FBI Sets Eyes on Black Freedom of Speech

Matthew Feeney

The FBI has identified a new threat: the “Black Identity
Extremist” (BIE), whose perceptions of police brutality are
very likely to serve as justification for violence toward police
officers, according to a counterterrorism document recently obtained by
Foreign Policymagazine

The murder of police officers is clearly wrong and tragic, but
in creating this new category of extremist, the FBI risks stifling
innocent Americans’ First Amendment-protected activity.

To its credit, the FBI narrowly defines BIEs as those who seek
to use force or violence to create “a separate black homeland
or autonomous black social institutions, communities, or governing
organizations within the United States.” The FBI further
notes that activism and the use of strong and even violent
rhetoric, “may not constitute extremism, and may be
constitutionally protected.”

The murder of police
officers is clearly wrong and tragic, but in creating a new
category of extremist, the FBI risks stifling innocent Americans’
First Amendment-protected activity.

At first glance, this should offer some reassurance to Black
Lives Matter activists and protesters from similar organizations.
After all, Black Lives Matter isn’t advocating a black
ethno-state, let alone urging members to harm police officers. Yet,
given the FBI’s history with black activists, it’s
understandable that some people might be wary of engaging in
protests knowing that the FBI has a designation for black identity
extremists.

The FBI’s COINTELPRO surveillance program, begun in 1956,
targeted black civil rights leaders, among many others. The FBI
went so far as to send Martin Luther King Jr. a letter urging him
to commit suicide. The Senate’s Church Committee, which in
1976 published a report on intelligence activities and the rights
of Americans, found that the FBI’s “Black
Nationalist” program included organizations that
weren’t advocating independence at all; they were just
primarily black.

The FBI eventually acknowledged some of its mistakes, but
mistakes can be made more than once. While the FBI’s
counterterrorism document on BIE focuses on violent nationalists,
we should be prepared for the FBI to put black organizations under
increased surveillance. We should also be prepared for the FBI to
establish tenuous links between BIE violence and unrelated crimes.
As Foreign Policy noted, former FBI special agent Michael German
found that the agency connected radical “black
separatists” from the 1970s with attacks in 2010, despite
their being no clear connection.

And it’s not just black activists and civil rights leaders
who need to be wary of increased FBI scrutiny; the bureau’s
long history includes all kinds of specialized snooping based on
race and political views. Shortly after a string of letter bombings
inspired by an Italian anarchist in 1919, J. Edgar Hoover, then the
head of the “Anti-Radical” division, organized a
massive index card database that eventually contributed to hundreds
of deportations and thousands of arrests. In 1920, Assistant
Secretary of Labor Louis Freeland Post canceled more than 1,000 of
1,600 remaining deportation orders after finding little solid
evidence that those rounded up in raids posed any threat.

Innocent people having their rights violated is a risk when the
government casts a wide net, but even if the FBI’s activities
related to BIEs remain narrow, news of the designation and the
FBI’s interest in BIE could prompt a stifling effect on speech.

Research on Internet activity unsurprisingly suggests that
innocent Americans chilled their own online curiosity in the wake
of Edward Snowden’s revelations. If you know that the FBI is
keeping an eye out for BIEs, how likely will you be to attend a
Black Lives Matter protest, even if you have no intention to commit
a crime? And although the FBI’s counterintelligence document
notes that “mere advocacy” of a particular view
“may not constitute extremism, and may be constitutionally
protected,” the use of the word “may” leaves the
FBI with plenty of leeway.

Some protesters may take comfort in the fact that the historian
and King biographer David Garrow views the FBI as too incompetent
to be a threat, telling Foreign Policy that the FBI, “are
often so clueless.” Nonetheless, when it comes to federal
government law enforcement and surveillance, it’s safe to err
on the side of concern.

The murders of police officers in Dallas, Baton Rouge and New
York City were awful and unforgivable. Whatever one thinks about
the police-involved killings of black men such as Walter Scott,
Samuel Dubose, Eric Garner, Philando Castile, and many others,
violence against police officers won’t help implement reforms
that will increase police accountability and transparency.

Yet in responding to this violence the law enforcement community
should resist designations that could be abused, leading to the
surveillance of innocent Americans participating in activities
protected by the First Amendment. It has happened before, and it
can happen again.

Matthew
Feeney
is a policy analyst at the Cato Institute.

The GOP’s Tax Dilemma

Ryan Bourne

Opponents of the Republican tax-reform framework are adept at
intellectual contortion.

On the one hand, they bemoan that the proposed changes will
widen the budget deficit. On the other, they denounce that
eliminating some deductions will make certain households worse
off.

Since net tax cuts, and hence higher initial deficits, are the
only way to make everyone financially better off, one might think
that some progressives would oppose any tax-reform agenda.

Yet behind the slippery critiques lies an important
consideration for lawmakers: How much increased borrowing should be
tolerated as part of a tax-reform plan?

Tax reform without tax
cuts is political suicide; tax cuts without tax reform is a huge
missed opportunity.

Several commentators, and even some Republican tax-cut
proponents, distinguish “tax cuts” from “tax reform,” defining the
latter as revenue-neutral changes to the tax code. Freedom Caucus
leader Mark Meadows (R., N.C.), for example, has reportedly said
that “revenue neutral” reform “doesn’t do anything to the economy”
because it is “just moving money around.”

This is not a view economists would share. Lowering marginal
rates, even if fully financed by eliminating deductions and
exemptions, can raise the efficiency of the economy. Lowering
marginal rates improves work incentives, while base-broadening
efforts remove distortions to economic decision-making. For a given
level of revenue, this package acts as a supply-side boost to the
economy. The expected result is faster growth until the economy
reaches a permanently higher level of GDP.

Yet as we have already seen with the furor over limiting the
mortgage-interest and state-and-local-income-tax deductions,
revenue-neutral tax reform could fall victim to political
opposition. Financial losers (those who lose generous deductions
and exemptions) tend to be more vocal and motivated than winners
(those who obtain the higher standard deduction and lower rates).
With revenue-neutral reform, there would be a lot of losers if
rates were lowered substantially. In order to avoid or mute some
opposition, accepting higher borrowing would allow greater rate
cuts, easing the financial impact for those losing out from
eliminating deductions.

Allowing higher borrowing can therefore be useful in helping
grease the wheels of economically beneficial tax reform. In fact,
the positive effects of rate cuts on incentives can be so powerful
in some circumstances that they reducedeficits over the
long term thanks to higher growth. This could well be the case with
a significant corporate rate cut. Canada and Britain have cut their
rates substantially without revenues falling as a share of GDP.

