Today's Words of Wisdom

Treasury Secretary Scott Bessent's brilliant - irrefutable! - defense of the President's emergency powers.

From The Economist:

Scott Bessent, Donald Trump's treasury secretary, defended the president's plan to impose tariffs on European countries that oppose his bid to take over Greenland. [Ed. note: See co-blogger Ilya Somin's post on why taking over Greenland is, simultaneously, "evil, illegal, and stupidly counterproductive" - the great authoritarian trifecta.] Citing the president's authority to impose tariffs in an economic emergency, Mr Bessent argued that America needed to control Greenland to prevent conflict in the Arctic: "The national emergency is avoiding a national emergency."

The man is a genius!  It's the emergency that can never end! Eight words that, in their terseness and inherent circularity, recall the great works of Samuel Beckett and Eugene Ionesco. Bravo, Mr. Secretary. Now that we understand what is at stake, we can all finally get behind the important work of destroying the NATO Alliance, attacking our friends and allies, and imposing authoritarian rule on the people of Greenland.

Comments

[denizen]

Let's assume for the sake of argument that access to the arctic is of extreme strategic value. Is it that unreasonable to claim that the failure to obtain an asset of substantial strategic value is an "unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States" within the meaning of 50 U.S.C. § 1701? I agree that Bessent's phrasing is poor because everybody should be saying it's already an emergency—not that it will become one later—for tactical purposes. But if he had lawyered the statement correctly, it doesn't seem like an odd claim.

I don't really understand the mindset here since it seems to be more about a reflexive opposition to Trump than anything else. It's clear that much of Europe is now opposed to American interests and values. They're also a disaster for us on foreign policy. They've, for years, courted a pointless escalation of a conflict with Russia for no coherent reason at the cost of untold lives of Ukranians and Russians. NATO's Article 5 is a grave threat to US foreign policy interests when those same "friends" would clearly be happy to make false claims of a Russian attack on their territory in a hopefully failed attempt to get the US more directly involved (e.g., the September 2022 "Russian missile hit Przewodów" nonsense). Coercing compliance with our foreign policy goals seems reasonable where the targets of those tariffs are no longer much good as friends.

[Riva]

What if China and Russia were expending tremendous assets competing with the US and the West in the polar Arctic region with designs to control navigation/movement and critical resources in the area? Actually, it’s not a “what if” question.

[denizen]

Yeah, agreed as a complete non-expert. But I think the better answer on a legal blog is that none of us have meaningful expertise in the strategic value of the arctic. That's the sort of thing the administration gets to decide.

[David Post]

Riva: What if China and Russia were expending tremendous assets competing with the US and the West in the polar Arctic region with designs to control navigation/movement and critical resources in the area? Actually, it’s not a “what if” question.
The answer is: send in more members of our Armed Forces, as we are entitled to do under the 1917 Treaty." As many as you think are necessary to deter the Russians. Get our European allies to contribute troops and other military assets as well.
That's what we can and should do. It does not involve taking over Greenland.
Get it?

[Riva]

A 1917 Treaty absolutely defines and limits all options in 2026? Washington must be rolling over in his grave. But sure, the geopolitical landscape hasn't change since then so I see your point. But I didn't realize you were so expert on the most efficacious deployment of military resources. I'm a little fuzzy though on how that deployment would be a better long term substitute than US jurisdiction and control that would could prevent foreign adversaries from ever gaining a foothold in Greenland in the future. I guess the president will just have to defer to Berkley law school on those policy and technical matters.

[denizen]

Isn't the obvious response to our current right to post troops in Greenland that this right can be revoked? Let's say again under my assumption that there is some extremely compelling reason that the arctic is essential (maybe changes in shipping lanes from increasing temperatures, maybe for nuclear defense with increasingly hypersonic ICMBs, who knows). If world powers agree with this theory, it seems more than plausible that there would be interest in competing offers for Greenland.

