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The Supreme Court’s enigmatic “shadow docket,” explained
Chief Justice John Roberts speaks before presenting US Supreme Court Justice Ruth Bader Ginsburg the American Law Institute’s Henry J. Friendly Medal in Washington, DC, on May 14, 2018. | Jim Watson/AFP via Getty Images How the Supreme Court hides major conservative victories in plain sight. Last week, the Supreme Court handed down a 5-4 decision blocking a lower court’s order requiring a California jail to take several steps — such as socially distancing inmates and providing them with “hand sanitizer containing at least 60% alcohol” — to prevent the spread of Covid-19 within the jail. I have no idea why the Supreme Court would do such a thing, and neither does anyone else who isn’t a justice or one of their closest advisers. The reason for our ignorance is that the five justices in the majority — all five of the Court’s Republicans — didn’t bother to explain their decision. The entirety of the Court’s order in Barnes v. Ahlman is a single paragraph of boilerplate language, informing the reader that “the district court’s May 26, 2020 order granting a preliminary injunction is stayed pending disposition of the appeal in the United States Court of Appeals for the Ninth Circuit and disposition” of a petition asking the justices to fully review this case. Hundreds of incarcerated people could become infected with a potentially deadly disease. And the Supreme Court won’t even tell us why. Welcome to the Court’s “shadow docket.” The term “shadow docket” was coined by University of Chicago law professor William Baude in an influential 2015 article. It refers to “a range of orders and summary decisions that defy [the Court’s] normal procedural regularity.” Often these orders are handed down without any explanation from the majority, or without much advance notice from the Court. Frequently they are handed down on Friday evenings, after at least some of the Supreme Court press corps are already a couple of beers into their weekends. Because shadow docket cases are often released without a majority opinion explaining the Court’s reasoning, they have less impact on legal doctrine than most ordinary decisions. Judges are bound by the Court’s majority opinions, but a lower court judge can’t follow an opinion that doesn’t exist. Nevertheless, the stakes in shadow docket cases — which often arise after a party files an emergency request asking the Court to block a lower court order — can be enormous. The decision in Barnes endangers the health of thousands of inmates. Other shadow docket decisions concern billions of dollars. Or they can effectively lock thousands of immigrants out of the country. The ideological cast of the shadow docket, moreover, is even more conservative than the Court’s regular docket. Though the Court’s recent term featured several high-profile — though often very narrow — victories for liberals, the Court’s party-line decision to lift safeguards against spreading Covid-19 within a California jail is more typical of its shadow docket. The Trump administration has a particularly high win rate in shadow docket cases. And it knows it. It asks the Supreme Court to block lower court orders far more than any recent administration. The Court, meanwhile, has shifted an increasing share of its output to this often inscrutable shadow docket. In the past year, Justice Sonia Sotomayor has written several strongly worded dissents warning that her colleagues are bypassing safeguards intended to prevent the Court from handing down cursory, insufficiently thought-out decisions — and that they often do so to benefit the Trump administration. Her most recent dissent was in Barnes, the jail case. “The District Court found that, despite knowing the severe threat posed by COVID–19 and contrary to its own apparent policies, the Jail exposed its inmates to significant risks from a highly contagious and potentially deadly disease,” Sotomayor wrote. And yet the Supreme Court “intervenes, leaving to its own devices a jail that has misrepresented its actions to the District Court and failed to safeguard the health of the inmates in its care.” Perhaps there’s an explanation for why the Court’s Republican majority felt intervention was appropriate. But if there is one, they aren’t telling us. Because they are decided so quickly and often without explanation, moreover, shadow docket cases will tend to fly under the radar. But, with so much at stake in many of these cases, they deserve far more attention than they often receive. The Supreme Court’s normal process for hearing cases, explained Before we jump into the shadow docket, it’s helpful to understand how the Court ordinarily decides cases. The famous cases that you’ve most likely heard of — cases like Roe v. Wade and Brown v. Board of Education — reach the Court through a long, drawn-out process that privileges careful decision-making over speed. Because the Supreme Court has the final word on all questions of federal law, including interpretations of the Constitution, the Court’s ordinary procedures call for it to act with great care to avoid making mistakes. For starters, the justices are extraordinarily selective about which cases they hearthrough their ordinary docket. In a typical year, lawyers file 7,000 to 8,000 