January 17, 2020 5:00PM

As Supreme Court Considers Several Qualified Immunity Cases, A New Ally Joins The Fight

The Wall Street Journal recently published an op‐​ed by Institute for Justice Senior Attorney Robert McNamara, in which he describes IJ’s decision to join the raging battle against qualified immunity, a court‐​confected doctrine that provides rights‐​violating police and other government officials with what Cato has described as an “unlawful shield” against accountability for their misconduct. IJ’s focus on this issue will be a welcome addition to a fight that Cato has been waging for nearly two years with help from an astonishingly cross‐​ideological cast of public interest organizations ranging from the ACLU and the NAACP Legal Defense Fund to the Alliance Defending Freedom and the Second Amendment Foundation.

Cato launched its strategic campaign to challenge the doctrine of qualified immunity—an atextual, ahistorical doctrine invented by the Supreme Court in the 1960s — on March 1, 2018. Cato’s kick‐​off panel featured Judge Lynn Adelman of the Eastern District of Wisconsin, who has sharply criticized the doctrine; Professor Will Baude, whose enormously influential law review article has formed the backbone of the legal challenge to qualified immunity; and Andy Pincus and Victor Glasberg, two practitioners with ample experience confronting the harsh realities of the doctrine. Shortly after that conference, George Will noted on Meet the Press that there would be a “national discussion” about qualified immunity, “led by the Cato Institute.”

The centerpiece of Cato’s strategic campaign to take down qualified immunity has been a series of targeted amicus briefs urging the Supreme Court to reverse its precedents and eliminate the doctrine outright. Since launching the campaign in March 2018, Cato has filed dozens of additional amicus briefs in our own name, but we have also organized a massive cross‐​ideological alliance of public interest groups opposed to qualified immunity — what Judge Don Willett recently called “perhaps the most diverse amici ever assembled.” This “cross‐​ideological brief” was first filed in July 2018, in support of the cert petition in Allah v. Milling, a case involving the illegal and unconstitutional solitary confinement of a pretrial detainee in Connecticut for nearly seven months. So unsettled was the state by the onslaught of amicus support that it settled the case by offering the plaintiff more to dismiss his cert petition than he had been awarded at trial.

A diverse array of lower court judges has also been increasingly critical of qualified immunity, with many explicitly calling for the Supreme Court to reconsider the doctrine. To underscore the incredible ideological breadth of the opposition to qualified immunity, it is worth noting that the judicial critics of the doctrine now include nominees of every single President since Carter, as well as one of the two remaining LBJ appointees on the bench. To give just a few notable examples:

  • Judge Don Willett, a Trump appointee to the Fifth Circuit, has explained how “[t]o some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior — no matter how palpably unreasonable — as long as they were the first to behave badly,” and sharply notes that “this entrenched, judge‐​created doctrine excuses constitutional violations by limiting the statute Congress passed to redress constitutional violations.”
  • Judge James Browning, a George W. Bush appointee to the District of New Mexico, has now issued several opinions that include a blistering criticism of the Supreme Court’s “clearly established law” standard, and citing Cato’s amicus briefs for the argument that “qualified immunity has increasingly diverged from the statutory and historical framework on which it is supposed to be based.”
  • Judge Dale Drozd, an Obama appointee to the Eastern District of California, cited Cato’s March 2018 forum in his discussion of the campaign to challenge qualified immunity, and announced that “this judge joins with those who have endorsed a complete re‐​examination of the doctrine which, as it is currently applied, mandates illogical, unjust, and puzzling results in many cases.”

Now, almost two years into Cato’s campaign, the Supreme Court finally appears to be preparing to confront the question of whether qualified immunity should be reconsidered. There are currently six major qualified immunity cert petitions pending before the Court, and the manner in which the Supreme Court has repeatedly rescheduled consideration of these cases strongly suggests that the Justices may be preparing to consider them together — which in turn suggests that they’re looking closely at the fundamental question of whether qualified immunity should be reconsidered. We first discussed this possibility back in October of last year, and we now have even more evidence suggesting the Court may be preparing to take up this issue. Here are the key details about each of the six cases:

  • Brennan v. Dawson. In this case, the Sixth Circuit granted immunity to a police officer who, in an attempt to administer an alcohol breath test to a man on misdemeanor probation, parked his car in front of the man’s home at 8:00pm; turned the lights and sirens on for over an hour; circled the man’s house five to ten times, peering into and knocking on windows; and wrapped the home’s security camera in police tape. The court held that this warrantless invasion of the curtilage violated the Fourth Amendment, but nevertheless granted immunity due to a lack of “clearly established law.” The cert petition in this case was filed on January 11, 2019, and asks the Court to “reign in the qualified immunity standard to … reflect the common‐​law roots of qualified immunity.”
  • Zadeh v. Robinson and Corbitt v. Vickers. We’ve discussed these cases in more detail previously, but Zadeh is the case where the Fifth Circuit granted immunity to state investigators that entered a doctor’s office and, without notice and without a warrant, demanded to rifle through the medical records of 16 patients. And Corbitt is the case where the Eleventh Circuit granted immunity to a deputy sheriff who shot a ten‐​year‐​old child lying on the ground, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat. The plaintiffs in both cases are now represented by Paul Hughes, who filed cert petitions on November 22, 2019, each of which asks “[w]hether the Court should recalibrate or reverse the doctrine of qualified immunity.” Cato submitted briefs in both cases, this time taking the lead on the cross‐​ideological brief, whose signatories also included the Alliance Defending Freedom, the American Association for Justice, the ACLU, Americans for Prosperity, the Due Process Institute, the Law Enforcement Action Partnership, the MacArthur Justice Center, the NAACP, Public Justice, R Street, and the Second Amendment Foundation.
  • Kelsay v. Ernst. This is the case where the Eighth Circuit, in an 8 – 4 en banc decision, granted immunity to a police officer who grabbed a small woman in a bear hug and slammed her to ground, breaking her collarbone and knocking her unconscious, all because she walked away from him after he told her to “get back here.” The cert petition in this case was filed on November 26, 2019, and while it doesn’t ask the Court to reconsider qualified immunity outright, it does ask the Court to “take steps within the confines of current law to rein in the most extreme departures from the original meaning of Section 1983.” Cato filed a brief in support of this petition as well.
  • West v. Winfield. As related in the IJ op‐​ed mentioned above, police officers told Shaniz West that they were looking for her ex‐​boyfriend and thought he might be inside her house, so she gave them permission to go in and look. But instead of entering, they instead called a SWAT team, who bombarded it from the outside with tear‐​gas grenades, effectively destroying her home and all her possessions (the ex‐​boyfriend wasn’t even inside). The Ninth Circuit granted immunity to the officers, on the grounds that no prior case specifically established that this sort of bombardment exceeded the scope of consent that Ms. West gave to allow officers to enter her home. Yesterday, the IJ filed a cert petition on behalf of Ms. West asking the Court to clarify and limit the scope of qualified immunity. As noted, this case marks the launch of IJ’s “Project on Immunity and Accountability,” which is focused on challenging doctrines like qualified immunity that erroneously permit public officials to operate above the law. IJ has previously joined various iterations of the Cato‐​conceived cross‐​ideological brief described above, but we’re looking forward to filing our own amicus brief in support of IJ’s cert petition in West.

The Court has yet to make a final decision about any of these cert petitions, but there’s good reason to think the Justices are preparing to consider at least some of them jointly. First, in every single one of these cases (except West, as it was just filed yesterday), the Court has “called for a response” to the cert petition. Although a CFR alone is no guarantee of a cert grant, it’s an encouraging sign that at least some of the Justices are looking closely at the case, and want to hear more from the respondents about the issue.

Second, the Court’s repeated rescheduling decisions strongly suggest that they’re planning to consider them together, meaning they’re likely to address the fundamental, underlying question of whether qualified immunity itself should be reconsidered. Specifically, Baxter and Brennan were both fully briefed and originally set to be considered in October 2019. But since then, the Baxter petition has been rescheduled five times, and Brennan has been rescheduled three times, most recently on January 8th in both cases. January 8th also happens to be the same day in which the Court called for a response in both Zadeh and Corbitt (with the Kelsay CFR following five days later, on January 13th). It’s hard to imagine why else the Court would postpone these fully briefed petitions for over three months, unless they were holding them to consider along with these more recent petitions raising the same ultimate question.

Of course, this is all still speculative to some degree, and even if the Court does grant cert in one or more of these cases, there’s a wide range of potential outcomes. But the confluence of so many powerful petitions pending at the same time, combined with the Court’s obvious focus on this issue, makes undeniable what Cato has been saying for years — one way or another, the Supreme Court is going to have to confront the glaring legal inadequacies of qualified immunity, together with the massive injustices the doctrine has perpetrated on countless individuals whose rights have been violated with impunity by unaccountable police and other government officials.

January 17, 2020 4:29PM

On “Imminence”: Absence of Evidence is Evidence of Absence

“We caught him in the act and terminated him,” President Trump said in his first public comments about the January 3rd targeted killing of Iranian General Qassim Suleimani. The strike was ordered to avert “imminent and sinister attacks on American diplomats and military personnel.” Over the last two weeks, the Trump administration has offered a farrago of conflicting accounts—and zero evidence for that claim. In this case — apologies to Don Rumsfeld—absence of evidence is evidence that imminence was absent. And, unless you believe the Constitution gave the president practically unbridled discretion to embroil us in war, that means legal authority for the move was absent too.

The Pentagon’s initial announcement made no claim of exigent circumstances: “this strike was aimed at deterring future Iranian attack plans.” Hours later, however, Secretary of State Mike Pompeo claimed the president acted “in response to imminent threats to American lives” — “dozens if not hundreds” of them. Since then, when asked to elaborate, Pompeo has served up (1) a word‐​salad about “situational awareness of risk and analysis”; (2) a backward‐​looking theory by which past attacks demonstrate the imminence of future ones; and (3) the defensive insistence that “it was real,” even if “we don’t know precisely when and we don’t know precisely where” — also, don’t give me that look: “those are completely consistent thoughts”! He may yet crack under questioning.

Don't be so cynical!

Would I lie to you about an “imminent threat”?

“We did it because they were looking to blow up our embassy,” President Trump said last Thursday; wait, make that embassies, plural, four of them, he told Fox’s Laura Ingraham on Friday. Given the administration’s well‐​known preference for keeping Congress in the dark, maybe it’s not surprising nobody mentioned the alleged embassy threat in the post‐​hoc, closed‐​door Hill briefing last week. But surely it’s a little odd that Trump’s own secretary of defense didn’t get the intel memo.

There’s a simple explanation for the Trump Team’s shifting explanations: they’re lying. Leave aside the dubious notion that it’s possible to stop an imminent attack by killing a senior military commander (were the plans just in his head?) — apparently, the president conditionally authorized the Soleimani killing some seven months ago. (According to NBC News, Pompeo and then‐​national security adviser John Bolton even urged Trump to greenlight the hit last June, in response to the Iranians plinking a US drone.) The news that the day of the strike, U.S. forces tried and failed to take out another top Quds Force commander in Yemen further undermines the administration’s story that their aim was to avert an imminent threat.