Also, it's not the 1917 treaty but rather the 1951 defense agreement. That's important because of relevant provisions of that agreement suggesting that any right of access is condition on continued joint NATO membership.

The relevant right comes from Article III(1)(a): "United States ships, aircraft and armed forces shall have free access to Gronnedal with a view to the defense of Greenland and the rest of the North Atlantic Treaty area. The same right of access shall be accorded to the ships, aircraft and armed forces of other Governments parties to the North Atlantic Treaty as may be required in fulfillment of NATO plans."

Further, the agreement's preeamble suggests that the treaty is a result of Denmark and the United States' joint participation in NATO: "The Government of the United States of America and the Government of the Kingdom of Denmark, being parties to the North Atlantic Treaty signed at Washington on April 4, 1949 having regard to their responsibilities thereunder for the defense of the North Atlantic Treaty area, desiring to contribute to such defense and thereby to their own defense in accordance with the principles of self-help and mutual aid, and having been requested by the North Atlantic Treaty Organization (NATO) to negotiate arrangements under which armed forces of the parties to the North Atlantic Treaty Organization may make use of facilities in Greenland in defense of Greenland and the rest of the North Atlantic Treaty area, have entered into an Agreement for the benefit of the North Atlantic Treaty Organization in terms as set forth below:"

While the text of Article III(1)(a) doesn't say so explictily, it seems pretty unlikely that Denmark would believe that the United States has any rights under Article III(1)(a) should it withdraw from NATO.

[David Post]

Let's assume for the sake of argument that access to the arctic is of extreme strategic value.
OK, consider it assumed.
Is it that unreasonable to claim that the failure to obtain an asset of substantial strategic value is an "unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States" within the meaning of 50 U.S.C. § 1701?
Yes, it is completely unreasonable. Why? Because if "the failure to obtain an asset of substantial strategic value" constitutes an "emergency" sufficient to justify the President's invocation of "emergency powers," then we are NEVER going to be in a non-emergency situation, and the President will hereinafter have dictatorial control.
Here are "assets of substantial strategic value" that we have failed to obtain:
The shipping lanes between China and the Philippines.
Poland
The Ural Mountains
Ukraine's drone fleet
Turkey
Panama
Iran's nuclear weapons (if there are any)
Israel's nuclear weapons.
Get it? You're trying to construe a statute that gives the President extraordinary emergency powers. A reading of that statute that can ALWAYS be invoked for a million different assets we have "failed to obtain," then that reading is ridiculous.
Please respond - I'm curious if I've failed to explain myself clearly.

[denizen]

I don't think your position makes sense to me. The assumption—which could be wrong, I have no idea—is that Greenland has current "extreme strategic value." I probably should have said "current." But it seemed apparent.

You raise certain examples where any past "extreme strategic value" is gone. The question is if the administration currently believes that there is a foreign-policy exigency. But it's not open-ended permanent emergency. Instead, you need a proper determination of current exigency. Then there has to be some kind of tailoring between the nature of the exigency and the implemented tariff. We can then talk about more nuanced and difficult questions like the appropriate standard of review for that determination. But that’s a bit beyond the scope here.

Also, I don't get the concern about "dictatorial control." It is obvious that the Constitution vests power over tariffs in Congress. The only reason it's even potentially legitimate for the President to impose tariffs is through statutory authorization. As a lawyer who's probably made more non-delegation arguments than 99.999% of lawyers, I have some serious doubts about the constitutionality of IEPPA’s delegation. But Congress can easily solve the problem if indeed "dictatorial control" is a real concern.

[Josh R]

Instead, you need a proper determination of current exigency. Then there has to be some kind of tailoring between the nature of the exigency and the implemented tariff.

Is that up to SCOTUS to determine?

[denizen]

Yeah, who knows what it'll hold in the tariff case. I guess the Court could say there's no requirement of anything and that the President can do whatever he wants. But that seems pretty unlikely since there would be some serious non-delegation concerns there.

