Monday, February 21, 2022

No War With Russia

What, exactly, is the interest of the United States in Ukraine? According to the U.S.-Ukraine Charter on Strategic Partnership (hereinafter the “Strategic Partnership”) signed by U.S. Secretary of State Antony J. Blinken and Ukrainian Foreign Minister Dmytro Kuleba in Washington, D.C. on November 10, 2021 [1], the interest is quite extensive.

Apparently, we are now “strategic partners” with Ukraine for the stated reason that there are “core principles and beliefs shared by both sides….” And both countries “intend to continue a range of substantive measures to prevent external direct and hybrid aggression against Ukraine and hold Russia accountable for such aggression and violations of international law, including the seizure and attempted annexation of Crimea and the Russia-led armed conflict in parts of the Donetsk and Luhansk regions of Ukraine, as well as its continuing malign behavior. The United States intends to support Ukraine’s efforts to counter armed aggression, economic and energy disruptions, and malicious cyber activity by Russia, including by maintaining sanctions against or related to Russia and applying other relevant measures until restoration of the territorial integrity of Ukraine within its internationally recognized borders.”

While the United States Constitution provides that the President has “Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur…,” [2] there doesn’t seem to be any constitutional provision for such agreements as the Strategic Partnership. It seems that the Framers of the Constitution never thought about the President entering into agreements with foreign powers without the advice and consent of two-thirds of the Senators present to vote on them.

Now the Constitution nowhere says that the President can’t enter into such agreements. But the Constitution is supposed to be a document that tells the federal government what it can do, not what it cannot do. The Constitution specifically gives the President power to enter into treaties subject to the stated stipulations. But it nowhere says that if the President doesn’t want to bother with Senate ratification, he can simply make agreements like the Strategic Partnership.

Nonetheless, the Supreme Court has given executive agreements legal effect. [2] And while this may have been a tolerable convenience in minor cases, the Strategic Partnership saddles us with a commitment that may bring us an inch away from war with a nuclear power.

True, there is nothing that says that we are committed to enter the war should Russia attack Ukraine. All we have promised to do is impose economic sanctions. And President Biden has said that our response will not involve U.S. troops. But is there anyone who doubts that, should the attack occur, voices will be raised saying that we should not tolerate such an affront? Isn’t it obvious that the party currently out of power will try to attribute such an incident to the current President’s weakness?

3000 U.S. troops have been ordered into Eastern Europe. [3] Ostensibly, this is to support NATO members. Why? Is there any particular reason to believe that Russia will actually attack NATO countries because of its dispute with Ukraine?

We don’t need to be psychic in order to be uneasy. The American government has given us plenty of reason down through the years for us to be wary of its trigger finger. And for more than a century it has given us no reason to think it is telling us the truth as a regular practice.

President James K. Polk declared “to the nation that Mexico had ‘spilled American blood on the American soil.’ The problem is that it wasn’t, strictly speaking, American soil. That territory had been under dispute between Mexico and Texas during the time of Texas independence, and America inherited that dispute when it acquired Texas through annexation in 1845.” [4] Now Polk wanted to acquire what is now the southwestern United States, by war with Mexico if need be.

So, he “sent an army into the disputed territory and planted it directly across the Rio Grande from the dusty little Mexican town of Matamoros, where a large number of Mexican troops were stationed. This was highly incendiary, and it inevitably led to a skirmish in which 11 American soldiers were killed and another 50 or so captured. Polk promptly sent a message to Congress saying the United States and Mexico were in a state of war and calling for a congressional war declaration.”

“The Spanish-American War began in 1898 when President William McKinley claimed that the warship USS Maine had been blown up by Spanish saboteurs. Subsequent investigations showed that the explosion originated inside the ship, probably due to an accidental fire in the munitions compartment.

“More recently, the Vietnam War moved into high gear when President Lyndon B. Johnson used an incident in the Gulf of Tonkin to justify massive military intervention in Southeast Asia. The incident occurred in disputed waters, and one supposed gunboat attack never happened. The enemy might have been a pod of whales.” [5] 

As for the Iraq War, “President George W. Bush, apparently persuaded by Vice President Dick Cheney, argued that Iraqi leader Saddam Hussein possessed weapons of mass destruction, including a nuclear capacity, and that there were clear connections between Iraq and the al-Qaeda terrorists responsible for the 9/11 attacks on the World Trade Center and the Pentagon. Both claims were concocted. 