The Republican tax framework may not be a complete overhaul of
the tax code, but it does attempt to make the code more
economically coherent. The message Republicans should be selling is
that their tax changes will improve the growth prospects of the
economy, in turn raising productivity and living standards.

Yet the debate thus far has focused on who will be most affected
financially by the immediate changes. Republicans are getting
increasingly defensive about the “pay-fors,” with some members
questioning the wisdom of fully eliminating certain exemptions and
others insisting that everyone must get a net tax cut, which would
require huge borrowing increases.

This is dangerous territory. Republicans in the Senate have
purportedly already agreed to a budget that would allow additional
borrowing of up to $1.5 trillion over ten years for tax cuts. If
they back away from the base-broadening proposals, though, such as
the abolishing of the state-and-local-income-tax deduction, less of
this allotted revenue can be used to lower marginal rates, muffling
the economic benefits of the reform.

But let’s suppose there were no constraints in the Senate. Would
huge tax cuts without any base-broadening measures be wise?

Some Republicans seem to believe that tax cuts are good for the
economy because they will boost demand by leaving more money in
people’s pockets. Yet with the economy approaching full employment
and the Federal Reserve unlikely to accommodate further boosts to
demand, there is little evidence that deficit-financed tax cuts
will provide any short-term demand boost at all.

Cutting marginal rates would of course still boost the supply
side of the economy by sharpening incentives, and we would expect
this to improve the economy’s growth prospects. But without
reductions in government spending (the true burden of government on
the market sector), taxes would then need to be higher in future,
negating this pro-growth effect. Sadly, there is little evidence
that cutting taxes to “starve the beast” has been a particularly
effective strategy.

Tax cuts resulting in initial higher deficits are therefore
worth it only if they grease the wheels for growth-boosting tax
reform or come with guarantees for future spending cuts. Tax reform
without a degree of tax cuts would be politically suicidal. Cutting
tax rates without reforming the code or cutting spending would be a
huge missed opportunity.

Ryan Bourne
holds the R. Evan Scharf Chair for the Public Understanding of
Economics at the Cato Institute.

We Need More Than Half-Measures to Right-Size Regulation

Thaya Brook Knight

A decade after the start of the 2007-2008 financial crisis, and
seven years after the passage of the Dodd-Frank Act, it seems both
the legislative and executive branches may be making small steps
toward financial regulatory reform. Earlier this month, the
Treasury Department released the
second in a series of reports on the U.S. financial sector, this
one focused on the capital
markets
. And last week, the House Financial Services Committee
passed a suite of
bills aimed at reforming
many areas
 of financial regulation. 

While passing legislation out of committee is only the first of
many steps toward enactment, it is encouraging that several of the
House bills passed with either unanimous or bi-partisan support.
Although the House notably passed the Financial Choice Act earlier
this year, a bill that would serve effectively as a
repeal-and-replace template for Dodd-Frank, that bill passed on a
strict party-line vote,
with only Republicans voting in favor. Therefore, the fact that
many of the most recent bills had some support from Democrats may
bode well. Of course, any action will require Senate approval as
well. There has not yet been a Senate answer to the House version
of the Choice Act, although there is still time in the year.

 

But even though this recent regulatory reform activity is a step
in the right direction, much more needs to be done. And in terms of
the reforms envisioned in the Treasury report and the recent suite
of House bills, they’re a mixed bag. To be sure, some
proposed reform follow recommendations that many of us have been
pushing for a while now. For example, the Treasury report
recommends that all companies considering an initial public
offering (IPO) be permitted to file confidentially and “test
the waters,” that is, sound out potential investment interest
before pulling the trigger on a costly IPO. Right now, only
companies below a certain size are permitted to do this. There has
been widespread concern about how few IPOs have taken place in
recent years, and how few public companies now exist. Given the
fact that investment in privately-held companies is tightly
restricted, if companies eschew the public capital markets, average
investors lose out. This change is one that may entice more
companies to go public, with little risk to either investors or the
markets.

But other changes would be half-measures, better than the status
quo but still short of the mark. For example, both the Treasury
report and one of the House bills address the restrictions on
investment in private companies. Under current securities laws,
investment in private offerings is effectively limited to
institutions and wealthy individuals, defined as those who either
earn at least $200,000 per year or have at least $1 million in
assets excluding their primary residences. Both the Treasury report
and the House bill would expand the definition, including
individuals who can show financial sophistication through licensure
or other means.

Expanding the definition is certainly a start. As it stands,
existing regulation has absurd results. For example, an investment
advisor who advises wealthy clients can recommend investments she
herself cannot make since current law deems her insufficiently
sophisticated if she is not also wealthy. Expanding the definition
to remedy this would at least make the results less ridiculous. But
this change doesn’t go far enough. Why should there be any
restriction on how a person can spend money he has actually in
hand? After all, anyone can spend money on all kinds of silly
purchases, thankfully, without government interference. But if a
person would prefer to make an investment with that money, current
regulation is patently paternalistic: If the person is not wealthy,
he, for the most part, cannot use that money to invest in private
companies.

 

Another half-measure concerns a bill that would repeal the
controversial Department of Labor rule governing broker advice for the sale
of retirement investments. This rule, which would require those
providing advice while selling certain investments to adhere to the
very stringent “fiduciary duty” standard, has been
criticized on two grounds. First, that the Department exceeded its authority, shoe-horning the
rule into its limited jurisdiction over employer-sponsored
retirement accounts. Second, that the rule itself
would result not in better advice for
moderate-income Americans, but no advice as
brokers are likely to abandon low-value accounts due to the
increase in compliance costs the rule would impose.

Repealing the rule is a good place to start. However, the bill
passed by the House committee would only remove the rule from the
Department of Labor’s (DOL) jurisdiction. While the
legislation does not expressly impose a fiduciary standard, as the
DOL’s rule does, it still uses language suggesting a
heightened duty of care. Brokers are, in reality, salespeople who
give recommendations incidental to that role. There may be some
argument for requiring that such brokers disclose the fact that
they may be paid based on a commission structure, to ensure that
investors are not confused about their role. But any rule must
ensure that the compliance costs of a higher duty of care do not
outweigh the benefits, or place inappropriate requirements on those
in a sales role. Otherwise the result is likely to be reduced
access to information for the people who need it most. In fact,
some initial reports show that this has already begun
to happen in some firms under the current DOL rule. 

The efforts by Treasury and the House Financial Services
Committee are welcome. It is encouraging that some of the House
bills passed with considerable support from both political parties.
Given the breathtaking scope of Dodd-Frank’s changes, and the
harmful effects it has had on the economy, any change is welcome.
But there is still much, much more that can and should be done.

Thaya Brook
Knight
is associate director of financial regulation studies at
the Cato Institute.

