Think for a minute about coercion.
If another country changes its trade policies in a way that hurts the United States, then the United States — probably through Congressional action — should be able to respond by changing the United States’ trade policy. Perhaps even the president, without Congressional approval, should be allowed to change trade policy, although that’s less clear. But if another country does something completely unrelated to trade — say, for example, prosecuting a former government official for corruption — should the president be permitted to respond by changing U.S. trade policy?
That’s what President Donald Trump has done. Brazil is prosecuting Jair Bolsonaro for crimes related to an alleged coup. Trump is unhappy with this, so he’s unilaterally imposed a 50% tariff on goods imported from Brazil.
Brazil’s supposed offense has nothing to do with trade policy, but Trump thinks he can use U.S. trade policy as a method of coercion.
If Trump is right, that gives the president unrestrained power to coerce other countries to do whatever the president wants. Trump doesn’t like the prime minister of Nowhereistan? A gazillion percent tariffs until the country changes prime ministers! Why not? The president can coerce any foreign country to do anything.
Change your focus. Instead of thinking about foreign countries, think about American states. State laws govern state crimes and punishments. But Trump recently decided that he doesn’t like cashless bail (which is kind of odd, since he has, of course, repeatedly been released on cashless bail). Although the federal government has no power over how states administer bail, Trump has threatened to cut off federal funds from states that don’t eliminate cashless bail. Trump’s executive order doesn’t specify which federal funds will be cut off from the states. Presumably, Trump will want to exercise maximum coercion over the states — You allow cashless bail? Eliminate all federal funding to the state! No more federal highway money! No more federal welfare programs! — while states will insist that only funds related to the bail system (or some such thing) could be cut off.
Trump is again looking for a wide-ranging power to coerce: If the states don’t do what he likes — change the laws governing abortion! change the laws governing gun control! — the federal government has the right to cut off all federal funds.
So much for states’ rights.
Change your focus. Think about universities. If a university is unlawfully discriminating against some group — diversity programs are illegally discriminating against white kids; the university is illegally permitting antisemitism to go unchecked — then of course the federal government should be able to cut off funds relating to the illegal discrimination: no more money for diversity initiatives, for example.
But does the federal government really wield a blunderbuss in this situation? The federal government doesn’t like what a university is doing with its diversity initiatives, so the federal government is allowed to cut off hundreds of millions of dollars in grants for, say, medical research?
That’s what universities are facing, and it feels like coercion.
How about law firms? The federal government believes that law firms are engaged in vexatious litigation that hurts the national interest. Maybe the federal government has some interest in that. Maybe the government should litigate the cases, win, and ask the court to impose sanctions on the offending law firm. But can the government really forbid a law firm’s litigators from appearing in court and refuse to approve mergers proposed by a firm’s corporate clients to coerce the firm to abandon disfavored representations?
Trump’s federal government is trying to coerce the world: foreign governments, state governments, universities, and law firms. What comes next?
Oh! If the federal government doesn’t approve of an individual, the federal government can launch an investigation of that person. Just ask New York Attorney General Letitia James, or Gen. Mark Milley, or special counsel Jack Smith, or the rest of ’em. The cost of defending against a federal investigation, whether or not any charges ultimately result, imposes quite a financial burden. That’s pretty damn coercive.
Could it get any worse?
You betcha.
President Trump decided that 11 Venezuelans might be trafficking drugs, so he ordered the military to blow up the boat they were on. The U.S. could of course have stopped the boat and arrested the people on board, but that threatens mere time in prison. Blowing people to smithereens, before any charges are filed, is much more coercive.
Could Trump order similar strikes against people he deems to be terrorists? People he deems to be drug traffickers within the United States? Anyone else?
I understand that the federal government is powerful, and the president is a powerful guy. But does the president have, and do we really want him to have, unfettered power to coerce anybody, anywhere, for any reason at all?
Mark Herrmann spent 17 years as a partner at a leading international law firm and later oversaw litigation, compliance and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.
The post Everything Everywhere All At Once (Trump Edition) appeared first on Above the Law.