“But the dark shadow of 9/11 hung ominously over all deliberations in that moment, so the CIA bent the evidence to fit the fabrication, a cowed Congress went along and the bulk of the American media endorsed the deception. Dissent became unfashionable. 

“When the facts became clear and the justification for our military intervention evaporated, a new rationale needed to be invented. We were, it turned out, committed to the creation of a democratic government in the middle of the Middle East.” 

But they’re telling us the truth this time, right? When are we going to stop being Charlie Brown for the U.S. government’s Lucy? Are we really going to try to kick the ball again? 

The truth is, there is plenty of pro-Russian sentiment in eastern Ukraine. [6] This situation is far more complex than one strong nation thinking about invading a smaller one in order to feed the ego of a foreign dictator. Most of us in the United States don’t have a firm grasp on what’s going on there, and the outcome of this crisis will have little, if any, impact on our lives. Unless we make it have an impact.

This is why George Washington, who said many prescient things in his Farewell Address, told us to observe “good faith and justice towards all nations; cultivate peace and harmony with all….” [7] And with that advice, he gave a warning: 

“In the execution of such a plan nothing is more essential than that permanent, inveterate antipathies against particular nations and passionate attachments for others should be excluded and that in place of them just and amicable feelings towards all should be cultivated. The nation which indulges towards another an habitual hatred or an habitual fondness is in some degree a slave. It is a slave to its animosity or to its affection, either of which is sufficient to lead it astray from its duty and its interest. Antipathy in one nation against another disposes each more readily to offer insult and injury, to lay hold of slight causes of umbrage, and to be haughty and intractable when

accidental or trifling occasions of dispute occur. Hence frequent collisions, obstinate, envenomed, and bloody contests. The nation, prompted by ill will and resentment, sometimes impels to war the government, contrary to the best calculations of policy. The government sometimes participates in the national propensity and adopts through passion what reason would reject; at other times, it makes the animosity of the nation subservient to projects of hostility instigated by pride, ambition and other sinister and pernicious motives. The peace often, sometimes perhaps the liberty, of nations has been the victim. 

“So likewise, a passionate attachment of one nation for another produces a variety of evils. Sympathy for the favorite nation, facilitating the illusion of an imaginary common interest in cases where no real common interest exists, and infusing into one the enmities of the other, betrays the former into a participation in the quarrels and wars of the latter without adequate inducement or justification. It leads also to concessions to the favorite nation of privileges denied to others, which is apt doubly to injure the nation making the concessions—by unnecessarily parting with what ought to have been retained—and by exciting jealousy, ill will, and a disposition to retaliate in the parties from whom equal privileges are withheld. And it gives to ambitious, corrupted, or deluded citizens (who devote themselves to the favorite nation) facility to betray or sacrifice the interests of their own country without odium, sometimes even with popularity; gilding with the appearances of a virtuous sense of obligation a commendable deference for public opinion, or a laudable zeal for public good, the base or foolish compliances of ambition, corruption, or infatuation.” 

This warning, though given to us in 1796, couldn’t be more timely.

Most of us won’t profit from the military expenditures that will be made in connection with the Ukraine crisis, expenditures that will be made regardless of whether the United States becomes involved militarily. Isn’t time that we stop crafting our foreign policy to satisfy the interests of the few who will? Isn’t it time that the United States begin heeding the advice of its first President that the “great rule of conduct for us in regard to foreign nations is, in extending our commercial relations, to have with them as little political connection as possible. So far as we have already formed engagements, let them be fulfilled with perfect good faith. Here let us stop.”

Is the Strategic Partnership such an engagement that should be fulfilled with perfect good faith? It isn’t a treaty that binds us, but we would suffer a loss of credibility internationally if we abandoned it. Still, we shouldn’t forget that the Strategic Partnership in no way obligates us to enter the conflict with our own military, and that must not happen.