Restricting Trade after Factory Explosion Would Hurt Bangladeshi Women

Chelsea Follett

A tragic boiler explosion killed 10 Bangladeshi garment workers over
the summer, an incident reminiscent of the catastrophic 2013 Rana
Plaza building collapse, which focused public attention on working
conditions in that developing country. In the wake of such
disasters, many people in rich countries assume the compassionate
response is to impose trade restrictions and stop buying clothes
made in Bangladesh.

Ironically, such a response would actually harm Bangladeshi
garment workers, most of whom are women, by forcing them into far
worse situations than factory work.

What many people do not know is that the rise of factory work in
the country has helped bring about significant positive change in
many Bangladeshi lives-particularly for women. The country is home
to 18.4 million of the world’s poorest people and
has strict gender norms. Yet Bangladesh was recently called “the happiest economic story in the world right
now,” as extreme poverty has plummeted.

Despite its dangers, factory work has slashed extreme poverty and increasedwomen’s educational attainment while lowering rates of child marriage in Bangladesh. It has
also sparked cultural change towards more freedom for women, not
only by enabling them to earn money but by granting them freedom of
movement.

The country’s women-dominated garment industry transformed the
norm of purdah, or seclusion (literally, “veil”), that
traditionally prevented women from working beyond the home, walking
outside unaccompanied by a male guardian, or even speaking in the
presence of unrelated men.

Many Bangladeshi women now interpret purdah to simply
mean modesty instead of social and economic segregation. In the
words of social economist Naila Kabeer of the London School of
Economics, factory work let women “renegotiate the boundaries of
acceptable behavior.” Today, in Dhaka and other industrial cities,
women walk outside and interact with unrelated men.

The country industrialized rapidly, growing its number of
export-oriented factories from a handful in the mid-1970s to around
700 by 1985. Women now hold more than 80% of manufacturing
jobs.

The expansion of manufacturing in the country met with
challenges early on. In 1985, Britain, France, and the United
States imposed quota limitations on imports from Bangladesh in
response to anti-sweatshop campaigns financed by labor unions in the rich countries. Within
three months, two thirds of Bangladeshi factories shuttered their
gates and over 100,000 women were thrown out of work, many to
face destitution.

The quotas were, in short, a disaster for Bangladeshi women.
Britain and France removed their quotas in 1986, and Bangladesh’s
garment industry has since expanded to thousands of factories
employing millions. Unfortunately, protectionist sentiment is
growing in rich countries, aided by sensationalized accounts of
working conditions. The Bangladeshi General Secretary of National
Garment Workers has warned that these could restrict Bangladesh’s
growth.

Britain and France
removed their quotas in 1986, and Bangladesh’s garment industry has
since expanded to thousands of factories employing
millions.

Despite their frequent depiction as passive victims, Bangladeshi
factory women are making their own choices. Kabeer’s research found
that “the decision to take up factory work was largely initiated by
the women themselves, often in the face of considerable resistance
from other family members.”

Yet societal change is definitely underway. “Garments have been
very good for women,” a factory woman named Hanufa, whose earnings
allowed her to escape her physically abusive husband, told Kabeer.
“Now I feel I have rights, I can survive.”

In fact, the earning power of women is eroding the custom of
bridal dowries, and earning power typically increases the weight a
woman’s priorities carry within the household.

Tragedies like the Rana Plaza building collapse garner a lot of
press. The garment industry’s wider-reaching effects on the
material well being and social equality of women in Bangladesh
receive less attention. Rich countries should not rush to impose
trade restrictions on poor countries after disasters. As one
factory worker put it: “The garments have saved so many lives.”

When Kabeer interviewed 60 factory women in her native Bangladesh,
she found that the factories had expanded women’s options and were
viewed positively overall. More and more experts share that
assessment. The World Bank has acknowledged that factories play “a significant role”
in reducing poverty and combating child marriage. The Financial
Express’ Monira Munni stated earlier this year that factories have “socially
empowered women workers in Bangladesh to have better control over
their own lives.”

According to Kabeer, “it took market forces, and the advent of
an export-oriented garment industry, to achieve what a decade of
government and non-government efforts had failed to do: to create a
female labor force.”

Chelsea Follett is managing editor of HumanProgress.org, a project of the Cato Institute.

Surveillance “Reform”: the Fourth Amendment’s Long, Slow, Goodbye

Patrick G. Eddington

Over 16 years after the 9/11 attacks and the subsequent repeated
passage or renewal of draconian “temporary” but
“emergency” domestic surveillance laws in response,
it’s fair to ask: Have we officially abandoned the Fourth
Amendment in the Bill of Rights?

With the expiration of Section 702 of the FISA Amendments Act
(FAA) less than three months away, now is a good time to review the
effects of these surveillance laws in the seemingly endless
“War on Terror.” But first, a quick recap of
America’s embrace of mass surveillance in the post-9/11
era.

Within six weeks of the terrorist attacks in 2001, and with
virtually no serious debate, Congress passed the behemoth PATRIOT Act. The law created vast new
government surveillance powers that abandoned the Fourth
Amendment’s across-the-board probable cause warrant
requirement. In an October 11, 2001 speech discussing the Senate
version of the legislation, Sen. Diane Feinstein (D-Calif.) assured
terrified civil libertarians that the PATRIOT Act’s five-year
“sunset” clause governing 15 of the bill’s
provisions would serve “as a valuable check on the potential
abuse of the new powers granted in the bill.”

Unless the privacy and
civil liberties community revamps its entire approach and structure
for advocacy on these issues, the long, slow goodbye to the Fourth
Amendment will come to an end just before Christmas in
2019.

Unbeknownst to the public and most members of Congress, the Bush
administration allowed key authorities of the PATRIOT Act to be
abused, a fact only brought to light in 2013 by Edward
Snowden’s revelations of mass telephone surveillance
conducted under Section 215 of the PATRIOT Act.

Section 215 is one of the 15 “temporary” provisions
that has been renewed repeatedly since 2001, making a mockery
of Feinstein’s assurance that the “sunset”
provision would act as a “check” on any abuse of the
law. Today, 12 of those 15 “temporary” and
“emergency” surveillance measures are permanent
law.

Thanks to another document made public by Snowden, we know that
three days after the 9/11 attacks, then-NSA Director Michael Hayden
initiated a secret warrantless surveillance program
encompassing Americans in contact with anyone in Afghanistan. Over
the ensuing weeks, it would become a multi-pronged warrantless
spying effort code-named STELLAR WIND. After the New York
Times
revealed this unconstitutional surveillance in
December 2005, thanks to the help of a whistleblower at the
Justice Department, the Congress and the Bush administration spent
the next two years trying to make the illegal surveillance legal.
Their final product, passed in 2008, was the FAA—renewed with
little debate in 2012 and now, because of a “sunset”
provision, is set to expire on December 31.