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January 17, 2020 4:07PM

Ninth Circuit “Reluctantly” Dismisses Kids Climate Case

Today, a split panel on the U.S. Court of Appeals for the Ninth Circuit “reluctantly” dismissed Juliana v. United States, known colloquially as the “kids’ climate case.”

We should all be thankful for the court’s avowed restraint — for much of this controversy, judges in the circuit seemingly champed at the bit to take on central planning of the American economy. A big assist is due the Supreme Court, which bench‐​slapped some sense into the Ninth Circuit.

Here’s the backstory. In 2015, a group of children filed suit in a federal district court in Oregon, alleging that the federal government infringed on on their putative constitutional right to a climate unaffected by anthropogenic global warming.

On its face, the kids’ case is silly. For starters, it’s not terribly plausible to claim there’s an unenumerated constitutional right to a specific atmospheric concentration of greenhouse gases. But let’s assume there is, for the sake of argument. What could a court do about it?

As a remedy, the Juliana plaintiffs sought for the court to order the government to draw up a comprehensive climate plan – one that is subject to judicial approval and ongoing oversight.

The requested relief, therefore, is a court‐​ordered scheme to regulate the American economy. If the plaintiffs had their druthers, a single federal district court judge would become, after the president, the most powerful official in the country. Obviously, that’s a big practical problem with the plaintiff’s argument.

From a legal perspective, the Constitution vests Article III judges with the “Judicial power.” National regulatory plans, by contrast, emanate from the “legislative” or “executive” powers that are the province of the political branches of government. Simply put, judges have no constitutional authority to initiate and oversee major climate policy. 

For these reasons, judges in other circuits have been quick to nix similar challenges. Last February, for example, U.S. Eastern District of Pennsylvania Judge Paul Diamond dismissed a near‐​identical suit. According to Judge Diamond, the Constitution does not guarantee children a right to a “life‐​sustaining climate system.” After disavowing both “the authority [and] the inclination to assume control of the Executive Branch,” he concluded that climate change regulation “is a policy debate best left to the political process.”

Yet, in Juliana, U.S. Oregon District Judge Ann Aiken entertained no such reservations. Not only did she deny two of the federal government’s procedural motions to stop the case, but she initially refused to certify her orders for interlocutory appeal — that is, she refused to allow the government to appeal her procedural orders before the case went to trial. It seemed as if she wanted to try Juliana.

The Ninth Circuit, too, seemed eager for the case to proceed. Twice, the court denied government petitions to end the case.

If all these judges in the Ninth Circuit were so eager to take the case, then how did Juliana get dismissed today?

The answer involves unmistakable signals sent from the Supreme Court. At various points during the litigation, the federal government asked the Court to pause the case. In denying these motions as untimely, the Court included language that unequivocally imparted its concern regarding the constitutional viability of the claims at issue in Juliana.

For example, in July of 2018, the Court observed that “The breadth of respondents’ claims is striking,” and further directed District Court Judge Aiken to “take [justiciability] concerns into account.” A few months later, the Supreme Court basically ordered the Ninth Circuit to hear the federal government’s appeal (on justiciability grounds).

After the Supreme Court’s second order, the Ninth Circuit leaned on Judge Aiken to certify her procedural orders and thereby permit the government’s appeal. Last June, the Ninth Circuit held oral arguments. Today, it “reluctantly” dismissed the case, holding:

We reluctantly conclude … that the plaintiffs’ case must be made to the political branches or to the electorate at large, the latter of which can change the composition of the political branches through the ballot box. That the other branches may have abdicated their responsibility to remediate the problem does not confer on Article III courts, no matter how well‐​intentioned, the ability to step into their shoes.

It bears noting that a majority on the three‐​judge panel dismissed Juliana over the impassioned (though wrong) dissent of Judge Josephine L. Staton. So a third of the panel would have allowed the case to proceed, while the rest ended Juliana only with “reluctance.” It may not be pretty, but I welcome the outcome nevertheless.

January 16, 2020 5:17PM

Agriculture Purchase Commitments Under the U.S.-China Trade Deal: The Case of Beef

By Simon Lester and Huan Zhu

Yesterday, President Trump and Chinese Vice Premier Liu He signed a “phase one” U.S.-China trade deal. A “phase two” deal may be coming, although the timing is unclear, and many people (including us) are skeptical that it will happen any time soon. There are some technical and complicated parts of the phase one deal, and it will take some time to digest it all and come up with an overall evaluation. But it’s worth exploring some specific aspects right away. One of the most talked about parts of the phase one deal is the commitments by China to purchase large amounts of U.S. products, including agricultural products. Article 6.2, paragraph 1 of the deal has broad details of these purchases:

During the two‐​year period from January 1, 2020 through December 31, 2021, China shall ensure that purchases and imports into China from the United States of the manufactured goods, agricultural goods, energy products, and services identified in Annex 6.1 exceed the corresponding 2017 baseline amount by no less than $200 billion.

Given that U.S. exports to China in 2017 were about $180 billion, an additional $200 billion over two years would be a massive increase. The deal further divides up these purchases into manufactured goods, agricultural goods, energy, and services, with specified amounts for each. It then provides sub‐​categories, but it does not publicly break down the purchase amounts by sub‐​category (apparently it does so in a confidential version of the text).

This is not a typical trade deal. A normal trade deal would focus on liberalizing trade in both directions (although modern trade deals have gone beyond that and do a lot of regulating). By contrast, this trade deal is an extreme version of managed trade, with China agreeing to buy designated amounts of U.S. products (supposedly “based on market conditions”).

