal has been first to contain, and we have contained them.” It is truly stunning how badly Obama could misread ISIS to think we had contained them. Even if, simply for the sake of argument, we concede that ISIS has been territorially contained, that is not success—it is an undeniable failure. Iraq has been ravaged, and what remains is quickly descending into an Iranian-proxy state. Similarly, Assad is merely a puppet for Iran and Russia. The status quo makes it easier for Iran, with Russia by its side, to become the regional hegemon, controlling the capitals of Iraq, Lebanon, Yemen, and Syria. That tilts the balance of power in the region decisively against us, and nuclear deal or not, it is impossible to label a Russia-Iran axis as friendly to democracy or our interests (I’ve written about this very issue weeks ago).

By definition, a policy of containment cedes its current territory to ISIS. In this territory, ISIS can train and build the capacity to launch outward attacks, for which it has just proven a stunning proficiency. Was the policy of “containing” al-Qaeda to Afghanistan particularly wise in the 1990s? Obviously, not. Controlling territory gave it free rein to plan and execute the 9/11 attack. Should it surprise anyone that giving ISIS the same set-up allowed it to execute attacks of its own? All the while, ISIS has built cash reserves, trained a revolving door of foreign fighters who have returned home to the West, and entrenched itself in its territory, ensuring removal will be costlier and bloodier than necessary. The policy of containment has been disastrous at every level. Obama has allowed Iran to gain influence, Assad to hang on, and ISIS to develop al-Qaeda-like capacity.

Not since Richard Nixon thought he could survive Watergate, has a President been so detached from reality. Nixon’s delusions put the nation in a constitutional crisis, and Obama’s threaten a security crisis. This crisis is even more acute for Europe, which has faced a tsunami of migrants entering without any vetting. Plus, its Schengen area policy of open borders has allowed these migrants to travel to any member state with minimal if any tracking, making it impossible for any government to know who is in their country at any given time. Each European nation is only as safe as the nation with the weakest borders, in this case Greece (austerity to deal with its budget debacle has crippled its ability to police borders and hold migrants). This migrant crisis, coupled with returned foreign fighters, exacerbates Europe’s security situation. Amazingly even though his own FBI director has expressed concerns about our vetting, Obama wants to accept at least 10,000 Syrian refugees and has suggested anyone who opposes him is a bigot (I would note the presumed head of Senate Democrats, Chuck Schumer, happens to have reservations about the current system). Obama has avoided policy debate and simply attacked the character of those who oppose him on this issue. The rational decision is to suspend the program for 3 months, ensure all vetting is done to acceptable standards, and then if concerns are dealt with, reopen the program.

For 18 months, we have watched ISIS grow like a cancer as Obama underestimated them and then employed a wrongheaded policy of containment. He touts launching 8,000 airstrikes, though this amounts to ~20/day, less than 1/5 the pace of Bill Clinton’s strikes in Serbia. On Monday, Obama had the gall to say, “We have been fully aware of the potential capabilities of them carrying out a terrorist attack. That’s precisely why we have been mounting a very aggressive strategy to go after them.” That is indisputably untrue; our bombing campaign has been anything but aggressive. These strikes barely manage to slow the advance of ISIS but do nothing to roll back its capacity. Our President’s policies are that of an inveterate invertebrate. He fecklessly dithers, leaving us in a situation where there are no easy options. In 2013, we should have enforced a no-fly zone and aided the Free Syrian Army in their fight against Assad, but Obama backed away from his own red-line.

Now, Russia is propping up Assad, moderate rebels have been squeezed from both sides, and ISIS has a serious foothold. A full no-fly zone risks confrontation with Putin. Considering how Obama backed down to Assad and Putin in Crimea, it is hard to see Putin taking our no-fly zone seriously. The temptation to partner with him is tantalizing, put aside the Assad question now, deal with ISIS, and then work on Assad. Aligning with Putin is like sleeping with the devil, fun at first not so good in the long run. If we deal with ISIS together, there is no pressure for Putin to support removing Assad (except to replace him with another crony—any crony will do!).

Instead, the US must significantly intensify our airstrikes, encourage rather than discourage France to invoke Article 5 of NATO, and build a Western coalition to systematically roll back ISIS. This means directly arming the Kurds, whom we have long-standing relations with and who are adept fighters. US troops embedded with the Kurds and FSA, Gulf partners providing ground troops, and NATO air-strikes and some ground troops can decisively roll back ISIS. Simultaneously, we need to create safe zones where refugees can go in Syria and Jordan, financed by the West, to keep refugees from flooding Europe. We, both Western and Muslim states, then need to maintain a presence to help new governments in Iraq and Syria build the institutions and structural strength to endure. This is a battle among civilizations, and we need to treat it as such.

