Idle Correspondence

Phoenix, 4/23/20

Dear Goldwater Institute Attorneys:

You need to pick your battles, of course.

I expect most of the requests with which you have been inundated are seeking a naïve “personal freedom” attack on state action which, viewed constitutionally and assuming power is exercised within an appropriate statutory framework and without violating the separation of powers, would fall squarely in the heart of the traditional police powers of the sovereign. Such an attack should fail. A better approach would be to focus on the stay-at-home order as lying beyond the scope of authority granted to DHS and the governor under Ch. 6, Art. 9 of A.R.S. Title 36, A.R.S. §§ 36-781 through 790.  Authority to “isolate and quarantine persons” is plainly distinguishable from purported authority to impose restrictions (which amount to neither isolation nor quarantine) on the populace as a whole – especially since a decree of the latter type is irreconcilable with the [due process] requirements of A.R.S. § 36-789.

The best posture would be that of defending someone against whom a governmental authority is seeking to enforce the stay-at-home order, but I think the governor and co. are fighting shy of undertaking any such effort. Fortunately, a declaratory judgment action against the governor should work, too. I’m sure you wouldn’t have any problem finding a plaintiff or two. Victory in one such action is all that would be needed, and I expect it would substantially boost the Institute’s standing with a certain segment of the public.

(The governor would have been on firmer ground trying to get the county health departments to impose “sanitary measures” under A.R.S. § 36-624.)

If you get any requests from landlords whom the governor’s decree has deprived of the enjoyment of their property – has robbed, in other words, of the pursuit of happiness – would it be possible for you to give them my contact information?

Regards,

Brian K. Stanley

Post Scriptum, 4/29/20: In my opinion, the lawsuit I have suggested would be a "slam dunk," though perhaps not 'till pushed to the level of our intermediate appellate court. To the best of my knowledge neither the Goldwater Institute nor any of the other intrepid freedom fighters with whom Arizona is so richly endowed has initiated such an effort. My guess is it's because they're not sure the boost with a certain segment of the public would outweigh the obloquy if their triumph resulted in an obvious surge of COVID-19 cases.

What They Oughta Say

Bernie’s “Plurality Must Win” spiel is eliciting some pretty lame responses from the other Democratic presidential candidates. Heard most often is, “Everybody ought to play by the rules.”  But Sanders isn’t saying that “Candidate with plurality of elected delegates get the nomination” should be an official rule, exactly. He’s saying that for other candidates to bow out in favor of the plurality-winner would be the democratic thing to do.

One not-quite-as-lame counterargument, which so far I’ve heard only from Biden,  is to point out that by this standard 2016 Bernie should have deferred to Hillary long before he did.

But a stronger approach would question the “democratic thing to do” premise itself – something like this:

“Wait a minute.  This isn’t a personal beauty contest. It’s a discussion about the ideas, policies and positions that are now the best for shaping this country’s future.  Let’s suppose as the convention approaches there are two remaining  candidates who want to eliminate all existing private health insurance and three who would strengthen and improve the ACA instead.  And let’s suppose the Medicare-for-all candidates have 30% and 10% of the delegates respectively.  And suppose the strengthen-ACA candidates are 20-20-20.  Does that mean that Medicare-for-all, despite losing 40 to 60, is the democratic choice?”

Renaissance of Free Trade?

Note: This is essentially the comment I posted elsewhere on February 5. Within a week the Trump Administration had rebuffed Britain's trade-agreement overtures, basically telling the UK it would have to go to the end of the line and await the US' conclusion of trade deals with China, the EU and others. So much for the Brexiteers' promise that a trade agreement with the US would be made quickly once the UK's formal withdrawal from the EU had taken place.

In a speech given in the "Painted Hall" of the Old Royal Naval College at Greenwich on February 3, recently appointed British P.M. Boris Johnson proclaimed himself the apostle of free trade. Present through the magic of (almost-) live streaming, I noted some passages which called for comment.

"And since [free-trade theories] were born here in this country, it has been free trade that has done more than any other single economic idea to raise billions out of poverty and incredibly fast. ...

"And yet my friends, I am here to warn you today that this beneficial magic is fading.

"Free trade is being choked and that is no fault of the people, that’s no fault of individual consumers, I am afraid it is the politicians who are failing to lead.

"The mercantilists are everywhere, the protectionists are gaining ground from Brussels to China to Washington. Tariffs are being waved around like cudgels even in debates on foreign policy, where frankly they have no place."

Careful, Boris. Donald Trump doesn't take kindly to criticism of any kind.