The key provision of the FAA that is the primary focus of debate
is Section 702, which allows the government to target the
communications of foreign entities even if the government knows it
will likely sweep up the emails, text messages, and phone calls of
innocent Americans in the process.

Have FAA’s authorities been used to subvert the Fourth
Amendment and the constitutional rights of Americans, just as the
PATRIOT Act has? Yes. Repeatedly.

In September, the politically progressive group Demand Progress
issued a scathing reporton documented abuses of the FAA, drawing
directly from partially declassified Foreign Intelligence
Surveillance Court (FISC) records. The findings showed that aspects
of the government’s Section 702 information collection,
revealed in 2011, acquired “non-targeted, entirely domestic
communications,” violating the Fourth Amendment. Indeed, the
FISC found that the NSA engaged for 12 years in types of
surveillance that FISC would eventually deem unlawful, with NSA
only ceasing the violations under repeated—but ultimately
empty—threats of criminal sanctions.

This report was preceded earlier this year by the publication of
Stanford law professor (and Just Security editor) Jennifer
Granick’s excellent book American Spies, which chronicles in
detail the rights violations and false claims of effectiveness of
the PATRIOT Act and the FAA by NSA and FBI officials.

Sixteen years after creating the biggest unconstitutional mass
surveillance dragnet in American history, we have documentary
evidence—from the federal government’s own
records—of repeated, systemic abuses of these authorities. We
also know they’re costing taxpayers, whose digital
communications are swept up by these programs, tens of millions of
dollars annually. What we don’t have is any public evidence
that these surveillance practices have made us safer.

What’s the response of Congress? It’s proposing to
reauthorize the same Section 702 program, which has led to these
abuses.

On Oct. 6, on a bipartisan basis, the House Judiciary Committee
introduced the ill-named USA Liberty Act (HR 3989). In my initial analysis of the bill, I noted that the proposed
legislation ignored every major problem highlighted in the Demand
Progress report. The bill’s authors also ignored an even
longer list of Section 702 reform proposals put forward by nearly 60 civil
society groups.

Meanwhile, the Director of National Intelligence Dan Coats, NSA
Director Adm. Mike Rogers, and FBI Director Christopher Wray have
mounted a public campaign to renew Section 702 unchanged. At a
meeting with reporters on Sept. 25, Coats and
his colleagues argued that 702 is a vital surveillance authority
that has helped thwart numerous terrorist plots. On background, I
asked one of the reporters who attended that meeting whether Coats,
Rogers, or Wray offered a single example of 702 stopping an attack
on the United States. They did not—which tracks with
Granick’s findings in American Spies.

Despite the lack of public, independently confirmed evidence
that 702 has prevented terrorist attacks on America, Coats, Rogers,
and Wray are winning the argument that 702 should remain the law of
the land.

If you think about it, the indifference of the House Judiciary
Committee leadership to these proposals is not terribly surprising.
The overwhelming majority of the groups calling for changes to a
surveillance law that should never have existed have no political
power.

Unlike the National Rifle Association, they operate no political
action committee or similar electoral vehicle that could be used to
strike fear into House or Senate members who dare to put forward
such proposals. Thus, House and Senate members know that they can
safely ignore these groups, no matter how many press releases,
Facebook posts, or completely fact-based reports about surveillance
abuses they churn out-just as they have ignored these same groups
for nearly 20 years as Congress has passed or reauthorized laws
that, bit by bit, have eviscerated the Fourth Amendment.

My prediction: Absent another Snowden-like revelation, Section
702 of the FAA will be reauthorized largely without change, and any
changes will be cosmetic, and almost certainly abused. Whether it
has a “sunset” provision or not is now politically and
practically meaningless.

After this latest assault on the Bill of Rights has been signed
into law by President Donald Trump later this year or early next,
opponents will have one more—and probably final—chance
to roll back the damage already done when the three remaining
PATRIOT Act provisions subject to “sunset” come due at
the end of 2019. Unless the privacy and civil liberties community
revamps its entire approach and structure for advocacy on these
issues, the long, slow goodbye to the Fourth Amendment will come to
an end just before Christmas in 2019.

Patrick
Eddington
is a Policy Analyst in Homeland Security and Civil
Liberties at the Cato Institute.

The Danger of Linking the Rohingya Crisis to Terrorism

Sahar Khan

On August 25, the Arakan Rohingya
Salvation Army
(ARSA) – formally known as the Harakah al-Yaqin

coordinated an attack
on a Burmese army base and 30 police
posts in the state of Rakhine, killing more than 71 people,
including 12 security officers. Calling the ARSA
“extremist Bengali terrorists,”
the Myanmar army’s response was
swift and brutal, and within two weeks,
123,000
Rohingyas fled their homes. Dubbing their response as

clearance operations
, the army
burned
villages and even planted
landmines
as a way to further target the fleeing Rohingyas. But
the army’s response is grossly disproportional. The ARSA is a small
group with
no links to transnational terrorist groups
(yet)
and has a very narrow mission:
stop persecution of Rohingyas Muslims. Because of the actions of
this minor group, there are currently half a million refugees in
Bangladesh seeking security, protection, and food in
makeshift camps
, where they are exposed to the elements and
increasingly vulnerable to disease.

While the United Nations declared the persecution and recent
flight of the Rohingyas
“a textbook example of ethnic cleansing,”
the region has a

long history
of
discriminating
against them. The clash between Buddhists and
Bengali-speaking Muslims in the in Myanmar’s Rakhine province can
be traced back to the 1980s when the Burmese regime abruptly

stripped them of citizenship
. While the Rohingyas, who are
predominantly Sunni Muslims, claim to be
indigenous to the area, the government of Myanmar has always viewed
them as illegal immigrants from neighboring Bangladesh. The
government further maintains that it will
reinstate their citizenship rights
if they drop the term
“Rohingya” and instead register as “Bengalis.” This condition is
unacceptable to the Rohingyas, who are
protective of this label
as it has become a part of their
identity, and the means why which they can garner international
attention.

The perils of portraying
the Rohingya crisis through securitized lens are quickly becoming
apparent.