petitions for a writ of certiorari, the formal name for a petition asking the Supreme Court to give full review to a lower court’s order. The Court typically grants fewer than 80 of these “cert” petitions. Once such a petition is granted, the justices spend months pondering the case. Lawyers on either side of the dispute file lengthy briefs and voluminous collections of documents culled from the case’s overall record. In the most high-profile cases, dozens of amicus briefs may be filed on either side of the case as well — leaving the justices and their law clerks with hundreds or even thousands of pages of legal arguments to ponder before reaching a decision. And all of this typically happens after the case has already received considerable attention from lower court judges. The Supreme Court’s rules warn lawyers that, unless their case presents an unusually “important question of federal law” that demands the justices’ attention, the Court rarely grants cert petitions unless necessary to resolve a disagreement between two federal courts of appeals, two state supreme courts, or a federal court of appeal and a state supreme court. Thus, by the time the justices hear a case, the legal question presented by that case has typically been pondered by many lower court judges, and judges who disagree about the proper answer to that question have written their own opinions that the justices can rely on in thinking through the case themselves. As Peter Margulies, a law professor at Roger Williams University, told me, the “usual view” among judicial experts is that “you want that kind of percolation effect.” When there are “more eyeballs” on a legal question before it reaches the justices, the Supreme Court benefits from “more viewpoints,” and that tends to lead to better decisions. There’s also a very good reason the Supreme Court ordinarily moves so slowly, and typically spends so much time thinking about cases before handing down an opinion. There is no higher court that can correct the Supreme Court’s errors, so if the justices botch a case, that decision could linger forever. It will bind all future judges who are confronted with similar cases, and can only be overruled by a subsequent Supreme Court decision. Shadow docket cases receive little of the careful deliberation that goes into the ordinary docket Which brings us to the Court’s shadow docket. Unlike cases on the Court’s regular docket, shadow docket cases receive very limited briefings and are rarely, if ever, argued before the justices. Though the justices will often discuss these cases among themselves, they frequently do so on an extraordinarily compressed schedule — leaving far less time for reasoned debate. That’s often true because shadow docket casesfrequently arise from emergency requests asking the Court to grant swift and immediate relief, meaning that the justices will only spend days or even hours pondering how to rule on such a request. Because many of these cases are resolved in brief orders and without a written opinion explaining the majority’s reasoning,shadow docket cases often have less impact on legal doctrine than cases on the ordinary docket. Lower court judges are bound by the reasoning memorialized in the Supreme Court’s majority opinions, but they can’t be bound by an opinion that doesn’t exist. The Court does sometimes hand down majority opinions when it resolves cases on its shadow docket. To date, for example, the Court’s only majority opinion governing the rights of voters who are afraid of contracting Covid-19 if they go to the polls is Republican National Committee v. Democratic National Committee(2020). That decision, which effectively required Wisconsin to toss out many ballots cast in its election last April, was decided just two days after the GOP requested an emergency order from the Supreme Court. “It’s hard to imagine that [the justices] have the same deliberation or time to think about the varying arguments by each party” in many shadow docket cases, according to Shoba Sivaprasad Wadhia, a professor and associate dean at Penn State Law. Yet when the Court hands down a majority opinion in a shadow docket case, lower court judges still must obey that decision. When the justices in the majority do not explain their reasoning, a different but also troubling problem arises. There’s a common phrase within the judiciary. When a judge initially thinks a case should come down one way, but then they start writing their opinion and realize they can’t come up with a legally sound argument justifying that outcome, they say that the opinion “won’t write.” The ordinary requirement that judges explain their decisions in reasoned opinions can be a tremendous check on judicial power. It discourages those judges from ruling in arbitrary ways. As Margulies told me, “there are some opinions that just aren’t going to work out” once a justice has taken sufficient time to reason through how to decide the case. But if the Supreme Court pushes too many of its decisions onto its shadow docket, the justices in the majority may never figure out that their first instinct regarding how to decide a case was flawed. Cases on the Court’s ordinary docket, moreover, receive a great deal of public scrutiny. Consider, for example, June Medical Services v. Russo, an abortion decision the Court handed down in