"We will not accept any diminution in food, hygiene or animal welfare standards [that the UK applies to all imports]." The Prime Minister apparently has not yet recognized that this is exactly what the Trump Administration will demand before it will make a trade deal with Britain. Has he never heard of "chlorinated chicken," or does he just prefer his poultry that way?

Johnson referred to climate change and the need to reduce CO₂ emissions as "the great environmental issue of our time, perhaps the greatest issue facing humanity." But the Trump Administration has banned even the use of the term "climate change" by federal employees at all levels, and Trump denounces any link between CO2 levels and climatic conditions as a "hoax", perpetrated specifically to impoverish the U.S.

This speech would get Boris tossed out of Trump's Republican Party anywhere in America (if Trump and his minions had the power to expel anyone from the party). It will be fascinating to see how Johnson and Trump get along as the months pass.

My prediction: As 2021 approaches and it becomes clear that the EU will stick by its rules and Brexit (effective, not just nominal) without any deal agreed between Britain and the EU looms, Boris' government will truckle under 100% and accept whatever deal Trump deigns to offer.  It will be far from the simple mutual adoption of free trade Johnson seems to dream about.

The Profitable Martyrdom of Qassim Soleimani

January 4, 2020, 7:45 a.m. Arabian Standard Time

Whatever else might be said about the character of the recently deceased head of the Kuds Force element of the Iranian Revolutionary Guards Corps, it cannot be doubted that he was willing to give his life in the service of what is known in his country as the Islamic Revolution.  To the extent that movement is identified with the policy of the present regime in Teheran, the consequences of his assassination could well be more than adequate reward for what his co-religionists have dubbed martyrdom.

If hard-line elements within the Shiite majority of the Iraqi parliament are able, in the wake of this provocative American act, to compel the Iraqi government to demand the withdrawal of U.S. forces from that country, there will be jubilation in the councils of Supreme Leader Khameni.  Iraq is all that lies between Iran and Saudi Arabia, and an Iraq stripped of Western occupiers and under a Shiite government which is free to express sympathy with Teheran is the Saudi regime’s worst nightmare – and would be even in the absence of powerful Iraqi Shiite paramilitaries more or less openly aligned with Teheran.

That nightmare is all the more troubling to the Saudis in light of the Trump Administration’s underwhelming reactions to various 2019 Iranian maritime provocations in the Gulf and to last September’s attack on the Abqaiq and Khurais oil processing facilities.  Even with more American forces trickling into Iraq, there have recently been signs that Saudi Arabia is seeking détente with Teheran.  Should Western forces be removed from Iraq, Iran would likely be able to secure effective safe passage for its forces through Iraq, and its army of half a million men could seize the Saudi north, where the Shiites and the oil are, within a week.  Even if there is some secret American commitment to defend the Saudi kingdom, Prince Bin Salman is probably too shrewd to place much reliance on it.

In that event, the only question would be to what extent, and at what price, Iran is willing to reach an accommodation with the Saudis.  The result would be a sea-change in power relationships all across the Middle East, a change greatly in Iran’s favor.  Governments and factions by the dozen, resigned to seeing off the Americans, would be seeking accommodation with Iran while assiduously courting Russia.  In fact Turkey’s Erdogan, never one to let grass grow under his feet, is already taking advantage of America’s distraction to move more forces into northern Syria, elbowing in closer to the small U.S. force there, which Trump said he would remove and then didn’t (possibly the most tempting target for Iranian revenge – via surrogates, of course).

It is hard to see what opposition could now plausibly be made to the demand, even before the Soleimani assassination being pressed by the more militant Shiite parties, that the Iraqi government require the U.S. to withdraw its forces.   In our surprise attack on the Baghdad airport we blew up prominent Iraqis along with Soleimani, after all.  Even disregarding the Iraqi fatalities, the government of Iraq would forfeit any claim to sovereignty or independence if it failed to express resentment of this assassination carried out on its soil by foreign armed forces.  The government of Iraq is no government if it will not defend its right to decide who in Iraq is deserving of death.

The Kurds have largely withdrawn into their northern enclave, politically as well as physically, and have recently been given a good lesson about trusting Trump’s America.  The Sunni Arab minority will rightly fear the removal of the only serious counterweight to Iranian influence, but Trump’s action, murdering Shiite Arabs along with the Persian general in flagrant disregard of Iraq’s sovereignty, has deprived it of any argument other than its own fear.  The pro-Iranians will plausibly suggest that, with ISIS gone (according to Trump, anyway), the Americans in Iraq  are the greatest stimulus to sectarian strife there, and Iran and Sistani can afford, and might even mean, the most extravagant promises of intra-Islamic toleration.  By now Sunni leaders must have given up the dream that America will restore their position of dominance, and will surely see how the wind is blowing.