[Josh R]

You stated such nuances as whether an emergency exists and whether there is proper tailoring are a bit beyond the scope here. But David's point when he listed all the other potential extreme strategic interests that might justify emergency powers is that those nuances (which SCOTUS will have to deal with) are critical. You need to deal with them before deciding whether Greenland is an emergency and its solution are lawful. Otherwise, Trump gets to whatever he wants (which I'm an certain is his position).

[David Post]

Hmm... You write
"You raise certain examples where any past "extreme strategic value" is gone. The question is if the administration currently believes that there is a foreign-policy exigency."
?? Poland is not a country where "any past extreme strategic value is gone" - nor are the Iranian nuclear assets - nor is Israel's nuclear arsenal - nor are the shipping lanes in the South China Sea.
Nor is South Korea, or Colombia, nor dozens and dozens of places;? which still have "extreme strategic value." You want to leave this decision to the Administration?
So let's be clear: forget David Post's determination. If the Administration determines that Taiwan is of "extreme strategic value" TODAY, it falls within the president's emergency powers? and we can seize it?

[ReaderY]

No. This country, indeed any country or any human society, has always faced long-term potential threats of various kinds. They are very ordinary things. Potential threats that have been around for a long time - and this one certainly has - are neither unusual nor extraordinary.

Sane leadership addresses long-term threats by long-term policies and strategies. Acting as if the sky has fallen because one suddenly notices the presence of something that everyone else has known has been there for a long time is a sign of a leadership that is not only mentally very unstable, it is completely incompetent to address threats in any actually effective way.

[Botaglove]

Someone paid weekly by the Kremlin would not have written a different post.

[denizen]

I can't fathom what's going on in your head. Why would I take that position besides my genuine belief that it's true? I don't get anything from that position. It's to my personal detriment since people don't like it.

Your post is basically the genesis of the "everybody who disagrees with me is a Russian agent" meme.

[Josh R]

He didn't say you were paid by the Kremlin, just that someone who was paid would write the same thing such as:

They've, for years, courted a pointless escalation of a conflict with Russia for no coherent reason at the cost of untold lives of Ukranians and Russians. NATO's Article 5 is a grave threat to US foreign policy interests when those same "friends" would clearly be happy to make false claims of a Russian attack on their territory in a hopefully failed attempt to get the US more directly involved

[denizen]

Who cares? What does it have to do with anything? I literally don't get it. Is it some assertion that any position that the Russian government takes is wrong merely because the Russian government took it? That seems obviously fallacious.

[Josh R]

I agree a position is not wrong simply because Russia agrees. But your position that Article 5 is bad is wrong because it aids Russian aggression (which is bad in its own right as well as being something Russia agrees with).

[David Nieporent]

What kind of brain damage does it take to argue that stopping Russian aggression by preventing it from attacking a friendly country is not in our interest, but stopping Russian aggression by attacking an ally is in our interest? And did you get it by being dropped on your head repeatedly or from taking too many street grade pharmaceuticals?

[Riva]

If you’re this worked up over Greenland, I’m looking forward to the meltdowns here if President Trump invokes the Insurrection Act to combat the organized violence Minnesota officials welcome as a convenient distraction from the industrial level fraud they enabled. The reactions from Court decisions upholding tariffs and the president’s birthright citizenship policy will be equally amusing.

[ReaderY]

People holding signs is violence?

But of course. The emergency is to prevent an emergency. Protesters are dangerous becausw they MIGHT use those signs as weapons. Or maybe even have guns in their pockets. So since we fear they MIGHT engage in violence, we get to deal with them as if they are actually doing so.

“The emergency is to prevent an emergency” is what it’s all about.

[Longtobefree]

To an ICE officer with internal injuries, there is no MIGHT to your conflation of the peaceful protesters and the insurrectionist rioters.
To the next woman to be raped and murdered by an illegal alien the mob kept from arrest, there is no MIGHT involved.