Myanmar’s refusal to acknowledge Rohingyas as an ethnic minority
entitled to citizenship rights is not just semantics. It is related
its territory and sovereignty. According to the state’s
1982 citizenship law
, if the government accepts the Rohingyas
as a legitimate Burmese ethnicity, they will have autonomy in
Rakhine, where they are the majority. Myanmar, a predominantly
Buddhist country, fears three potential developments: 1) an
alliance
between
the Rohingyas and Bengalis, both of whom are Muslim, 2)
calls for secession that may follow an alliance, and 3) the

ARSA entrenchment
in Rakhine. To be fair, Myanmar’s fears may
be overstated but they are not misplaced. As a weak postcolonial
state, it is suffering from a myriad of issues, such as
civil-military imbalances
, corruption,
poverty, and
food
insecurity
. But persecuting the Rohingyas is a short-sighted
strategy that threatens Myanmar’s credibility – and, by igniting
dangerous religious and ethnic fissures, the security of the
region.

The
genocide-like
persecution of the Rohingyas continues to put
Bangladesh in a strenuous geostrategic position. While Bangladesh
has
welcomed
the refugees, it is also a poor country with

limited resources
. And similar to Myanmar, it also has a
checkered past with the Rohingyas. Earlier this year, Bangladesh
wanted to hold talks with Myanmar to accelerate the process of
resettlement, where one official said, “We want to
see them leave Bangladesh quickly.”
Currently Bangladesh’s
government is working to relocate the new refugees to an
“unlivable island”
to decrease some of the pressure that the
influx has caused. On
closer examination
of Bangladesh’s domestic politics, the
Hasina administration’s reaction to the refugees is a balancing act
between criticizing Myanmar, pacifying Bengali right-wing
Islamists, satisfying Bangladesh’s army, and appeasing India, who
has also
persecuted the Rohingyas in the name of national security.

The ongoing crisis, however, highlights two important
developments that will negatively impact the fate of the Rohingyas.
First, the ARSA, currently an outlier, will be linked to the larger
Rohingya community, increasing its prominence, and potentially
emboldening it. While the ARSA has links to
both Saudi Arabia and Pakistan
, there is
no evidence
that the group has links to al Qaeda and the
Islamic State (ISIS) or that it has been incorporated into larger
transnational Islamist extremist networks. It is a small group
whose
main grievance
– persecution of Rohingya Muslims – can be
solved relatively easily by ending widespread discrimination. While
meeting ARSA’s demands of citizenship and political equality will
expose Myanmar’s poor governance, especially in the Rakhine
province, it will likely eliminate the main root of violence in the
area. But if the situation continues as is, ARSA might grow and

develop real links
to real terrorist groups, a claim already
being made by
Myanmar
,
India
, and
Bangladesh
. Second, and more troubling, the Rohingyas are set
to become a regional political tool that will continue to be used
to justify a series of predatory and illiberal counterterrorism
strategies as seen, again, in
Myanmar
,
Bangladesh
, and
India
.

As yet another boat full of refugees – mainly children –
capsizes and
survivors share stories of
sexual violence
, the current state of Rohingya suffering seems
to have entered a new, more horrific chapter.
Worldwide protests
may pressure the current government in
Myanmar to end the violence and accept the Rohingyas back, but it
will not end the practice of linking a persecuted community to
terrorism.

Sahar Khan is a visiting fellow at the Cato Institute.

If Anyone Is in Need of a Nudge, It’s the Politicians

Ryan Bourne

Imagine a school canteen. There’s a full array of food on sale,
from healthy salads through to chocolate fudge brownies. But the
canteen deliberately puts the salads in the children’s eye-line at
the front of the counter. Economists describe such a choice as a
“nudge”. Behavioural evidence suggests food placed here is more
likely to be purchased. The canteen is encouraging healthy eating
with this information, but without coercion. The children are,
after all, still free to buy chocolate fudge brownies, should they
wish.

Richard Thaler, this week’s Nobel Economics Prize winner, has
made a career observing how humans deviate from perfect rationality
and how applying “nudges” can alter economic decision-making. He
has presented compelling evidence that humans tend to be biased
towards the status quo, value things more when we already own them
and are influenced by the framing of decisions.

Nudgers aim to alter our “choice architecture” to influence
decisions but without restricting our freedom to choose. The UK
Government has a whole unit working on this. The new policy of
auto-enrolment in company pensions, requiring an active opt-out, is
a “nudge” attempting to help people meet their stated desire for
more saving towards retirement. Participation in workplace pensions
has increased by 37 percentage points since it was introduced.
Provided they are based on good evidence, do not use heavy-handed
bans or change the payoffs to choices, Thaler advocates such nudges
as a form of “libertarian paternalism” – guidance in
­decision-making, which does not restrain individual free will.

But the concept is controversial among economists. Just because
some individuals are not rational does not mean regulators and
politicians have better information on their circumstances or
preferences. Some now auto-enrolled in pension schemes, for
example, would need and prefer more cash today, but the same bias
towards inertia prevents them from opting out.

Nudgers aim to alter our
“choice architecture” to influence decisions but without
restricting our freedom to choose.

In many markets regular feedback, repeat decisions and
competition allow people to fulfil their preferences whilst
overcoming individual-level biases. Regulators and politicians have
their own motivations, too, and can be prone to groupthink and
capture by vested interests. The lines between nudging and shoving
are quite often blurry. Auto-enrolment might be a nudge for the
employee, but it seems one hell of a shove to obliged employers
threatened with fines for non-compliance.

The main issue with behavioural economics, though, is that we
appear to be applying its insights to the wrong target group. The
book Nudge has a whole chapter explaining the conditions under
which they are likely to be effective: when the consequences of
choices are delayed, choices are difficult, the choice is made
infrequently, and when it is difficult to predict how the choice
might affect our lives. These seem to apply most aptly to decisions
politicians and regulators make all the time on our behalf.

Yes, individuals have their biases. But politicians do too. They
put the status quo on a pedestal, suffer groupthink, seek to bribe
the electorate, have a bias for budget deficits, continuously
complicate the tax system and grow the size and scope of
government. Absent a constitution that constrains them, why not
change the “choice architecture” they face?

We could, for example, make mandatory five-year sunset clauses
the default on new regulations to try to curb the growth of the
regulatory state. Politicians would have to rubber-stamp the
continuation of each regulation, enabling them to assess and
reflect on their effectiveness. The same concept could be applied
to all repatriated EU law.

To stop taxation by stealth, we could pass a law so that all tax
thresholds rise automatically each year in line with the growth
rate of nominal GDP. If politicians want to raise taxes by playing
with income thresholds or through fiscal drag, they would have to
do so explicitly and transparently, facing the political heat.

The opportunities to apply this thinking are endless. To deter
cronyism, large political donations could be anonymised through a
central clearing house, leaving complete freedom to donate to a
party but dampening the incentive for politicians to appease
specific donor interests. An option for politicians’ salaries to be
tied to economic growth as default could be added to their
contracts too, with the freedom for them to “opt out” and maintain
current arrangements should they wish to signal their lack of faith
in their own policies.