Think for a minute about coercion.
If another country changes its trade policies in a way that hurts the United States, then the United States — probably through Congressional action — should be able to respond by changing the United States’ trade policy. Perhaps even the president, without Congressional approval, should be allowed to change trade policy, although that’s less clear. But if another country does something completely unrelated to trade — say, for example, prosecuting a former government official for corruption — should the president be permitted to respond by changing U.S. trade policy?
That’s what President Donald Trump has done. Brazil is prosecuting Jair Bolsonaro for crimes related to an alleged coup. Trump is unhappy with this, so he’s unilaterally imposed a 50% tariff on goods imported from Brazil.
Brazil’s supposed offense has nothing to do with trade policy, but Trump thinks he can use U.S. trade policy as a method of coercion.
If Trump is right, that gives the president unrestrained power to coerce other countries to do whatever the president wants. Trump doesn’t like the prime minister of Nowhereistan? A gazillion percent tariffs until the country changes prime ministers! Why not? The president can coerce any foreign country to do anything.
Change your focus. Instead of thinking about foreign countries, think about American states. State laws govern state crimes and punishments. But Trump recently decided that he doesn’t like cashless bail (which is kind of odd, since he has, of course, repeatedly been released on cashless bail). Although the federal government has no power over how states administer bail, Trump has threatened to cut off federal funds from states that don’t eliminate cashless bail. Trump’s executive order doesn’t specify which federal funds will be cut off from the states. Presumably, Trump will want to exercise maximum coercion over the states — You allow cashless bail? Eliminate all federal funding to the state! No more federal highway money! No more federal welfare programs! — while states will insist that only funds related to the bail system (or some such thing) could be cut off.
Trump is again looking for a wide-ranging power to coerce: If the states don’t do what he likes — change the laws governing abortion! change the laws governing gun control! — the federal government has the right to cut off all federal funds.
So much for states’ rights.
Change your focus. Think about universities. If a university is unlawfully discriminating against some group — diversity programs are illegally discriminating against white kids; the university is illegally permitting antisemitism to go unchecked — then of course the federal government should be able to cut off funds relating to the illegal discrimination: no more money for diversity initiatives, for example.
But does the federal government really wield a blunderbuss in this situation? The federal government doesn’t like what a university is doing with its diversity initiatives, so the federal government is allowed to cut off hundreds of millions of dollars in grants for, say, medical research?
That’s what universities are facing, and it feels like coercion.
How about law firms? The federal government believes that law firms are engaged in vexatious litigation that hurts the national interest. Maybe the federal government has some interest in that. Maybe the government should litigate the cases, win, and ask the court to impose sanctions on the offending law firm. But can the government really forbid a law firm’s litigators from appearing in court and refuse to approve mergers proposed by a firm’s corporate clients to coerce the firm to abandon disfavored representations?
Trump’s federal government is trying to coerce the world: foreign governments, state governments, universities, and law firms. What comes next?
Oh! If the federal government doesn’t approve of an individual, the federal government can launch an investigation of that person. Just ask New York Attorney General Letitia James, or Gen. Mark Milley, or special counsel Jack Smith, or the rest of ’em. The cost of defending against a federal investigation, whether or not any charges ultimately result, imposes quite a financial burden. That’s pretty damn coercive.
Could it get any worse?
You betcha.
President Trump decided that 11 Venezuelans might be trafficking drugs, so he ordered the military to blow up the boat they were on. The U.S. could of course have stopped the boat and arrested the people on board, but that threatens mere time in prison. Blowing people to smithereens, before any charges are filed, is much more coercive.
Could Trump order similar strikes against people he deems to be terrorists? People he deems to be drug traffickers within the United States? Anyone else?
I understand that the federal government is powerful, and the president is a powerful guy. But does the president have, and do we really want him to have, unfettered power to coerce anybody, anywhere, for any reason at all?
Mark Herrmann spent 17 years as a partner at a leading international law firm and later oversaw litigation, compliance and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.
The post Everything Everywhere All At Once (Trump Edition) appeared first on Above the Law.