Do you ever think the proper course for the Biden administration would have been to actually change immigration laws instead of ignoring them?

[David Post]

RivaI’m looking forward to the meltdowns here if President Trump invokes the Insurrection Act to combat the organized violence Minnesota officials welcome as a convenient distraction from the industrial level fraud they enabled.
Yes, that'll be a real laugh riot. "Will be wild!!"
And if you get the chance, can you describe the evidence for your claim that "Minnesota officials welcome" the "organized violence" as a "convenient distraction" from their fraud?? Just curious.

[ReaderY]

Professor Post beat me to it.

[Riva]

My evidence? Well my comment is my opinion based on the public record. Kinda like your post.

That democrat officials would seem to prefer the focus be redacted from the massive fraud being exposed in Minnesota seems almost self evident especially given that Minnesota officials have preferred to ignore and deny it for years. And, they certainly seem to covet support from those communities that are sources of most of the fraud. Ask Ilhan Omar if you want more details.

As for welcoming violence, maybe we could substitute "instigating," with comments from Walz and other state officials describing law enforcement as an "occupation" that terrorizes communities, and threatening state prosecutions of federal officers performing their duties. That the mob's disturbing the peace and engaging in violent confrontations is for all intents and purpose ignored by state officials seems also to be pretty self-evident. And these mobs are very organized, with websites and training for their "foot soldiers." One of these activists just lost her life engaging in her mission of obstruction that compelled an officer to defend himself.

[David Post]

That's a pretty lame set of evidence, I have to say. "Based on the public record" (WHAT PUBLIC RECORD?) "Almost self evident" {!!) "pretty self-evident" They "seem to covet" ?? That's all you've got?
Seems to me you've taken the Kool-Aid, Riva. If you think a public statement from the Governor that federal ICE agents are an "occupation that terrorizes communities" constitutes "instigation of violence," as opposed to a correct statement of fact, I guess we'll just have to agree to disagree about that.

[Josh R]

It's not a statement of fact. It's an opinion protected by the First Amendment (it does not incite and likely to produce imminent lawless conduct).

[David Nieporent]

That democrat officials would seem to prefer the focus be redacted from the massive fraud being exposed in Minnesota

Not only is the bot not programmed for grammar or vocabulary, but it's not programmed for logic. It was the administration that took the focus off the supposed fraud — probably because it knew that the YouTube video was a scam — by sending in stormtroopers to attack the city, changing the national topic from the supposed financial schemes to federal violence. And disrupting the fraud investigations by impelling the people who have been prosecuting them to quit.

[Stuart]

Thank God Josh did not write this post.

[Ruqt]

History may teach. Or, we could return it and request a refund from France.
May be wiser to seek to understand rather than criticize. Reading up on Arctic Europe, e. g. The Barents Observer online over the past year, offers more perspective.
With Assist from Ai.
In an August 1803 letter to John Dickinson, Jefferson admitted that the Constitution gave the government no power to hold or incorporate foreign territory into the Union.
However, Jefferson viewed the control of the Louisiana Territory, particularly the port of New Orleans, as vital to the United States' survival.
"Embryo of a Tornado": In an April 25, 1802, letter to Pierre Samuel Du Pont de Nemours, Jefferson warned that French control of the territory would be an "embryo of a tornado" that would eventually force the U.S. into a permanent alliance with Britain.
Strategic Importance: Jefferson emphasized that the fertility of the territory would soon produce more than half of the nation's total output, making New Orleans essential for getting goods to market.
"Stretched 'til it Cracked": He privately acknowledged that in approving the purchase without a specific amendment, he had "stretched the Constitution 'til it cracked".
The Guardian Analogy: To justify his actions to his Cabinet, Jefferson compared himself to a guardian investing the money of a ward for their future benefit, even if it exceeded his technical authority.