As an intermediate step toward demanding withdrawal of U.S. forces, the parliament might enact an immediate renunciation of the aspects of our status-of-forces agreement that afford extraterritoriality to U.S. service members, followed by the institution of criminal prosecutions against some of them.  This would leave the U.S. no politically viable alternative but to initiate hostilities against Iraq (another occasion of joy in Teheran) or withdraw its forces even without being asked.

The story that our action was defensive because Soleimani was planning attacks on our forces will not even be repeated, except in mockery, by anybody but spokesmen for the Trump Administration.  Soleimani and many others have been laying anti-American plans for decades, of course.  The usual way to thwart hostile plans is not to kill the planners, however.  For one thing, killing a planner neither stops the planning nor erases a finished plan.  And it could facilitate the execution of such plans as are made – as undoubtedly it will do in this instance (if the new opportunities created by the American attack have not rendered all prior plans obsolete).

At present there is less semblance of a national government in Iraq that is distinguishable from the Baghdad parliament than there has been at any time since the American occupation government called that assembly into being.  The Iraqi political ramifications of the killing of Soleimani will be played out there unless they are played out on the streets of the capital, as present indications are they might well be.  Either way, the only question is whether the result will be the elimination, or merely a serious curtailment, of American military presence in that country.

Russia will see the predictable Iraqi reaction as presenting an opportunity to reduce American influence in the region, which the Putin regime sees as an end in itself.  Increasing Russia’s oil revenue will be an objective, but a fresh opportunity to fish in troubled waters will be more inviting in Russian eyes.  Even today Lavrov was in Baghdad acting the sympathetic arms dealer.

China is the power that has been most assiduously courted by Iran, and it will be watching developments in Baghdad closely.  Once the Iraqi government lodges a diplomatic protest with Washington, China will join other countries in labeling the Baghdad airport attack a violation of international law and calling for an independent U.N. investigation of the Soleimani assassination.  Whether China will go further is another question.  Unless escalating strikes and counter-strikes lead to hostilities of strategic significance, China will likely be content quietly and patiently to take advantage of declining American influence in the region.

Further Theses, or, Kim’s Moment of Maximum Leverage

A little over 2 years ago, I posted my Theses on the Korean Problem,* concluding:

The President’s [then-, and before at least two later escalations of the trade war, recently tweeted] suggestion that China would get a better trade deal by taking unspecified measures against the Pyongyang regime will be given no warmer reception as a “tweet” than it was given over the luncheon table at Mar al Lago.

From the domestic U.S. perspective, it should be noted that by his own terms, Trump is offering to allow China to continue “raping” the U.S. and stealing the jobs of American workers if China will help us out with our North Korean problem.  This is what he calls “making America great again.”  What is to be feared is that Trump will take out his frustration with China in some rash action against North Korea.  Hit them with a few Tomahawks, and they will hit back.

We have no way of knowing whether Trump has persisted in his attempt to link U.S.-China trade peace to Chinese support against the Pyongyang regime, or at what stage he might renew that effort.  Whether it produces any concrete improvement in our Central American refugee crisis or not, the superficial success of his recent Mexican gambit can only serve to increase the chances Trump will, contrary to the (potentially frantic) urgings of his trade negotiators, try linking a deal with China to some anti-Kim commitment from Beijing.  If Trump does this and is insistent about it, it would certainly mean that no trade deal happens.  Whether a moment of maximum leverage is approaching for Xi, and if so what moment that might be, are subjects for a separate posting, however.

As for the Korean situation, Trump’s personal diplomacy and his bruited warm friendship with Little Rocket Man have taken the Tomahawk Chop “off the table,” at least until Trump is willing to renounce his friendship with Kim.  Not even Fox News would be able to spin that development as anything other than an admission that Trump’s huge charisma and magical deal-making powers somehow failed to work on the Korean problem.  Actually, no significant new anti-Pyongyang measure could be taken by the Administration without making the same admission (tacitly, of course – frank admissions never come from this White House).

Kim has already demonstrated his ability to take advantage of this “friendship.”  Over a year since the first love-feast has passed, and not only has there been no progress toward de-nuclearization, but Pyongyang has even: (1.) published its definition of that term, which begins with the removal from the Korean peninsula of all forces of that notorious nuclear power, the U.S. of A.; (2.) openly pressed forward with development of short- and medium-range ballistic missiles capable of delivering nuclear warheads; and (3.) probably opened at least one new secret underground facility for uranium enrichment.  There is no reason to suppose that Kim has done anything but (at a minimum) improve his ability to sprint to the compilation of a substantial stockpile of nuclear weapons and the completion of a capable ICBM, as soon as he may feel either confident of doing so in secrecy or free to renounce any commitment to denuclearization.  Yet Trump has not done so much as press for a deadline for future talks.