June. Vox covered the Court’s decision to hear this case, its oral argument in this case, and its ultimate decision to strike down a Louisiana anti-abortion law as separate and important news events — and that sort of coverage is typical of outlets that cover the Supreme Court. We also probed the history of June Medical and similar cases. We reported on the political fallout from the Court’s decision. And that’s just a small fraction of our coverage of this highly newsworthy case. Shadow docket cases, by contrast, almost never receive this kind of attention. How could they when they are often decided so quickly that even many veteran Supreme Court journalists do not realize the Court is considering an important case until after a decision is handed down? For many of these reasons, the Supreme Court has historically applied a strong presumption against second-guessing lower court judges when a case arrives on the Court’s shadow docket. As Justice Sotomayor wrote in a dissenting opinion in Wolf v. Cook County, one of several recent decisions where she criticized her colleagues for being too eager to stay lower court opinions, “stay applications force the Court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument.” A Supreme Court order blocking a lower court decision has historically been considered an “extraordinary” event, Sotomayor explained. But they’ve become increasingly common in the Trump years. Since the Court’s most recent term began last October, the justices have handed down at least 10 emergency orders decided by a 5-4 vote. Eight of these shadow docket cases granted full or partial relief to a party seeking to curtail a lower court order. The Court’s shadow docket decisions often have severe consequences for the most vulnerable communities The Court’s decision to, again borrowing from Sotomayor’s words, lift public health restrictions on a jail that “recently reported 15 new cases of COVID– 19 in a single week” is fairly typical of its recent shadow docket decisions. Though liberals sometimes prevail in these cases, the Court’s shadow docket cases far more frequently benefit conservative litigants and conservative causes, at least when the justices divide on the proper outcome. Of the 10 cases mentioned above, eight were decided along party lines with the Republican justices in the majority.And these decisions benefit conservatives at the expense of some of the most vulnerable communities subject to the Court’s jurisdiction. Republican National Committee, for example, forced many Wisconsin voters to make a devilish choice — give up their right to vote or risk becoming infected with a potentially deadly disease. The Court’s decision in Dunn v. Ray (2019) ruled that an Islamic death row inmate could not have his spiritual adviser present at his execution, even though the prison permitted Christian inmates to have a minister present to say last rites. And then there are the Court’s immigration decisions, where the Court has repeatedly blocked lower court decisions protecting immigrants in cases that arose on its shadow docket. Among other things, the Court’s shadow docket cases reinstated a Trump administration policy restricting low-income immigrants’ ability to enter the United States. They permitted Trump to spend billions to build a border wall. And they reinstated a policy that makes it so difficult for victims of persecution to seek asylum in the United States that, according to Lee Gelernt of the American Civil Liberties Union’s Immigrants’ Rights Project, that policy has the effect of “virtually ending asylum at one shot.” “When the Supreme Court acts to stay an injunction by the lower courts,” Wadhia told me, “it’s often at the expense of vulnerable people and, in this case, immigrants.” Prior to the Trump administration, the Justice Department typically understood that the justices viewed a Supreme Court stay of a lower court order as an extraordinary form of relief, and it rarely applied for such relief as a result. According to a November 2019 paper by University of Texas law professor Stephen Vladeck, “during the sixteen years of the George W. Bush and Obama Administrations, the Solicitor General filed a total of eight such applications — averaging one every other Term.” By contrast, “in less than three years, [Trump’s] Solicitor General has filed at least twenty-one applications for stays in the Supreme Court (including ten during the October 2018 Term alone).” The Supreme Court, meanwhile, has rewarded the Trump Justice Department’s behavior. Vladeck finds that the Trump administration achieved a full or partial victory in about two-thirds of cases where it seeks to temporarily block a lower court opinion. What was once extraordinary is now quite ordinary. The Trump administration, for what it’s worth, often argues that Supreme Court intervention is necessary because individual trial judges have handed down an unusual number of nationwide injunctions — orders blocking a federal policy throughout the entire country — since Trump became president. And there are good reasons to be cautious about such injunctions. If Joe Biden is president next year, many Republican judges could try to halt literally any action taken by the new administration. But according to Gelernt, there’s a good reason why lower courts have so frequently blocked Trump’s