Beyond the problematic policy goals, it remains to be seen what all of this means in practice. Here are a few questions that arise: How exactly will China quickly ramp up its purchases? What is the role of the government in this shopping spree? What domestic process will the Chinese government use to induce companies to make these purchases? Are there accounting tricks they can rely on (e.g. reclassifying current Hong Kong imports as Chinese imports)? Will these companies shift current purchases of these products away from other countries’ producers and over to U.S. producers (and will those other countries be annoyed)? Can U.S. producers scale up production to meet these targets?

A wide range of products have been mentioned in this context, and how this plays out might vary by product. To help assess this, we thought it might be useful to focus on one product in particular. We are going to use beef as an example (a former Trump administration trade official was recently reported as having confirmed that “there would be purchases of poultry and beef – estimated at US$1.5 billion apiece – in the phase one deal, with American farmers gaining re‐​entry to the market after years of being left out in the cold due to China’s ban on certain hormones and additives used in US farming.”)

So how might U.S. beef exports to China fare as part of China’s promised purchases? Two years ago, we wrote about the possibility of increased U.S. beef exports to China. The removal of Chinese restrictions on U.S. beef — which had been put in place by many countries in 2003 after a BSE scare — was a key component of the 100‐​Day Action Plan reached between the Trump administration and Chinese officials in May 2017. As we explained then, China had become a big consumer of beef, and imports of beef into China were increasing. While many countries saw their beef sales rise, U.S. beef exports to China had been negligible due to the BSE restrictions. Removal of the Chinese restrictions was likely to help.

Unfortunately, the U.S.-China trade war got in the way. As a result of the retaliatory tariffs that China imposed in response to U.S. tariffs, most U.S. beef exports to China faced additional tariffs, beyond the normal Chinese tariffs, of between 10 percent and 35 percent, much higher rates than faced by their competitors in other countries. (Some of those competitors had negotiated free trade agreements with China, giving them an even bigger advantage).

As shown in Table 1, after the 100 Day Action Plan, the United States increased its beef exports to China from a negligible amount to $63 million in 2018. That was a good start. However, that number is only a small fraction of the total growth of imports of beef into China in that period, from $2.6 billion to $4.9 billion. Imports from other major beef‐​exporting countries, including Argentina, Australia, Brazil, New Zealand, and Uruguay, all witnessed a much larger jump than U.S. beef did.

Table 1 Beef Imports in China (in Millions of USD)

For a long time, Chinese consumers preferred other meat products over beef, but as China has grown wealthier, their tastes have changed. As the table shows, their interest in beef has increased considerably. This is a development that U.S. producers should be able to take advantage of, but so far have done so only to a limited extent, whereas their rivals are moving much more quickly. Without a doubt, the Chinese retaliatory tariffs have been a significant factor.

Now with the phase one deal in place, it is likely there will be a tariff waiver on the relevant agricultural products, which will give U.S. producers a better chance to compete. In addition, language in the deal on certain regulatory issues may also help boost beef exports to China. For instance, China promised to remove the age limit for U.S. cattle, which had prohibited sales of meat from cattle over 30 months old at the time of slaughter.

However, U.S. beef sales will still face some hurdles: Their competitors have a big head start and have been developing relationships with Chinese customers for years; some competitors have free trade agreements with China and thus their products are subject to special, low tariffs; and China has had restrictions on sales of hormone‐​treated beef, which is a significant portion of U.S. production. (Under Annex 4 of Chapter 3, it looks like the issue of restrictions on hormone‐​treated beef will be addressed to some extent, which would be a big deal for U.S. producers.)

Market‐​sharing managed trade arrangements are a bad way to approach trade agreements, but even putting that aside, there is still the question of whether they work. It will be interesting to see how the U.S. strategy is effective here. Regardless of how it plays out, a better strategy would have been to push for an agreement like the ones Australia and New Zealand have with China, in order to get China to lower its tariffs further, rather than just restoring them to the pre‐​trade war level.

January 16, 2020 3:44PM

New York Shortchanged but NY Politicians No Help

I reported that state and local governments in New York spend twice as much as governments in Florida. New York also has a larger bureaucracy. Carl Campanile of the New York Post reported on these findings yesterday and captured a retort from the office of New York Governor Andrew Cuomo:

“Sounds like this ginned‐up study from a group of right-wing 19th century robber baron wannabes fail to mention that New York is Washington’s favorite ATM, paying $26.6 billion more in federal taxes than we get back while Florida receives $45.9 billion more than it pays,” said Cuomo senior adviser Rich Azzopardi. “Get a calculator.”

Actually, I am familiar with the “balance of payments” data Azzopardi refers to, and back in the 1990s aided then New York Senator Daniel Patrick Moynihan with such calculations. New York has long paid more to Washington in taxes than it receives back in federal spending on social programs, contracts, grants, and federal wages.

New York’s Rockefeller Institute has done the latest calculations. It found, “New York’s overall balance of payments remains the least favorable of any state in the nation.” Why does New York get such a raw deal? The Institute found, “New York’s consistently negative balance of payments is driven primarily by the disproportionate amount of federal taxes paid, rather than relatively lower federal spending received.”

And why does New York pay a disproportionate amount of federal taxes? Because the federal tax code is highly progressive and New York has a large number of high‐​earners and a high cost of living. The progressive federal tax code has ripped off New York and other wealthy states for decades. The chart below from Rockefeller shows federal taxes paid per capita.

But here’s the thing: New York politicians have done nothing about it! New York politicians should be leading the charge against the unfair soak‐​the‐​rich federal income tax. Instead, most House and Senate members from New York are liberals who cheerlead for progressive taxation, and thus who work in the federal legislature to undermine their own state.