On the spending side, zero-based budgeting should be the norm in
any comprehensive spending review. Any new policy that raises net
spending above a threshold amount should trigger an OBR analysis on
how much it will add to national debt over the coming 30 years,
which must be read out by the relevant minister in Parliament.

“Tax trigger laws” could be passed too, meaning when revenue is
much stronger than expected, the default would be to cut tax rates
so revenues are simply maintained to meet government spending. This
would deter the perceived “windfall” effects the Treasury can
obtain from growth before budgets, often used to bribe the
electorate, and would highlight the trade-off between spending and
taxes.

Despite Thaler’s interesting work, history suggests bad
government policy can be far more damaging to our welfare than
individuals’ biases. So why not apply the insights of Nudge where
it is most needed, and frame politicians’ choices to encourage the
salad diet for government?

Ryan Bourne holds the R Evan Scharf Chair for the Public Understanding of Economics at the Cato Institute.

The Real Danger of Refusing to Certify the Iran Deal

John Glaser

President Trump’s decision not to certify the Iran nuclear deal
is reckless and dangerous. By all accounts-including that of the
International Atomic Energy Agency (IAEA), America’s European
allies, the U.S. intelligence community and Trump’s national security team-Iran has complied with
the restrictive terms of the Joint Comprehensive Plan of Action
(JCPOA) and significantly rolled back its nuclear program, while
subjecting itself to the most intrusive inspections regime in the
world.

Undermining a successful nonproliferation agreement in this way
isolates America, sows doubt about its credibility and
trustworthiness, signals to other rogue regimes, like North Korea,
the imperative of a nuclear deterrent, and worst of all, needlessly
puts the United States and Iran back on the road to confrontation.

Indeed, this is why Trump’s advisors convinced him to
technically keep the JCPOA, while calling on Congress to impose
nonnuclear sanctions and to amend the legislation that requires the
president to put him imprimatur on the deal every ninety days. It
is a way of keeping the deal but giving Trump symbolic ways of
broadcasting his distaste for it. This is essentially an exercise
in placating a petulant, fact-resistant commander in chief.

The ominous thing about Trump’s decision not to certify is that
it is entirely unconnected to any kind of discernible strategic
calculus.

To begin with, undermining the deal leaves America with less
leverage than it had when it negotiated the JCPOA in the first
place, because the international community is no longer on
America’s side. This means there is essentially zero chance of
achieving a better deal that is more punitive than the current one
and that yields greater concessions from the Iranian side.

Scuttling the nuclear
deal leaves America with less leverage than it had when it
negotiated the JCPOA in the first place.

Furthermore, the White House has signaled that while the president is not
certifying the deal, the administration is going to encourage
Republicans in Congress not to reimpose nuclear-related sanctions.
This makes decertification explicitly noninstrumental. It is not
supposed to achieve anything of any strategic value at all. It’s
merely a vehicle for the president to voice his irrational
hostility for the deal itself and for his predecessor’s legacy.

It gets worse. Many critics of the deal believe Iran is
implacably determined to obtain nuclear weapons at some point.
Whether the context is the JCPOA or something else, it is taken
essentially as a matter of faith that Iran wants the bomb; the only
question is how to delay it or coercively prevent it.

This presumption is wrong. It seems rather clear that Tehran has
decided that the benefits of making concessions in exchange for
greater economic engagement and diplomatic relations with the world
far outweigh the costs of doggedly pursuing a nuclear deterrent.
The latter path carries the benefit of ensuring regime survival,
but would also condemn Iran to perpetual isolation, rogue-state
status and a harsh global-economic sanctions regime. Iran does not
want to end up like North Korea, impoverished and without any
allies.

This calculus is certainly one explanation for why Iran agreed
to the JCPOA and why they have complied with it. The problem is
that Trump’s subversion of the deal is likely to have an immediate
and counterproductive impact on Iran’s cost-benefit analysis
because it undercuts the benefits Iran gets from pursuing peaceful
international engagement, while making the costs of obtaining a
nuclear deterrent seem tolerable by comparison.

If Iran’s reward for compliance with the JCPOA is American
duplicity, why should Tehran put any stock in negotiations? If
belligerent U.S. leaders demonstrate a strong preference for
hostility and confrontation, as opposed to reciprocal compromise
and probity, what incentive does Iran have to keep its nuclear
program under invasive inspections?

With the United States isolated and the rest of the world intent
on enforcing the JCPOA, Iran still has reason to keep to the deal.
However, the Trump administration’s approach is undoubtedly tipping
the scales in the opposite direction.

This isn’t complicated. One doesn’t need a deep knowledge of
esoteric international-relations theory at some high level of
abstraction to understand why Trump’s new approach is, if anything,
likely to backfire. A sixth grader should be able to figure this
out, which only reinforces the idea that Trump isn’t even
pretending to think strategically about this.

John Glaser is director of foreign-policy studies at the Cato Institute.

Abandoning the Iran Deal Is Just One Example of Irrational U.S. Diplomacy

Ted Galen Carpenter

All signs indicate that President Trump will rescind
Washington’s adherence to the nuclear agreement reached
between the leading international powers and Iran in 2015. That
agreement, the Joint Comprehensive Plan of Action (JCPOA), placed
significant restrictions on Tehran’s nuclear program—at
the very least greatly slowing any quest for a nuclear-weapons
capability. Nevertheless, hawks in the United States have
excoriated the deal from the very beginning, arguing that Iran was
merely buying time and lulling a gullible Obama administration and
other governments into complacency while continuing to covertly
develop its nuclear capabilities. During the 2016
presidential-election campaign, Trump himself repeatedly blasted
the JCPOA as the “worst deal ever negotiated.” Other
opponents equated the agreement with Neville Chamberlain’s
appeasement of Nazi Germany at Munich in 1938.

The hostility to the JCPOA is merely the latest manifestation of
an unhealthylack of prudence and realism in U.S.
foreign policy on so many issues. Washington’s approach is
characterized too often by impossible objectives, boorish,
ham-handed diplomacy, and an unwillingness to make even the most
imperative concessions to achieve success.

The reality is that the JCPOA was probably the best deal that the United States and the
other signatories could hope to get from any Iranian government.
Indeed, it is surprising that Tehran was willing to accept even
those restrictions. And despite allegations from opponents that
Iran is violating the terms of the deal, the International Atomic
Energy Agency continues to certify that Tehran is in compliance.
Until now, even the Trump administration has had to concede,
however grudgingly, that Iran has abided by the JCPOA’s
requirements. Admittedly, the president did grouse that the
Iranians were violating “the spirit” of the agreement,
whatever that meant.