The idea containment would ever work is a pure fallacy, perpetrated by an administration unable to deal with ISIS and unwilling to admit its mistakes. Despite all the evidence to the contrary, Obama continues to delude himself into believing the strategy is working. If we continue on this course, the threat ISIS poses to the Western world will only grow. I fear a world in which Paris is not an anomaly but the beginning of a long string of attacks, apparently we barely avoided another in Germany Tuesday. Simply containing ISIS allows them more time and space to develop their capabilities and export there terror. We need to get tough now; to do otherwise is to gamble the security of our homeland and that of our allies.

  1. President Obama Has Shamed this Nation

This (briefer) section pivots away from my policy critique and focuses instead on the character of our President. While I have never been a fan of his simplistic and pessimistic policy platform, I have long considered President Obama to be a good man and have defended him to fellow conservatives as such (at the expense of being dubbed a RINO occasionally). As his administration progressed, this has been a tougher argument to make, particularly after he blatantly lied about his healthcare plan (you can keep your doctor…). However, there is a difference between telling a lie and shaming the nation, or at the very least, there needs to be a very high standard when it comes to saying someone has shamed the nation (Nixon is the lone President whom I had previously put in this basket in the post-WWII era). Monday that changed.

While on the Sunday shows, Rhodes suggested Paris was a “setback.” People do misspeak or overstate their case, particularly on talk shows, and I aim to give all the benefit of the doubt, despite the callousness of that remark. Then on Monday, we were presented with dueling remarks from French President Hollande and Obama. Hollande powerfully declared to his nation: “France is at war. No barbarians will prevent us from living how we have decided to live. To live fully. Terrorism will never destroy the republic, because the republic will destroy terrorism.” Hollande understands the stakes of this battle. We are dealing with suicidal maniacs who want the world to burn, and we need to pulverize them. Hollande is seizing the gravity of this moment to eradicate a great evil from this earth.

Our President could not match this rhetoric. Instead, Obama doubled down on Rhodes line, saying, “The terrible events in Paris were a terrible and sickening setback.” Setback was not an off-the-cuff remark, it was clearly chosen in advance by our President to describe the Paris attack after being test-run by Rhodes Sunday. Our oldest ally has just suffered its worst terrorist attack since World War II, and that is all Obama has to offer. Families were destroyed, innocent civilians murdered, and children’s lives and sense of safety have been forever destroyed. This is not a mere setback; Friday we saw the face of evil. Even Orwellian newspeak cannot contemplate such emotionless verbiage.

Our President takes no issue calling his political opponents immature racists who are helping ISIS recruit (he did so earlier this evening!), yet he has no moral outrage to show psychopathic terrorists? Meanwhile, his Secretary of State suggests we shouldn’t be so shocked about the Charlie Hebdo shooting from earlier this year as though you make yourself a target merely by engaging in political discourse. That is anathema to the founding principles of this country, and the Western world.

Our President demeans fellow republicans with alarming ease but is incapable of calling out true evil on the world stage. Is he afraid of offending ISIS? There is no rationale for this cowardice. America is the world’s moral beacon, and as such, we have a responsibility, no a duty, to stand with allies and call out evil, yet we paper over a vicious action that has rocked France to its very core. In doing so, Obama is abdicating the moral authority of his office, and undermining our position in the world. We are seeing a stunning, virtually unprecedented, absence of leadership. How can we rally the world against evil when our President is all but unwilling to acknowledge its existence?

Obama’s remarks in the aftermath of Paris are unfathomable and show a moral compass gone haywire. The slaughtering of over 100 civilians is not a setback; that language is disgraceful, particularly when contrasted with the language he uses to demonize republicans. I shudder at a President who shrugs off allied civilian mass murders. We have a responsibility to lead the world, and Obama is throwing away our moral authority, which is particularly astonishing since he went on an apology tour over our supposed sins to restore it.

This is disgusting. Decency and a love for humanity demands anger, pain, and condemnation when discussing Paris or any terrorist attack. Hollande understands this; virtually all civilized people do. Yet, our President is so busy playing politics, he can see it as a mere setback in his strategy. Tell that to the families of the murdered.

President Obama has been disgraceful in the aftermath of these attacks, and I feel ashamed he is our representative to the world.

 

 

Ignoring History: The Lawlessness of Obama Executive Orders

On Tuesday, the Senate overwhelmingly passed the National Defense Authorization Act 91-3, leaving President Obama no choice but to sign it in lieu of suffering a humiliating veto override. Within the act, there is a provision banning the President from moving the enemy combatants held at Guantanamo Bay (GITMO) into the United States or third countries, thereby blocking the President from fulfilling his wrongheaded campaign promise in a stunningly bipartisan fashion.