Since New York gets such a raw deal from federal fiscal relations, New York politicians should be the ones trying to revive federalism by shrinking federal spending and transferring activities back to the states. I argue here that such devolution would be good for every state, but it would particularly benefit states such as New York that pay so much in federal taxes.

Finally, note that New York’s balance of payments problem is no excuse for the gross inefficiency of its government compared to that of Florida. Rather than griping about Cato Institute data, Cuomo and Azzopardi should be grabbing their calculators and finding savings in the state’s bloated budget.

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January 16, 2020 12:56PM

The Democrats’ Search for a New Foreign Policy

By A. Trevor Thrall and Jordan Cohen

Cato will be hosting a panel discussion on January 28, The Future of Progressive Foreign Policy: 2020 and Beyond, featuring Kate Kizer from Win Without War, Loren DeJonge Schulman from the Center for a New American Security, Dan Nexon from Georgetown University, Adam Mount from the Federation of American Scientists, and Mena Ayazi from the Alliance for Peacebuilding.

To provide some broad perspective for the discussion, we are sharing a slightly updated version of an article we published in the November/​December issue of the German magazine, Internationale Politik. In it we use speeches and campaign literature from the candidates to discern their foreign policy perspectives. Through our efforts we identified three broad clusters within the Democratic Party that we call traditional liberal internationalist, millennial liberal internationalist, and progressive. The challenge for Democrats, as we discuss below, is to determine which vision is the right one for the post‐​Trump era…

The recent Democratic debate was the first to showcase foreign policy in a meaningful way. The candidates grappled with questions about the role of Commander‐​in‐​Chief, the confrontation with Iran, whether to keep troops in Iraq and Afghanistan, and broader questions of military intervention. Though foreign policy hasn’t played a huge role in the Democratic race so far, international affairs are poised to play a central role this fall. Even without the Ukraine scandal, Trump’s erratic and unpopular record as a statesman provides an opening for Democrats to score points on foreign policy in 2020, but only if they can articulate a new vision that resonates with the American public.

Even before Trump’s election in 2016 foreign policy thinkers were beginning to realize that American grand strategy had to change. After more than fifteen years of war in Afghanistan and the Middle East Americans enthusiasm for foreign adventures had expired, and many observers believed that public support for the traditional American leadership of the liberal international order had expired along with it. The big question was: what would come next?

To most of the Washington foreign policy establishment, Trump’s embrace of “America First” suggested the most terrifying answer possible to this question. Instead of steady American leadership, free trade, a robust system of alliances, and intervention in hot spots around the globe, Trump’s vision relied on unilateralism, protectionism, and withdrawing from America’s endless wars. To say Trump’s election sent shock waves through foreign policy circles in the United States is an understatement.

As Trump nears his fourth year in office, however, it turns out that the public has not embraced his “America First” vision. In fact, Trump has single‐​handedly pushed public support for international engagement and free trade to near record highs. Since Trump took office, the Chicago Council on Global Affairs finds that Americans are seven percentage points more likely to support global engagement, six percentage points more likely to support the Iran deal and Paris Climate Accords, ten percentage points increase for support for NAFTA, and support for alliances with Japan, South Korea, and NATO are at their highest level since polling began. The result is that Democrats have an opportunity to respond not only to Trump but to provide an updated strategy for dealing with 21st century challenges.

The problem is that Democrats have not yet developed a consensus around that new vision, whatever it might be someday. Since the 2016 campaign candidates and foreign policy experts have been waging a slow but steady, behind‐​the‐​scenes battle to define the future of Democratic foreign policy. Though most Democrats can agree on several things like how disastrous Trump’s decision to pull out of the Paris Climate Treaty was, or how poorly Trump has treated America’s allies, or how harmful his cozying up to autocrats has been, Democrats have not yet provided a definite answer to at least six important questions:

  • Should the United States continue to pursue primacy, attempting to control events around the world, or should it accept that the world is becoming more multipolar and seek to do less abroad?
  • Should the United States continue to rely heavily on military intervention, or should it use non‐​military tools of foreign policy to deal with terrorism, civil war, and other issues?
  • Should the United States pursue a foreign policy aimed at spreading liberal values, such as human rights and democracy, or is such an approach contrary to the American national interest?
  • Should the United States embrace multilateralism and enhance alliances and international institutions, or should it pursue a more unilateral foreign policy?
  • Should the United States seek to strengthen and expand the global system of free trade, or instead pursue a nationalist and protectionist trade policy?
  • Should America partner with China and accept a growing Chinese sphere of influence in Asia, or should it attempt to confront, contain, and undermine Chinese power?

To determine where the Democrats stand today we assessed the eighteen most serious candidates’ positions on nineteen different issues. These issues include things like what the United States should do in Afghanistan, Iraq, and Syria, whether the United States should intervene militarily in North Korea, Iran, Venezuela, Ukraine, or Yemen, and how the United States should deal with both China and the war on terror. We also examined candidate positions on how ambitious and active American foreign policy should be, the importance of alliances and international agreements like the Paris Climate Treaty, and support for free trade agreements as well as the trade war with China.

To identify the candidates’ views we reviewed the candidates’ speeches, websites, sound bites in media coverage, their answers to foreign policy questions in the debates, as well as other efforts by organizations like the Washington Post and the Council on Foreign Relations to summarize their views on the issues.

Our general approach for each issue was to ask whether the candidate’s position was roughly in line with current policy and, if not, in what direction it differed. For military issues we asked whether a candidate was taking a more or less hawkish position than the status quo. We asked whether the candidate favored more or less international cooperation on a range of issues. And we assessed whether candidates were more or less supportive of free trade than current policies.