immigration policies — and why litigators often feel compelled to seek such relief. “The reason why there have been more national injunctions in the immigration area,” he told me, “is because the Trump administration has enacted so many policies that harm so many people immediately, leaving no choice but to seek immediate national relief.” It remains to be seen whether the Court will be equally zealous in policing lower court injunctions once Democrats control the elected branches of government. For the moment, however, it is hard to escape the impression that the Court is reaching out to do favors for the Trump administration, even if doing so means ignoring rules intended to prevent the Court from deciding cases too rashly. As Sotomayor wrote in her Wolf dissent, the Court’s “has been all too quick to grant the Government’s ‘reflexiv[e]’ requests,” at least when those requests come from Trump’s lawyers. Support Vox’s explanatory journalism Every day at Vox, we aim to answer your most important questions and provide you, and our audience around the world, with information that has the power to save lives. Our mission has never been more vital than it is in this moment: to empower you through understanding. Vox’s work is reaching more people than ever, but our distinctive brand of explanatory journalism takes resources — particularly during a pandemic and an economic downturn. Your financial contribution will not constitute a donation, but it will enable our staff to continue to offer free articles, videos, and podcasts at the quality and volume that this moment requires. Please consider making a contribution to Vox today.
'What an utterly terrible idea': Historian reacts to Trump
Douglas Brinkley, presidential historian and professor, reacts to President Donald Trump saying he will deliver his convention speech accepting the Republican presidential nomination from either the site of the 1863 Battle of Gettysburg in Pennsylvania or the White House in Washington, DC.
Who Won the Great Trump Diplomatic Game?
The joke, a throwaway quip, somehow captured the man and the moment—the end of one era, and the beginning of another. It was January 2017, and then–British Prime Minister Theresa May was in the White House, the first foreign leader to visit the new president of the United States, Donald Trump. For May, the trip had gone well: Pleasantries had been exchanged, faux pas avoided, commitments to NATO and the special relationship gleaned. Then came the press conference.“Mr. President,” the BBC’s Laura Kuenssberg, called on by May, began, “you’ve said before that torture works; you’ve praised Russia; you’ve said you want to ban some Muslims from coming to America; you’ve suggested there should be punishment for abortion. For many people in Britain, those sound like alarming beliefs. What do you say to our viewers at home who are worried about some of your views and are worried about you becoming the leader of the free world?” A momentary silence followed. Smiling, Trump turned to his guest: “This was your choice of a question?” The room burst into laughter. Then came the punch line: “There goes that relationship.”Trump’s remark may have been lighthearted, but it was also revealing: Here was a man who did not behave like a normal politician. He was unpredictable, uncontrollable, wild, and sometimes, yes, even funny. And yet he had an unmistakable streak of malice. Given the chance to ad-lib, Trump had joked that all it took was a tough question and the special relationship was off. It was funny because it pierced the tension in the room, but also because there was a ring of truth to it.Every world leader since has faced the same problem: How do you handle a man like Trump? Britain, with its special relationship and deep connections to the U.S., seemed particularly well suited to the game at hand, given the new president’s support for Brexit and his familial connection to Scotland through his mother. Yet the story of his presidency has been one of British diplomatic failure, not success. Years of directionless prevaricating in London were compounded by a turgid, inflexible, and unimaginative diplomatic effort in Washington. The result: Britain has achieved little of substance—whether on trade, Iran, the climate, or Russia.Since May’s visit, Britain’s influence in Washington has slumped. But a few countries have made significant diplomatic gains over the course of the Trump presidency—Israel, Saudi Arabia, India, and North Korea among them—by working with the president, his family, and friends in ways the European powers have not.