In the meantime, let this incident be a lesson to us that cavalier diplomacy is highly dangerous. From this point forward, let Senate ratified treaties be the sole means by which the United States commits itself internationally, and let this be known to the entire world.





Wednesday, January 5, 2022

Voluminous and Incoherent

With Senator Joe Manchin apparently putting the kibosh on President Biden’s “Build Back Better” legislation, it’s time to take a serious look at how Congress goes about the business of lawmaking. Either Alexander Hamilton or James Madison (it is undetermined who) famously wrote in Federalist No. 62, “It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood….” [1]

The House version of the Build Back Better Act is 2466 pages long. [2] Your humble servant would like every member of the House of Representatives who voted on the bill (yea or nay) to swear under penalty of perjury that they read and understood the whole thing, including this part: 

“Section 1860D-2(b)(2) of the Social Security Act (42 U.S.C. 1395w-102(b)(2)), as amended by section 139201, is further amended–

“(1) in subparagraph (A), by striking ‘Subject to subparagraphs (C) and (D)’ and inserting ‘Subject to subparagraphs (C), (D), and (E)’; and           

“(2) by adding at the end the following new subparagraph:                   

“’(E) Enrollee option regarding spreading cost-sharing.–The Secretary shall establish by regulation a process under which, with respect to plan year 2024 and subsequent plan years, a prescription drug plan or an MA-PD plan shall, in the case of a part D eligible individual enrolled with such plan for such plan year who is not a subsidy eligible individual (as defined in section 1860D-14(a)(3)) and with respect to whom the plan projects that the dispensing of the first fill of a covered part D drug to such individual will result in the individual incurring costs that are equal to or above the annual out-of-pocket threshold specified in paragraph (4)(B) for such plan year, provide such individual with the option to make the coinsurance payment required under subparagraph (A) (for the portion of such costs that are not above such annual out-of-pocket threshold) in the form of periodic installments over the remainder of such plan year.’.” [3]

But I wouldn’t dream of being so strict with you, dear reader. Instead, I will provide the bill summary prepared by the Congressional Research Service:

“This bill provides funding, establishes programs, and otherwise modifies provisions relating to a broad array of areas, including education, labor, childcare, health care, taxes, immigration, and the environment. (The bill is commonly referred to as the Build Back Better Act.)

“For example, the bill provides funding for

    management of the National Forest System;

    job placement and career services;

    safe drinking water, energy-efficiency, and weatherization projects;

    electric vehicles and zero-emission, heavy-duty vehicles;

    public health infrastructure and supply chain resiliency;

    housing, rental, and homeowner assistance programs;

    cybersecurity programs;

    tribal infrastructure, housing, environmental, and health programs;

    wildfire prevention, drought relief, conservation efforts, and climate change research;

    small business assistance and development;

    transit services and clean energy projects in low-income communities; and

    infrastructure and administration of the Department of Veterans Affairs.

“Additionally, the bill establishes programs to provide

    up to six semesters of free community college,

    free child care for children under the age of six,

    free universal preschool services, and

    health benefits for eligible individuals who reside in states that have not expanded Medicaid.

“The bill also includes provisions that

    establish a methane fee for certain petroleum and natural gas facilities;

    expand Medicare to cover dental, hearing, and vision care;

    provide certain aliens with a path to permanent resident status (e.g., those who entered the United States as minors);

    provide up to 12 weeks of paid family and medical leave;

    restructure and increase the tax rates for certain corporations and high-income individuals (e.g., individuals with income over $400,000); and

require the Department of Health and Human Services to negotiate maximum prices for certain brand-name drugs under Medicare.” [4]

Those who have any objection to the program outlined here should imagine that they believe that a nation cannot actually run out of its own fiat currency, that CO2 really is a greenhouse gas produced by burning fossil fuels, and that it is possible for there to be social and political goals more worthy than minimizing the tax burden on the wealthy. What I will say hereafter, therefore, will not be born out of a disdain for what appears to be the intent of the legislation.