Not to be deterred by an act of Congress (he is only an inveterate invertebrate when dealing with real enemies like Russia and Iran after all), the White House has hinted the President may use executive powers to flout popular will and bring detainees into the US anyway. Some like Senator Dianne Feinstein and others are suggesting the President could have the authority to do this under his Constitutional Powers as our Commander-in-Chief. They argue the President has essentially unlimited powers over just about any tactical decision in war-time. Funny, precisely these arguments have been made before, only to be blasted in one of the most important Supreme Court decisions you probably haven’t heard about (more on that below!).

These current arguments calling for more power to be placed in the executive are particularly rich, coming in a week when a Federal Appeals Court upheld an injunction on Obama’s executive order rewriting our nation’s immigration laws. Now, the President is turning to the Supreme Court hoping for a more receptive hearing; however, the case in favor of his order is so dubious he spent years explaining how he couldn’t “fix” immigration laws by executive fiat.

One’s view of the constitutionality of his immigration order and potential GITMO one should transcend your view of whether they are wise policy. The core issue is exactly how much power is vested in each branch of government, not whether the underlying policy is well-intentioned. While questions of process often illicit droopy eyes, its importance cannot be understated. Our founders built an intricate system of checks and balances to carefully ward off tyranny, and upsets in this balance can have long-lasting implications. We can take for granted how much of a historical (and sadly even contemporary) anomaly the peaceful transition of power we enjoy every Inauguration day is.

I’m not saying we are on the verge of despotic rule; the issue here is cut and dry so there is no need to hyperbolize. Rather, it is about ensuring that powers remain at the proper branch to avoid the tyranny of one branch over another at the expense of public’s will. Allowing power to wrongly accumulate risks an incremental, creeping tyranny. For 85 years, we have seen more power coalesce around the Presidency, primarily at the expense of the legislature, a phenomenon that has happened under both parties’ watch, to the point where congressional law at times feel like mere guidelines for the President. Here on GITMO in particular, we have a congress asserting its right, but a President looking to ignore it anyway, the public’s opinion be damned.

In actuality (where I happen to live), this is not an unprecedented situation, rather there is a specific precedent that crystallizes the illegality of such an executive order. In 1950, Harry Truman was President, and we were waging war in the Korea Peninsula. Truman faced a steelworker’s strike, which would have disrupted the supply of arms to our forces. Truman saw keeping steel mills open as a matter of national security. Now, Congress had passed two laws, the Taft-Hartley Act and the Selective Service Act (its applicability in this case can be debated), which could have been used to keep the mills operating. Instead, he circumvented the will of Congress and unilaterally seized the plants to be run under the watchful eye of the Federal Government. Believe it or not, legal calamity ensued.

In a 6 to 3 decision in Youngstown v. Sawyer, the Court delivered one of the biggest pushbacks against a Presidential power grab in the century. Truman’s argument that his war powers granted him the ability to seize private property was found sorely wanting. In his concurring opinion (which is the opinion whose influence has endured time in this case), Justice Robert Jackson explained the three tiers of Presidential power (courtesy of Findlaw, emphasis mine):

  1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, [343 U.S. 579, 636] and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government [343 U.S. 579, 637] as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
  2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
  3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling [343 U.S. 579, 638] the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Essentially, Jackson believes the Court needs to view Presidential power in three ways. In the first situation when the President is acting thanks to an act of congress, he has the most authority (both his and Congress’s combined). In the second, Congress is silent, which could lead to a fuzzy gray area over whether it is Congressional or Presidential authority. This means the President is not due the same level of deference as when Congress acts alongside him. In the third situation, the President acts against an act of Congress (either clear or implied), so his power is at the lowest ebb because the Court needs to disable Congress’s ability to legislate in that area. As such, the Court would be ruling for the President and against the Congress, threatening the balance of powers.

Incidentally, the President’s immigration executive order falls squarely into the third category where he is trying to move directly against the intent of our immigration laws. As congress indisputably has the authority to write our immigration laws, the President’s power here is non-existent, and his executive order is blatantly lawless.