Trump’s boasting about his personal diplomacy and the skepticism of all expert opinion on the subject are bound to create one of the themes of the 2020 Presidential campaign.  Sometime in the latter stages of the campaign – August or October? – will come a period during which the obvious explosion of the Trump-Kim “friendship” would provide the most useful material for Trump’s opponent to use against him (I was going to say, “would prove the most embarrassing for the Trump forces,” but the shameless cannot feel embarrassment).

Kim, who has the measure of Trump and is determined to solidify his permanent membership in the nuclear club, surely knows this.  A breakout move on his nuclear stockpile or ICBM or both at this time, however solemnly attested by the hated “intelligence community,” would simply be denied by the Administration as long as Kim does Trump the favor of denying it himself.  Any doubt that this will work for Trump, at least as well as the rest of his playing to the base works, should be dispelled by the mere mention of the names Vladimir Putin and Mohammad bin Salman.

Kim’s goal is presumably the Finlandization of South Korea.  When he has plenty of nukes and the missiles to land them with anywhere in his neighborhood, while the U.S. is still whistling his tune of denial and kumbaya, then South Korea, Taiwan and Japan will face the stark choice: continue to ignore the demise of the American post-War order or accept satellitization by Communist China/North Korea.  Will the Nuclear Non-Proliferation Treaty evaporate under the rays of a new Rising Sun, or is Japan a permanently spent force that knows it is spent?  And which outcome will be worse for Great-Again America?

Such were the questions on the table at the Two Pleasant Luncheons in the East, but we may be sure that only one side recognized them.

* Theses on the Korean Problem

Sanctions and Kleptocrats

5/22: President Donald Trump said the U.S. is reconsidering penalties against Chinese telecommunications maker ZTE Corp. as a favor to the country's president Xi Jinping, prompting members of Congress to warn him against softening the punishment.

"The president asked me to look into that and I am doing it," Trump told reporters at the White House.

- - - - - - - - - - - - - - - - - - - - - - - 

6/20: President Trump urged Republican lawmakers not to scuttle his administration’s efforts to help the Chinese telecom firm ZTE, warning them that his reprieve for the company was part of a broader geopolitical negotiating strategy.

Mr. Trump and Republican lawmakers met at the White House to discuss the fate of the company, which had been banned by the Commerce Department from buying American products this year as punishment for violating American sanctions. The administration has since lifted that ban at Mr. Trump’s request and over the objections of lawmakers, who voted Monday to reinstate the penalties on ZTE.

Even though his own Commerce Department had identified ZTE's sanctions violations as serious, deliberate and serial, Mr. Trump ordered the Department to water down the penalties, which would have put ZTE out of business, after President Xi Jinping of China personally lobbied him to reconsider.

= = = = = = = = = = = = = = = = = = 

Well.  How 'bout them apples.

And here I'd been wondering how the U.S. got Russia and China to use their Security Council seats not to veto but to affirm tough sanctions against Iran and North Korea; thinking that the Obama and then Trump Administration's diplomats deserved congratulations.

I'll bet Putin and Xi feel they deserved more than that.  And now that Trump has redefined (sc. abolished) the whole concept of government ethics, how can it be long before they start getting it? Lunch at Scarpetta, ambassadorial table-talk nobody else can quite overhear (without electronic assistance): "Really quite necessary, I am sorry to say. But mon cher, are you quite sure the provisions on aluminum are strict enough? Pass the butter, please."

Larry Kudlow Leaves Little Patent Pumps All Slobbery

Another perfect non sequitur

Kudlow called the document all seven participants had approved before Trump left Quebec “a good communiqué.”  Then he says it was Trump’s duty to take back his approval of this good communiqué because when Trump was “barely on the plane” Canadian P.M. Trudeau held a press conference and in response to one of the questions affirmed that Canada would be proceeding with the imposition of retaliatory tariffs as a counter-action to the U.S. tariffs on Canadian goods which Kudlow’s beloved leader has now put into effect.

Kudlow acknowledged that Trudeau wasn’t saying anything he hadn’t said before.  But he said this time was different because Trudeau said it after U.S. approval of “a successful G-7 communiqué which President Trump and the others all worked in good faith to put a statement together.”