Though this approach simplifies things a good deal, it allows us to make use of the available information, which is relatively scarce for certain issues and several candidates. This scoring system also allowed us to provide each candidate with an easy‐​to‐​understand score for militarism, embrace of international cooperation, and support for free trade. Figure One below summarizes the results of this exercise, illustrating both where candidates stand relative to current American policies and also to one another (warning: these figures were made before several candidates dropped out).

Figure One. 3 Dimensions of Democratic Foreign Policy View

International Cooperation Index

Militarism Index

Free Trade Index

The numbers make it all look very scientific, but it’s important not to push our data too far. After all, most of the candidates have not produced a fully imagined foreign policy doctrine, nor has foreign policy taken center stage at any point so far in the campaign. Some candidates may have remained noncommittal in order to make themselves attractive as a vice presidential running mate. We have undoubtedly missed some important nuances and some candidates may articulate positions different from the ones we have captured here.

The analysis nonetheless helps us identify broad patterns. First, in relation to President Trump, all of the Democrats are less hawkish (though to varying degrees), more inclined toward international cooperation (with very little variation), and only slightly more supportive of free trade. None of these findings are surprising, but they do bolster our confidence that our approach to measuring candidate positions makes sense.

Competing Camps of Democratic Foreign Policy

The second and more interesting pattern emerges from focusing on the issues that divide the Democrats. As Figure One shows, all Democrats embrace the need for international cooperation in a general sense. The two main issues dividing them into competing factions today are 1) how forcefully should the United States attempt to exert global leadership, and 2) what role should the use of military force play in American foreign policy?

As Figure Two reveals, when we array the Democrats across the dimensions of militarism and foreign policy activism, we can identify three camps competing to define next generation Democratic foreign policy.

Figure Two. Democratic Foreign Policy Matrix

Foreign Policy Matrix

The traditional liberal internationalists

The first of these is what we call the traditional liberal internationalist camp and comprises the status quo wing of Democratic foreign policy. This camp includes candidates who score high both on militarism but also on the broader index of foreign policy activism, which we determined by how often a candidate has called for doing more than the status quo on an issue, whether the issue is trade, cooperation, or military focused, and by factoring in any explicit statements they have made about the role of American leadership in the world.

The animating principle of the traditional liberal internationalist camp has not changed much

over time. Its advocates believe that the United States remains the “indispensable nation” and has the responsibility to defend the liberal international order and to intervene around the world – through diplomacy as well as by military force – to resolve international problems like climate change, to promote regional stability, to prevent humanitarian tragedies, and to contain the rise of peer competitors like China.

This camp has long dominated both the Republican and Democratic parties, and its members have included George W. Bush and Barack Obama as well as Hillary Clinton. Former Vice President Joe Biden now carries the flag, ranking at the top of the group on both the militarism and cooperation scales and advocating energetic American leadership abroad. Biden’s fellow travelers in this camp include Senator Amy Klobuchar from Minnesota and Dan Hickenlooper, the former governor of Colorado.

Biden has made it clear that if he is elected, he would abandon the inward‐​looking aspects of Trump’s “America First” foreign policy. On a page from his web site aptly titled “American Leadership,” Biden argued that the United States must take “immediate steps” to “once more place America at the head of the table, leading the world to address the most urgent global challenges.”

And despite the fact that Biden, like all of the other Democrats, has called for ending the “forever wars” in Afghanistan and Iraq, his campaign rhetoric makes it clear that he fully supports the continued pursuit of military primacy, embraces the global war on terrorism, and views the use of military force as an essential foreign policy tool.

The Millennial liberal internationalists

In the middle of the matrix we find the largest group of candidates in a cluster that we call the Millennial liberal internationalists. This group of candidates represents a generational shift between older Democrats who continue to embrace the traditional notion of American exceptionalism and younger Democrats who seem more comfortable with a framework of shared global leadership.

Though the older candidates like Biden, Sanders, and Warren currently lead the pack, these younger candidates clearly sense that the days of traditional foreign policy are numbered. Pete Buttigieg, the 38‐​year old mayor of South Bend, Indiana, is technically the only member of the Millennial generation in the race, but he is also the candidate who has spent the most time articulating what this vision might look like. In a major foreign policy speech earlier this year, Buttigieg noted that “…we face not just another presidential election, but a transition between one era and another….I believe that the next three or four years will determine the next 30 or 40 for our country and the world.”

On a policy level, the Millennial liberal internationalists tend to have less ambitious visions and, perhaps most importantly, they exhibit less enthusiasm for the use of military force than their older colleagues. As Andrew Yang argues, “America is the beneficiary of the international world order we helped establish throughout the twentieth century. That said, we have deluded ourselves into thinking that we are capable of doing things that we are not, sometimes at a terrible cost to ourselves and others. My first principles concerning foreign policy are restraint and judgment — we should be very judicious about projecting force and have clear goals that we know we can accomplish.”

Progressive internationalism

Finally, on the left side of the matrix we can identify the progressive foreign policy camp, championed most energetically by Senators Bernie Sanders and Elizabeth Warren, but also including former Representative Beto O’Rourke, Senator Kristin Gillibrand, and Representative Tulsi Gabbard. Thanks to the success of Bernie Sander’s 2016 campaign and the increasing prominence of progressives in the Democratic Party since the 2018 midterm elections, the progressive foreign policy camp has generated a good deal of momentum of late.

The clearest thread connecting the members of the progressive wing is distaste for the use of military force. The most dovish of this group is Tulsi Gabbard, who argues that the United States needs a new foreign policy that “stops wasting our resources, and lives on regime change wars, and redirects our focus and energy towards peace and prosperity for all people.” In a similar vein, Elizabeth Warren articulated a common progressive critique of American foreign policy when she wrote that “we have allowed the imperial presidency to stretch the Constitution beyond recognition to justify the use of force, with little oversight from Congress. The government has, at times, defended tactics, such as torture, that are antithetical to American values.”