[Read: The pandemic’s geopolitical aftershocks are coming]To understand who played the Great Trump Game well and what lessons can be drawn from their success, we spoke with more than a dozen current and former diplomats and officials in the U.S. and abroad, some who are still serving, others retired. Many of those we interviewed have worked directly with Trump and his administration, and the majority asked for anonymity in order to speak candidly. We also spoke with foreign-policy analysts, politicians, and political aides on both sides of the Atlantic to understand the long-term implications of Trump’s time in office. While the picture that emerges is a patchwork quilt of seemingly random American diplomatic achievements and failures, at least one clear pattern can be discerned: Hard men—they were all men—and dictators with deals to strike did well; Europeans who rely on history, democratic traditions, values, and strategic alliances did badly.To get ahead in Trump’s Washington, the lesson for other countries’ leaders and diplomats is clear: You need to have something to sell and the connections to sell it.Israel’s Benjamin Netanyahu had a direct line to the president and used it—Trump’s decision to move the American embassy to Jerusalem was a major victory. Saudi Arabia has similarly close ties to the Trump family through the president’s son-in-law and do-it-all adviser Jared Kushner and reaped the rewards, despite being caught decapitating and dismembering a Washington Post journalist. India has been “masterful” in its diplomatic strategy, according to one admiring diplomat, culminating in Narendra Modi’s trip to Texas last year and Trump’s state visit to Delhi in February. Turkey emerged with significant geopolitical gains in Syria, while North Korea has won previously undreamed-of status without giving away anything in return.Of America’s obvious adversaries, Russia remains the conundrum through its inexplicable hold over Trump. Russian President Vladimir Putin has managed to win favor without the fawning demanded of other states. And the only real strategic rival to U.S. hegemony—China—has suffered relentless criticism from the Republican Party, and at times become a lightning rod for the president’s animosity, but has continued to rise nonetheless.The problem for old American allies such as Britain, France, Germany, and even Australia, according to those who have worked closely with Trump, is that the president sees international relations as a series of business deals in which there are winners and losers. In his world, strategy, alliances, and values mean little.One former White House official told The Atlantic that Trump’s weakness is that his only yardstick is money. “Part of the reason for that is he’s absolutely, totally unaware of history,” this former official said, speaking on condition of anonymity to candidly relate private deliberations. “He doesn’t know, for example, why the Korean War happened, why there was an armistice.” Privately, the former official continued, Trump would question what had happened in the two world wars and why the U.S. military maintained permanent bases in Europe.[Read: How did we get here?]“He doesn’t have a strategic vision at all. If it’s anything, it’s to have other countries pay—plus 50 percent.” According to the former official, Trump sees in autocratic leaders such as Putin, Turkey’s Recep Tayyip Erdogan, and China’s Xi Jinping—as Trump would put it—“killer business guys like me.”In the Trump storm, the structures of American power, such as the professional foreign-policy apparatus, have been blown away. In their place, personality, politics, family, and money have come to the fore. “What Trump basically did was emasculate the rest of the diplomatic corps and all the elements of the U.S. government, so that everybody has to talk to Trump if they really want to know what’s going to happen,” Victor Cha, a Georgetown University professor and former national-security official under President George W. Bush, told us in an interview.. Some countries have thrived in this environment; many others have had to make do with surviving.Among those that managed to succeed, a pattern largely holds: You need an autocratic leader, a close connection to the Trump family, or a deal the president can hail as a victory. Ideally, you have all three. Perhaps the best example of this is Saudi Arabia. “The Saudis are doing business with us the way people do business with the Saudis,” Richard Haass, the president of the Council on Foreign Relations and an official in the Reagan and both Bush administrations, told us. “They’re saying, ‘Okay, the United States has become like us. It’s being run by a family. So we will deal with the family.’”Trump was an early fan of Saudi Arabia. He made Riyadh his first foreign stop as president and his hosts pampered him, projecting a five-story image of him onto the hotel where he stayed and presenting him with a gold medallion that is the country’s highest civilian honor. Not even the killing of the journalist Jamal Khashoggi was enough to deter a president focused on future deals. By then, Kushner was already close to the de facto Saudi ruler, Crown Prince Mohammed bin Salman. And in a statement largely absolving the Saudis of the Khashoggi killing, Trump explicitly referenced the $450 billion the kingdom had “agreed to spend and invest” in the U.S., including a sum on military equipment. Autocracy. Familial ties. Business deals.For Israel, too, an early bet on Trump has paid off. “Once it became clear that the Palestinian issue was going to be run out of the White House and the secretary of state would have nothing to do with it, [Netanyahu], who already had a relationship with Jared, essentially works the White House,” said Haass, author of The World: A Brief Introduction, published this year. “It’s the deinstitutionalization of foreign policy. That’s what we’re seeing here.”Israel is by no measure an autocracy, yet it meets the other two criteria—family ties and dealmaking: Netanyahu is an old friend of the Kushner family, who once slept in Kushner’s bedroom during a visit to New Jersey (leaving Jared to sleep in the basement). The Israeli leader also succeeded in persuading Trump to move the American embassy, and indulged Trump’s futile effort to strike “the deal of the century”—a Middle East peace plan. After its release in January, the proposal was immediately rejected by Palestinian leaders who saw it as too favorable to Israel, and since then it has mostly been ignored.