Pressing for a so-called
“better” nuclear deal reflects the lack of realism that has plagued
overall U.S. foreign policy in recent decades.

JCPOA supporters warn that trashing the accord will create
horrid dilemmas for the United States. The likelihood is that
Tehran would resume its full nuclear development program. U.S.
leaders might then face the choice of accepting Iran as a
nuclear-weapons power within a few years or launching a preemptive
war to thwart that outcome.

Most JCPOA critics deny that they are pushing for a war against
Iran—although there are exceptions, including Sen. Tom
Cotton. Less brazen types insist that they simply want “a
better deal”—one that would impose far more rigorous
restraints on Iran. Even if such individuals are sincere—and
there are substantial reasons to doubt their
sincerity—pressing for a so-called better deal reflects the
lack of realism that has plagued overall U.S. foreign policy in
recent decades.

The only reason that negotiators were able to conclude the JCPOA
with Tehran was because they backed off from some of their original
demands. Hardliners (especially in the United States) wanted Iran
to have no nuclear capabilities whatever—not even the
technology appropriate for developing peaceful nuclear energy. The
usual flock of hawks also wanted any agreement to include a virtual
ban on ballistic-missile development and a commitment from Tehran
to abandon its support of Hezbollah and other “terrorist
movements.” Indeed, critics still insist on those points. Had
negotiators demanded such concessions, however, there never would
have been a JCPOA.

Unfortunately, the lack of prudent realism that hawkish types
continue to exhibit regarding policy toward Iran is not confined to
that issue. Too often, U.S. officials and much of the
foreign-policy community act as though the only legitimate
diplomacy consists of making a laundry list of maximalist demands
to a foreign government—usually without offering any
meaningful concessions in return. That scenario has played out in
recent years regarding policy toward both North Korea and
Russia.

Since the mid-1990s, Washington has insisted that Pyongyang
abandon its entire nuclear program. Given the U.S. track record of forcible regime change against
nonnuclear adversaries like Serbia, Iraq and Libya, Pyongyang was
not inclined to rely on vacuous assurances that the United States
would refrain from trying to achieve the same outcome in North
Korea. Moreover, Washington’s proposed substantive
concessions to Pyongyang consisted of little more than vague
promises of a partial lifting of the economic sanctions that had
been imposed. There never has been a clear willingness to address
the North Korean regime’s other goals—including a peace
treaty formally ending the Korean War, U.S. diplomatic recognition
of the regime, and the end to Washington’s annual
joint-military exercises with South Korea.

Insisting on Pyongyang’s return to nuclear virginity,
especially without offering major concessions, was not very
realistic even before North Korea conducted multiple nuclear and
ballistic-missile tests. Once developments reached that point and
it was clear that the country already had built a number of nuclear
weapons, U.S. policy became totally unmoored from reality. Yet
there is little indication that the Trump administration has
softened Washington’s negotiating strategy. Instead, the U.S.
position has hardened and become worrisomely belligerent.

Both the Obama and Trump administrations have pursued a similar
futile, uncompromising stance toward Russia. The recent sanctions legislation that Congress
overwhelmingly passed and that the president signed into law
epitomizes that rigid, unproductive attitude. Among other
provisions, the measure cited Moscow’s alleged interference in
America’s 2016 election as a justification for imposing tighter
sanctions. But the legislation offers no hint of how Russia could
atone for that offense and get the sanctions lifted. Would a
written pledge never to engage in such conduct in future elections
be sufficient? Would something additional be necessary? There is no
way to tell.

In addition, the sanctions law codifies the previous White House
demands during the Obama and Trump administrations that the Kremlin
cease supporting separatist rebels in eastern Ukraine and return
the Crimea Peninsula to Kiev’s control. Russia’s compliance with
the former demand is unlikely, especially given the Russian
government’s well-founded fears that the United States intends to
turn Ukraine into a Western client state with membership in both
the European Union and NATO. Brazen Western meddling in Ukraine’s political affairs to help
demonstrators unseat the democratically elected, pro-Russian
president in 2014 certainly does not incline Moscow to soften its
policy toward its neighbor.

Demanding that Moscow relinquish control of Crimea is even more
of a diplomatic nonstarter. The Kremlin will abandon that
acquisition at about the same time that Israel rescinds its
annexation of Syria’s Golan Heights or Turkey repudiates its puppet
Turkish Republic of Northern Cyprus and returns that occupied
territory to the Republic of Cyprus. That is to say, a Russian
capitulation on the Crimea issue likely will never take place.

Such examples underscore that Washington’s overall
diplomacy is dangerously unrealistic on multiple fronts. More
restrained and modest strategies are badly needed. A good place to
start is to refrain from torpedoing the constructive and beneficial
JCPOA. There is no “better agreement” in the offing, and the
consequences of pursuing such a mirage could be very
unpleasant—not only for the Middle East, but the United
States as well.

Ted Galen
Carpenter
, a senior fellow at the Cato Institute and a
contributing editor at the National Interest, is the author of ten
books, the contributing editor of ten books, and the author of more
than 650 articles on international affairs.

The Legal Resistance to President Trump

Josh Blackman

Hillary Clinton was destined to shatter the glass ceiling and
pack the Supreme Court with liberal lions. The Left dreamed of the
day when federalism, the right to bear arms, and religious liberty
would be exiled from the Constitution, replaced by the progressive
jurisprudence they not-so-patiently waited for. Instead, on
November 8, 2016, Donald Trump shattered those dreams. The Left
awoke from this unfathomable nightmare to a painful hangover: The
45th president would shift the Supreme Court, and the entire
federal judiciary, to the right. Rather than advancing our
constitutional law closer to Justice Sotomayor’s wing of the Court,
the new judges would entrench Justice Scalia’s jurisprudence.

Refusing to accept the outcome of the election, progressive
legal groups rallied around a hashtag that soon became a movement:
#Resist. The New York Times reported that advocacy
organizations “put aside institutional rivalries” to make “legal
resistance one of the defining attributes of the Trump era.” There
is nothing novel about sore-loser litigiousness. Republicans
resorted to this strategy over the last eight years. What is
remarkable, however, is the breadth and speed of the successes of
the anti-Trump lawyers in impeding a presidency. Their movement was
advanced by Obama-administration holdovers within the executive
branch, and even by federal judges, who abandoned their traditional
role out of a fear that Donald Trump posed an existential threat to
the republic.

The self-professed resistance must be understood for what it is:
a thinly veiled legal revolt. Our Constitution has built-in safety
valves to remove an unfit president, whether through impeachment or
through a declaration of incapacity. But the exercise of those
powers was not assigned to the judiciary. Judges can call balls and
strikes; they can’t throw the president out of the game.
Fortunately, the Supreme Court has remained a voice of reason
within the federal judiciary — a role that it must maintain
even as President Trump continues to disrupt legal norms. This
administration will come to an end sooner or later. But the
precedents set during this period will linger far, far longer.