But though the lack of militarism is the most obvious factor that distinguishes this camp from the other two, the most important differences are actually the progressive camp’s idealism and its attempt to link domestic and foreign policy with a unifying thread. The result is that even though there is a good deal of overlap between the policy positions of the progressives and many of the other Democrats, the animating forces of progressive foreign policy and some of its ultimate aims are quite different.

Bernie Sanders and Elizabeth Warren, in particular, have articulated foreign policy visions that embrace vigorous American leadership while placing much heavier emphasis on promoting American ideals. They promise much more active American efforts to defend the liberal international order, for example, as well as the promotion of democracy in the face of rising authoritarian challenges. As one observer said of Sanders’ platform, ““It’s a vision in which international economics would be subordinated to a vision of political relations and human rights that would be as big a departure from Clintonism as Trumpism, just in a different direction.”

And in recognition that Trump’s America First rhetoric has struck a chord on Main Street, both Sanders and Warren have attempted to justify foreign policy activism by connecting it to domestic economic concerns. As Warren has written, “Policymakers promised that open markets would lead to open societies. Instead, efforts to bring capitalism to the global stage unwittingly helped create the conditions for competitors to rise up and lash out.” Sanders concurs, arguing that, “we see a growing worldwide movement toward authoritarianism, oligarchy, and kleptocracy” and that the United States needs to “take into account the outrageous income and wealth inequality that exists globally and in our own country.”

Looking Ahead

This snapshot of the competing Democratic visions raises two important questions. First, assuming one of these Democrats becomes the next president, how far can we trust this analysis to predict his or her future foreign policy choices? Second, which of these will generate the most support from the American public?

Sadly, for foreign policy analysts the predictive power of exercises like this is relatively limited. Rarely do four years pass without events derailing the best laid plans of an administration. George W. Bush, recall, took office in 2001 having argued on the campaign trail that the United States should resist nation building and military intervention abroad.

But even if events did not intrude, there is simply an enormous amount of inertia in American foreign policy, reflected in international institutions and alliances, in domestic politics and public opinion, and in the worldviews of national security professionals. The “Blob” as President Obama called the foreign policy establishment, dominates public foreign policy debates and its members occupy almost all of the important roles in foreign policy making. This has made it difficult for presidents to pursue foreign policies that deviate from traditional liberal internationalism. President Trump has met tremendous backlash whenever he has threatened to chart a more “America First” path, dampening his ability to make big changes. Democrats promoting more radical departures from the status quo like Bernie Sanders, Elizabeth Warren, or Tulsi Gabbard, would very likely face similar difficulties.

The last question is how well these competing visions are playing with the public. Though Biden leads in most of the polls, his foreign policy is the least appealing to most Democrats, and to young Americans more generally. Research has shown that younger Americans remain committed to cooperative forms of international engagement, but are far less supportive of defense spending and the use of military force than older Americans. In a recent poll, for example, just 44 percent of Millennials felt that maintaining superior military power should be a critical U.S. foreign policy goal, compared to 64 percent of Baby Boomers and 70 percent of the Silent Generation.

The shift from militarism is easily understood. Younger Americans have spent their formative years and early adulthood watching – and fighting in – lengthy, unsuccessful military interventions in Iraq, Afghanistan and elsewhere. Unlike their grandparents, they did not experience the heady aftermath of World War II when the United States enjoyed incredible economic and political dominance. Coming of age after the end of the Cold War, neither Millennials nor members of Generation Z have a real awareness of the role military strength played in the successful containment strategy of the Cold War. If they were aware, they’d have also noticed that the United States rarely used military force after the Vietnam debacle and still won the Cold War in 1991. Simply put, to young Americans, war has looked like a poor strategy. As a result, they do not share their elders’ confidence in America’s ability to use military force to pursue national interests effectively.

This intergenerational shift favors both the Millennial liberal internationalists like Pete Buttigieg and the progressive internationalists like Sanders and Warren, at least to a point. A red flag for progressives, however, is the way both Sanders and Warren have recast foreign policy as an extension of domestic debates over economic and social policy. To win middle‐​class votes, both Sanders and Warren have decried unfair trade deals, kleptocracy, global inequality and the influence of multinational corporations.

Though these are important issues, they are also potential justifications for fruitless and expensive efforts to reshape the world. And just as American military power has failed – dramatically and at staggering cost — to reshape the Middle East over the past 18 years, so too would American economic and diplomatic power fail to reorganize the world to the tastes of the progressives in the Democratic Party.

In short, the danger is that in their search for a motivating principle for the future of U.S. foreign policy, Democrats may propose big ideas that sound nice but will instead promote more misguided U.S. activism under a new heading. Instead, the Democrats’ best bet to win public support, especially from the next generation, is to identify what current U.S. responsibilities — from the ongoing forever wars in at least eight countries to longstanding treaty commitments to militarily defend more than 60 nations abroad – should be abandoned and which must be maintained for the 21st Century.

A special thanks to Sally Huang for compiling and coding the data and to Lauren Sander for creating the graphics.

January 16, 2020 12:20PM

USMCA Races Across the Finish Line, but Uncertainty Remains

The U.S.-Mexico-Canada Agreement (USMCA) passed the Senate by a vote of 89 – 10 today. Last week, it was unclear whether or not the vote could take place before the president’s impeachment trial due to the fact that seven Senate committees were tasked with reviewing the deal first. The process by which the deal is reviewed is referred to as a “mock markup” where the bill is discussed and voted on, but no amendments can be made. It was largely expected that the committees would quickly advance the implementing bill so that the USMCA could be brought to the Senate floor as soon as possible. But this rush to vote on USMCA was misguided. Not only has Congress failed to debate the merits of a deal with our closest trading partners, the entire process by which USMCA came to a vote raises serious questions about how U.S. trade policy will be handled in the future.