[Read: Why America resists learning from other countries]Cha told us that world leaders who had done well for their country in the Trump era had discovered that some combination of these attributes was ripe for potential rewards, and many had arrived at the same strategy: Dress up your own national agenda as Trump’s and give the president all the credit for what you wanted in the first place. The Japanese, South Koreans, and North Koreans have been particularly adept at this game, Cha said. (The notable exception to this trend is Mexico, which has consistently found itself under attack from the White House, but did not pay for a wall it didn’t want, and whose president had a largely controversy-free visit to Washington in July.)A second former senior White House official said the importance of personal connections to the president was perhaps the key difference between prior administrations and Trump’s. “The Emiratis, the Saudis, and particularly the Israelis were very adept at cultivating those relationships,” this former official said. “The joke is that the U.S. ambassador to Israel doesn’t have a role, because the prime minister can go directly to Washington for everything.”In Washington, the extent to which Trump’s family inserted itself into foreign policy was a source of frustration to former Secretary of State Rex Tillerson and others. Tillerson once entered a restaurant in Washington, D.C., and the proprietor came over to tell him that his Mexican counterpart, Luis Videgaray, was also dining there. When Tillerson walked over to say hello, he found Kushner sitting at the same table. “I could see the color go out of” Videgaray’s face, Tillerson told the House Foreign Affairs Committee. “As it turned out later,” Tillerson continued, “the foreign secretary was operating on the assumption that everything he was talking to Mr. Kushner about had been run through the State Department and that I was fully on board with it. And he was rather shocked to find out that when he started telling me all these things that were news to me, I told him, ‘This is the first time I’m hearing of it.’” The first former White House official, meanwhile, recalled a meeting in Buenos Aires in 2018, during which Trump told Xi that Kushner would be involved in trade negotiations between the two countries. “I tell you,” this ex-official said, “they (the Chinese) brightened up, because they knew they could work him.”Over the course of this presidency, many foreign capitals appear to have realized how dependent they were on the whims of Trump’s temper or their ability to work family networks, and thus have sought strategies to hedge their bets with other centers of American power and influence, principally Congress. U.S. Senator Chris Coons, a Democrat from Delaware who serves on the Foreign Relations Committee, told us in an interview that he had been getting lots of attention and requests for meetings in the Trump era. “It’s been a remarkable three years, and the list is long of ambassadors trying to get in to see me and have conversations to try to move the needle,” Coons said. “They’re looking for stability and reassurance in these relationships that have gone on for decades and are foundational to our security and prosperity.”Precisely that kind of decades-long foundational relationship is what European allies had long depended on, and the reliance on those strategic ties appears to have been their undoing during this administration. None of Europe’s biggest countries had expected a Trump victory. The second ex–White House official said that, more than most, Britain, France, and Germany had sought to intensify their efforts with Congress because of the limited headway they were making with Trump, particularly in preserving the Iranian nuclear deal and avoiding the imposition of tariffs. Congress was the only avenue left because making progress with the Trump administration was so difficult, Cha told us.[Read: Putin is well on his way to stealing the next election]The problem for traditional U.S. allies—Britain, France, and Germany, but also Japan and Australia—is that, unlike the quick hit of a diplomatic breakthrough with Trump, building support in Congress is slow.For European powers, the trials and tribulations of the Trump era offer a salutary lesson in international relations: National interest remains king.While Trump has been explicit in this transactional view, showing little interest in notions of shared values or enduring alliances forged after the Second World War, in many respects his outlook is just a more extreme (and, so far, glaringly unsuccessful) version of that pursued by all U.S. presidents.Even at the height of the Anglo-American alliance during the Second World War, Franklin Roosevelt coldly pursued American national interest in the struggle against Nazi Germany. Roosevelt’s successor, Harry Truman, quickly sidelined Britain after