But I have much disdain of the violation of the principle enunciated by Hamilton and/or Madison in Federalist No. 62 that is to be found in the proposed Build Back Better Act. Politicians have been holding forth on the Act on television, and, given the well-known propensity of the political class for truth-telling, it is difficult for the non-predisposed citizen to know who to believe. Probably neither side is a likely and sensible conclusion.

In the quest to understand the issue of whether it would be in the best interest of the country for the legislation to pass, most of us are at the mercy of our nation’s news media, which is no longer the non-profit, non-partisan enterprise it once was. There could be a work around if we could read the legislation for ourselves, but it’s, as I mentioned, 2466 pages long, and contains language such as is contained in the foregoing example. (Why, it’s almost like they were trying to obscure the contents of the proposal on purpose.)

It is likely that few, if any, news reporters have read the entire bill; and we should be dubious if any member of Congress claims to have read the whole thing.

How is representative democracy supposed to work if people don’t know what is being proposed by their legislature? It can’t, obviously. How can it work if we can’t really tell whether we are being represented? Well, we already knew we weren’t being represented. But now we understand a critical mechanism for making that work.

It doesn’t have to be this way. Each of those items listed in the legislative summary could be handled as separate bills. The effect this would have on members of Congress acting in the public interest would be enormous. Imagine the optics of a senator or representative voting against a bill requiring Medicare to negotiate drug prices; or expanding Medicare to cover dental, hearing, and vision care. But in a bill that covers many subjects, and that no one reads, a member of Congress can conceal his disdain for easing the financial burden on the elderly (which would be popular with that reliably voting segment of the population), and claim it is because he strongly opposes some less popular provision in the proposed legislation.

It is a systemic defect that assists politicians in a quest to conceal their motives from the voters. But there are remedies.

Forty-one “states currently have a single subject provision in their constitution which states that any legislation passed must deal with only one subject or it will be repealed. For example, the Florida Constitution reads: Art. III, Section 6 – Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title.” [5] And there is currently an effort to have that requirement imposed on Congress in the U.S. Constitution.

Such provisions also have benefits beyond preventing political chicanery. They also enhance the freedom of the more public servant minded among legislators from being presented “with the ‘Hobson’s choice’ of being ‘forced to assent to an unfavorable provision to secure passage of a favorable one, or conversely, forced to vote against a favorable provision to ensure that an unfavorable provision is not enacted.’” [6]

Other considerations are “improved legislative deliberation, greater transparency, and the resulting greater accountability to the public as purposes of the single-subject rule. As the Illinois

Supreme Court recently explained, one reason for the single-subject rule ‘is to promote an orderly legislative process. . .. “By limiting each bill to a single subject, the issues presented by each bill can be better grasped and more intelligently discussed.”’ The Missouri Supreme Court similarly asserted that by limiting each bill to a single subject, the rule enables bills to ‘be easily understood and intelligently discussed, both by legislators and the general public.’ So, too, the Pennsylvania Supreme Court has urged that the general aim of the rule is to ‘place restraints on the legislative process and encourage an open, deliberative, and accountable government.’”

With a single subject rule in place, legislators can more easily understand the effects of proposed legislation. Just as importantly, the rule makes it easier for voters to understand what their legislature is doing. That, in turn, enhances legislator accountability.

The problem, however, is that courts have found the idea of a single subject difficult to define, and court decisions across the country have been inconsistent. And it has been objected that the “single-subject rule’s view of relatively tidy, separate topic-by-topic deliberation and enactment is often in tension with the coalition-building and deal-making necessary for the legislative process to work in practice.”

But as for the coalition-building and deal making, this can be accomplished with more than one piece of legislation. True, a legislator might agree to vote for a subsequent bill in exchange for another legislator’s vote for a bill currently before the body, then renege. But his reputation among his fellows would be seriously damaged by such an act, and, because of that, it wouldn’t be a course of action often repeated.

As for the definitional problem, a more workable solution might be to require that any language in a bill that can logically be severed must be. This probably wouldn’t make the problem entirely disappear, but the rules of logic are both objective and knowable. Language like that should be included in a single subject amendment to the federal Constitution.