The thinly veiled legal
revolt against President Trump playing out in the courts will set
lasting and dangerous precedents.

The first conflict came very early. Trump’s January 27 executive
order, which restricted entry into the United States, sent
shockwaves throughout our legal order. For 90 days, the admission
of certain aliens from Iraq, Iran, Libya, Somalia, Sudan, Syria,
and Yemen — whose admission was deemed “detrimental” to
American interests — were to be kept out. Almost immediately,
lawyers filed suit on behalf of travelers from these nations who
were being detained at airports, yet the policy would receive no
meaningful defense in court.

Because Democrats had delayed the confirmation of Senator Jeff
Sessions as attorney general, the agency was still headed by Sally
Yates, a holdover from the Obama administration, when Trump signed
the executive order. Finding that the order was not “wise or just,”
she instructed the Justice Department to stand down. Rather than
resigning — the honorable choice if she believed the policy
to be unconstitutional — she simply stood by as federal
courts ruled against the government. President Trump had no choice
but to fire Yates, who willingly served herself up as the first
martyr of the legal resistance.

Then the resistance spread. The Washington Post
reported that lawyers within the Justice Department and other
federal agencies sought to “push back against the new president’s
initiatives” as part of a “resistance from within.” Concerns about
the so-called Deep State have been greatly exaggerated, but lawyers
in the civil service are all too willing to talk to the press about
their efforts to resist the president’s agenda. The public effects
of such internal insubordination are hard to calculate because they
are largely unseen.

Soon, the Washington State attorney general sought a temporary
restraining order to halt the travel ban nationwide — a
challenge that was planned well before the order had even been
signed. With Yates now out of the picture, administration lawyers
mounted a good-faith defense of the policy, though one that was not
victorious in court. After only an hour of oral argument, U.S.
district judge James L. Robart in Seattle ruled that the federal
government must immediately cease enforcing the executive
order.

Robart’s seven-page order offered only the most threadbare
analysis, giving no indication whether he thought the policy
violated the due-process clause, the equal-protection clause, the
establishment clause, or the free-exercise clause. Solely on the
basis of this hasty and incomplete opinion, immigration officials
around the country and consular officials around the globe were now
enjoined from implementing the order. Less than a week later, a
panel of the Ninth Circuit Court of Appeals affirmed the district
court’s order — even though temporary restraining orders are
not subject to appeal. The court nonetheless reached out to resolve
difficult constitutional questions in this preliminary phase of the
litigation.

This judicial blitz was a dry run of the legal resistance’s game
plan. It would be repeated again and again with respect to the
second iteration of the travel ban, sanctuary-city policies, and
efforts to unwind the Obama administration’s regulatory agenda.
First, President Trump takes an executive action. Second, litigants
file suit in multiple friendly forums. Third, the court disregards
prudential barriers that restrict suits against the executive
— a role exactly opposite to the one that the judiciary
usually plays. Fourth, looking beyond the four corners of the
policy, the court throws out the policy by psychoanalyzing the
commander-in-chief based on his tweets, cable-news interviews, and
even campaign statements. Finally, without affording the president
the traditional deference his office is due, the court issues a
nationwide injunction, stretching far beyond the judges’
jurisdiction.

By March, with several victories under its belt, the legal
resistance had been fortified. National Public Radio anointed David
Cole, the legal director of the American Civil Liberties Union, as
“the man at the heart of the legal resistance to the Trump agenda.”
Harvard Law professor Laurence Tribe was confirmed as the “Citizen
Attorney General” of a progressive group calling itself the “Shadow
Cabinet.” CNN enthused that the “legal resistance … already has
octopus-like tentacles with different groups seeking to unravel or
block” President Trump’s agenda.

But over the summer, their winning streak would come to an end.
On three separate occasions, the Ninth Circuit Court of Appeals
ruled against the Trump administration concerning the travel ban.
And on all three occasions, the Supreme Court — without
recorded dissent — pushed back on the San Francisco-based
court. While the decisions were not unqualified victories for the
president, the justices consistently voted to restore the scope of
Trump’s executive power to deny entry to aliens he deemed
detrimental to American interests.

Justices Thomas, Alito, and Gorsuch would have allowed the
travel ban to go into effect in its entirety while the appeals
process played out. They explained that the “government has made a
strong showing that it is likely to succeed” on its claim that the
order was lawful, and that a decision against the government would
“interfer[e] with its compelling need to provide for the Nation’s
security.” This opinion, according to Jack Goldsmith of Harvard Law
School, served to “turn down the temperature, and to interject a
better model of behavior into our corroded institutions and
discourteous civil discourse.” The lower courts, alas, have not yet
taken the hint. As it stands now, the justices are considering
whether to dismiss the appeals in light of the president’s
September 24, 2017 proclamation, which imposed a quasi-permanent
travel ban for aliens from seven nations.

The legal resistance often repeats the refrain that our polity
must resist “normalizing” Trump as president. Courts,
unfortunately, have followed the lead. When judges treat this
president as anything other than normal — such as when they
engage in law-office psychiatry — it sends a signal to the
public that the chief executive is not as legitimate as his
predecessors. Trump was elected through the same constitutional
process by which judges received their lifetime commissions. He
should be treated as such. It is true that Trump consistently
disrupts all political norms. The courts should not respond in kind
by disrupting judicial norms.

In Federalist No. 78, Alexander Hamilton wrote that
judges can exercise “neither FORCE nor WILL but merely judgment.”
Judge William H. Pryor Jr. of the Eleventh Circuit Court of Appeals
observed that “Hamilton’s point was that we must depend on the
persuasiveness of our written opinions to command the respect of
our fellow citizens.” As a result, he wrote, judges have “the
foremost responsibility of safeguarding [their own]
independence.”

The nationwide injunctions against President Trump are grounded
far more in “will” than in “judgment.” They reflect a sincere
concern that the 45th president poses an unprecedented risk and
that his acts warrant far more scrutiny than did those of his
predecessors. This approach, though well intentioned, is profoundly
flawed. In a recent speech, Justice Gorsuch offered some important
words of wisdom for the rest of the judiciary: “Judges should wear
robes,” he explained, “not capes.” Only the political process, and
not what was designed to be the least dangerous branch, can save us
from the consequences of our own decisions.

Josh
Blackman
is a constitutional-law professor at the South Texas
College of Law in Houston, an adjunct scholar at the Cato
Institute, and the author of Unraveled: Obamacare, Religious Liberty, and
Executive Power
.