One wonders whether the other heads of government knew that if Trump worked with them “in good faith to put a statement together,” they could never again say anything displeasing to Trump.  Perhaps if they’d known this was part of the deal they would have walked away.

Kudlow didn’t say in what way Trudeau’s remarks were inconsistent with the text of the joint statement, or how anything said at the P.M.’s press conference made the good communiqué any less good.

“No! No –” Well, Yes, But the Other Guy Started It

Reminded by his interlocutor that Trump reneged on the good G7 communiqué, Kudlow exclaimed “No!”  Evidently sensing that such blank denial might prove a difficult line to maintain, he quickly resorted to offering an explanation.  “Then Trudeau decided to attack the President.  That’s the key point.” And as everybody knows, “if you attack [Trump] he’s going to fight back.”

But if Trudeau was only saying the same things he had said before the G7 meeting, and then it wasn’t so threatening an “attack” on Trump that it kept him from coming to Quebec and working with the other leaders to put together the good communiqué approved by all, why would Trudeau’s saying the same things again be so frightening and dangerous an “attack” as to compel the President to withdraw his approval of the statement?

Trudeau denounced the tariffs Trump unilaterally imposed as illegal, implying that Trump’s use of the “national defense” exception to America’s trade agreements is (at least as applied to Canadian steel and aluminum) a sham.  But he said nothing at all about Donald J. Trump.  Apparently, Kudlow sees any criticism of Trump’s policies as an attack on Trump, and thinks it’s not only desirable but noble and Presidential of Trump to “fight back.”

But even if we take it for granted that the personal feelings and proclivities of Donald J. Trump are what matter here, next to which the friendships of great nations and the prosperity and welfare of tens and hundreds of millions of ordinary humans count as nothing, why didn’t our fearless leader turn Air Force One around, go back to Quebec, seek Justin Trudeau out and punch him on the nose?  Or slap the weak Canadian’s face with one of his tiny gloves?

Why, even assuming Trump had been “attacked” by Trudeau and might properly have sought to “fight back” against him, should such fighting back take the shape of renouncing the good communiqué Trump worked so hard with all the other leaders (five-sixths of whom were not Trudeau) to put together?  Why wasn’t publicly calling our neighbor’s elected leader “weak and dishonest” enough of a personal counterattack?

And even if “weak and dishonest” wasn’t nearly enough, maybe instead of withdrawing consent to the good communiqué which was the product of so much hard, collaborative effort (weren’t we supposed to picture sweat pouring from Donald’s furrowed brow – long, long after midnight?) the five non-sinning national leaders would have preferred that Trump just heap some more of his intelligent insults on the Frenchified little panty-waist.  Stuck-up, stunted know-it-all. Low-energy, crooked, goofy, crazy, lyin’ Justin.  Assuming he could find good insults that aren’t reserved for use on fellow Republicans, Trump might have fought back and enjoyed himself, while letting previously settled international agreements alone.  Guess Kudlow didn’t think of that.

On to Singapore!

As far as I know, Kim Jong Un has only identified the U.S. cities he would hit with his atom-tipped ICBMs.  He hasn’t threatened Canada.  Neither has Canada pledged that if necessary it will use its nuclear weapons in defense of South Korea and Japan in order to keep those states from renouncing the NNPT and developing bombs of their own.  (For one thing, Canada hasn’t got nuclear weapons.)  But Kudlow says Trudeau “should have known better” than to irritate Trump while he was flying off to shake hands with the North Korean dictator.  Trump’s got to “stand strong” in Singapore, so he’s “not going to allow the people to suddenly take pot shots at him.”  What’s “sudden” about Trudeau saying the same things he’s said before, things in no way inconsistent with the now-dishonored (by Trump) communiqué, Kudlow doesn’t explain, but apparently it’s got something to do with Trump’s travel plans.

I’m not sure if Kudlow means it’s OK for Trump to “take it all back” as long as he does so before he lands in Washington – a sort of aeronautical king’s-x.  (Maybe if he kept his little fingers crossed, too?)  But we are only too likely to hope he does, and Trump does, after the Singapore summit ends.  The wily and blood-stained tyrant will probably show the world why the Greeks considered sycophancy an Oriental art.  Likely he will outdo even Lickspittle Larry, and so leave deal-maker Trump stripped down to his gold teeth.

Our next lesson will be that the Fearless Leader, naked or not, remains fully clad in the eyes of his “base” until and unless Fox News tells them otherwise.  (And why should it make that ratings-shattering mistake?)  Woe to those who then look to Republican Senators for salvation!