Now while Gitmo also clearly falls into the third category, it is a bit trickier constitutionally as the President definitely has more power when it comes to waging war than in domestic affairs, though this power is not absolute. In Youngstown, Jackson found Truman was in the third scenario as well—the parallel fortuitously continues. The Court did determine that Congressional laws dictating the process for dealing with strikes (that were totally ignored by Truman) were still relevant during war-time as the powers of the Commander-in-Chief are actually “cryptic” to quote Jackson contrary to what Obama’s cheering squad now suggests. Jackson goes on (emphasis mine):

He has no monopoly of “war powers,” whatever they are. While Congress cannot deprive the President of the command of the army and navy, only Congress can provide him an army or navy to command. It is also empowered to make rules for the “Government and Regulation of land and naval Forces,” by which it may to some unknown extent impinge upon even command functions.

This statement clearly goes against the pre-planned argument from Obama’s allies that Congress is meddling in tactical matters. That fact is not in and of itself problematic, particularly because we are dealing in part with an internal issue where the President would be bringing enemy combatants into the United States itself. Jackson eloquently notes the danger of letting a President use his foreign powers to assert additional powers within our borders (emphasis mine):

But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation’s armed forces to some foreign venture….

 

This argument holds whether we are dealing with enemy combatants or steel plants. The idea our elected representatives would be powerless over what happens within our country is abhorrent to the very essence of democracy. Moreover, this line of attack doesn’t just come from our Courts, it is directly address by our founders themselves. Jackson again (emphasis mine if you hadn’t caught on by now):

That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history. Time out of mind, and even now in many parts of the world, a military commander can seize private housing to shelter his troops. Not so, however, in the United States, for the Third Amendment says, “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” Thus, even in war time, his seizure of needed military housing must be authorized by Congress.

Our founders went out of their way to expressly give our Congress legislative power in a tactical matter (housing soldiers) when it occurs on our soil. Ironically, many feel like the 3rd amendment is quaint if not anachronistic, serving no purpose in a modern society such as ours. They are wrong as the wider applicability is clear. The founders did not envision a President being able to take total power, Roman dictator style, during a time of war. They went out of their way to carve a role for Congress when the matters of war are internal in nature. How often in the course of human history have we seen dictators use foreign adventures as an excuse to tighten their grip back home? That is anathema to our carefully crafted constitution, ensuring democracy and balanced powers in peace and war time alike.

Given this reasoning, it isn’t hard to see that Congressional laws in that 1952 case were relevant and that Truman over-stepped. Was Truman attempting to become a dictator? Of course not; in totality, he was still one of our finer Presidents. This was merely a case where he reached too far in a time of war, and the Supreme Court took the opportunity to draw a clear line in the sand regarding Presidential power. By the same token, one doesn’t have to think Obama is a dictator to find his executive orders to be an overreach.

If there is any cogent argument differentiating a GITMO executive order from Truman’s in Youngstown v. Sawyer, I have yet to come across it. With Obama planning to sign the NDAA that has GITMO restrictions, any executive order would clearly fall in Jackson’s third scenario (contradiction with Congress’s intent) where Presidential authority is at its weakest. Bringing detainees into the United States proper is without a doubt an internal matter, giving Congress the constitutional power to legislate on the issue. That simple fact evaporates what legs that aspect of order stands on.

What about the aspect of the law that bans the President from sending detainees to Libya, Syria, or elsewhere? Does the fact the United States proper is not involved negate the specific “internal” Congressional powers implied by the 3rd amendment? In short, no. In 2008’s Boumediene v. Bush, Justice Anthony Kennedy’s majority opinion makes clear the US has “de facto” sovereignty over GITMO, making the fundamental rights of the constitution applicable there. This ruling functionally makes GITMO “internal,” providing Congress with authority. In other words, Congress has the power to put restrictions on the closure of GITMO and transfer inmates anywhere, not just to the United States but to Libya and other third countries as well.

Looking at simple Supreme Court precedent underlines the sheer lawlessness of Obama’s plans. In Youngstown, Presidential powers are clearly delineated, and on both immigration (where Courts are already standing up) and GITMO (where an executive order may be in the works), his power is at its nadir. Plus, it now appears Democrats plan to argue that being in war gives a President absolute power (funny, it seems like just 8 years ago they argued the opposite), but this does not jive with our history or the obvious intent of our founders and is really an effort to stack powers inside an Imperial President. No matter your policy preference, this is dangerous as it takes power away from the power of the people’s representatives in Congress who are a necessary check. Our constitutional balance of power is a delicate one; we mustn’t unnecessarily tamper with it and risk breaking it for our next generation. Certainly not to score cheap political points.

Obama has been fond of shamelessly saying Republicans want a return to the 1950’s for women’s rights. Well, it appears in his zeal over studying 1950’s contraception policy, he skipped over that decade’s constitutional lessons. Ironic; he was a constitutional professor after all. Must’ve skipped those classes.