The implementing bill for USMCA is over 200 pages long, and the text of the agreement itself includes 34 chapters, 13 annexes, and 16 side letters. While much has been retained from the original North American Free Trade Agreement (NAFTA), which this supersedes, and also from the Trans‐​Pacific Partnership (TPP) that the United States did not ratify, there are still a number of important changes that were made only about a month ago that warrant additional scrutiny. My colleague and I identified three major issues, which, taken by themselves, should be sufficient cause for an extended discussion of the deal — new auto rules of origin, labor reforms that were negotiated by House Democrats and seen for the first time last month, and the sunset clause.

On the issue of autos, it is still largely unclear how the more stringent rules will be applied when the agreement comes into force, leaving plenty of uncertainty for the integrated North American automotive supply chain. In fact, Maria Curi from Inside U.S. Trade recently reported that Mexico’s chief USMCA negotiator, Jesús Seade stated that how the rules will apply and be enforced still has to be sorted out, and that this process could take months. The major lingering question on the automotive provisions, which will in large part depend on how the rules are implemented, is whether this will raise the cost of production for autos in North America, shift supply chains, and hurt North American competitiveness in this sector. At the moment, we do not know. Meanwhile, other groups continue to lobby for protection they could not achieve through USMCA, with Amb. Lighthizer agreeing to review potential trade remedies for “certain unfair, non‐​market trade practices” of seasonal produce from Mexico. The passage of USMCA certainly does not guarantee an end to trade friction with our trading partners.

Labor reforms that Mexico agreed to at the eleventh hour are also of general concern for the potential it creates for a new litigation bonanza on the part of U.S. labor groups and industries seeking protection. These changes were outlined in a Protocol of Amendment, which was issued by the Office of the United States Trade Representative on December 10, 2019 after the conclusion of negotiations between Amb. Lighthizer and House Democrats. It is generally unclear what impact these new requirements will have on Mexico, which has independently undertaken labor reforms under the leadership of their current President Andrés Manuel López Obrador, who made such reforms part of his campaign. Asking Mexico for additional guarantees through a trade agreement is not only unnecessary, but also could further diminish trust between Mexico and its northern neighbors.

The third issue that should have been subject to far more scrutiny from Congress than it was afforded is the so‐​called sunset clause, which are a set of provisions that allow the agreement to automatically expire after 16 years unless the parties agree to extend it. The first sunset review would take place at 6 years after ratification, and the parties would have 10 years to decide the question of whether to extend or terminate. Simon Lester and I have described this as the new NAFTA’s “ticking time bomb” because it bakes in uncertainty to the USMCA in perpetuity. Furthermore, the most troubling aspect of the sunset clause is that it leaves the decision of whether to continue the agreement entirely in the hands of the executive branch. This is a major concern regardless of who is president, because it makes the decision of the agreement’s extension even more vulnerable to the political whims of that office. House Democrats had an opportunity to ask for clarification on the role of Congress in terminating USMCA, but completely failed to do so. But perhaps one should not be surprised, given how readily Congress has been willing to cede its constitutional authority to regulate commerce to the president. As with President Trump’s tariffs against steel and aluminum from our trading partners, Congress has been unwilling to take concrete steps, and so far, bipartisan efforts to rein in the president, such as from Sens. Pat Toomey (R‑PA) and Rob Portman (D‑OH), have been put on the back burner by Sen. Chuck Grassley (R‑IA), chair of the Senate Finance Committee.

In addition to the uncertainty regarding the substance of the deal, the way the final provisions were negotiated, and the process by which the USMCA has come up for a vote raises broader questions about the future of U.S. trade policy. While the USMCA was signed by the three countries in November 2018, it was not until a draft of the Statement of Administrative Action (which outlines the various changes to U.S. law for the agreement to take effect) was released in May 2019 that an effort to evaluate the deal by Congress really began. In June 2019, House Speaker Nancy Pelosi (D‑CA) established a working group of nine House Democrats to negotiate changes to USMCA, and that process was completed in December, which led to the Protocol of Amendments to the deal. With such a select group involved in the negotiations, however, one would have imagined that the final terms would be discussed with the broader House membership well before a vote would be held. That’s not what happened. Instead, House Democrats rushed to vote on the agreement before winter recess, and approved USMCA by a vote of 385 – 41, sending the bill to the Senate.

The lack of debate on USMCA has also raised questions about the future of Trade Promotion Authority, also known as “fast‐​track” — the process by which trade agreements can move through Congress expeditiously, facing only an up and down vote. TPA establishes certain guidelines for how the executive consults with Congress, as well as the order and timing of various steps in the process. However, the process by which USMCA has advanced through Congress does not appear to meet TPA requirements, and as Halie Craig argues, this means USMCA should not be eligible for an up or down vote in the Senate. Sen. Toomey also raised concerns today regarding the vote on USMCA’s compliance with TPA, noting the fact that the USMCA includes an emergency designation for increasing spending, a break from past practice. With TPA so openly ignored by both USTR and Congress, the entire process may be called into question in the future. If anything, the current process has simply increased the leverage of the executive over trade policy and weakened congressional oversight.

This all bodes poorly for the future of U.S. trade policy. The Senate’s affirmative vote of USMCA may have just solidified a new normal. In rushing to pass this protectionist love‐​child, Congress has further strengthened the executive in its ability to set trade policy, and left a great deal of uncertainty in its wake. Our future negotiating partners are surely taking note.