the war to deal directly with Moscow, reflecting the new reality of the world. Soon after, Dwight Eisenhower, the hero of D-Day, left Britain in the lurch in Suez in 1956, before John F. Kennedy canceled a missile program seen as vital to Britain’s national security, leading to vitriolic British headlines about the president’s Irish heritage. Those would find an unlikely echo almost six decades later when Boris Johnson, then not yet prime minister, accused Barack Obama of harboring an ancestral dislike for Britain because of his Kenyan father. Today, in British diplomatic circles, the changing demographic makeup of the U.S. is cited as a challenge, as the old elite ties that once bound Washington and London have been replaced by a more diverse America’s new connections to Latin America, Asia, and elsewhere.For Britain, though, such concerns are little more than a fig leaf to cover underlying tensions. As early as 1950, U.S. Secretary of State Dean Acheson, whose father was English, ordered officials to stop talking about a “special relationship” with Britain, arguing the term gave the false impression that it trumped other alliances. This is not, then, the first time that Britain’s influence in Washington—indeed, like any other state—has rested on its own short-term strength and usefulness. Ties at the highest level improved when Tony Blair stood alongside Bush during the invasions of Iraq and Afghanistan, whereas in the two decades since, Britain’s willingness to engage on the world stage (and thus its usefulness) has deteriorated.Trump’s bellicosity may have spooked European states, including Britain, whose security is dependent on American goodwill and support, but according to those we spoke with, the past three years have only emphasized the structural problem Europe’s premier powers already faced. Ultimately, these countries cannot expect to continue wielding special influence in Washington if they do not offer special benefits to the U.S. in return. And on this score, Europe’s worth to Washington has been deteriorating as the principal strategic threat to American interests moves away from Europe’s borders to the South China Sea. No talk about history, kinship, shared values, or the rules-based international order can hide this reality.[Read: How should Biden handle China?]One British official said a number of core diplomatic challenges for London would continue beyond 2020, whatever happened in the presidential election. Unless the country addresses its shrinking military capacity and its perceived unreliability as a foreign-policy and security partner, Britain’s influence will continue to suffer. The official said Britain needs to be more assertive about what it brings to the table, and to acknowledge that it remains overwhelmingly in Britain’s national interest for the U.S. to remain the preeminent global power—not China. But to begin with, this official said, London needs to be honest about the damage its military cuts have caused.The U.K.’s failures in the Trump era are symptomatic of a deeper malaise in its foreign policy, according to conversations with multiple influential British officials close to Johnson. In this view, Britain has struggled under Trump because its embassy has forgotten how to fight to be heard, and how to build a broad base of support in Congress and American society, while others such as India, Greece, Ireland, and Israel put great stock in their networks on the Hill and pulled ahead. The British embassy, we were told by two separate high-ranking and influential figures, has been too passive in its efforts for too long.Now overtaken, Britain faces the nightmare scenario of becoming associated with Trump, having desperately sought to win him over, in the eyes of a Democratic Party that may soon hold the keys to both the White House and Congress. As a result, Britain may soon find itself with an entirely new set of challenges, and the same set of core strategic weaknesses as before.European capitals, according to the first former White House official who spoke with us, have concluded that Trump is a “complete aberration.” The former official continued: “They’re saying, ‘This is a one-off. There’s not another man on the planet like this guy.’ Consequently, when he leaves office, the Americans will rebuild these relationships.”That may well be the case if Trump were to lose his bid for reelection in November, but what if he prevails? “He’s done damage,” John Bolton, Trump’s former national security adviser who was ousted last year and went on to release a tell-all book, told us. “After one term, the damage can be repaired fairly easily. What bothers me is the risk of a second term, where I think the damage may not be so easily repaired. And that could cause lasting harm, which is one reason I’m not going to vote for him in November.”Still, whether in 2020 or 2024, Trump will leave office at some point, and American foreign-policy making will continue. The Washington game is much longer than the presidency of one man. “Personal relationships are important,” Antony Blinken, a senior foreign-policy adviser to the Biden campaign and a former foreign-policy official in the Obama administration, said, “but if they’re the sum and substance of your foreign policy, you’re going to have a problem.”For the past three years, leaders, ambassadors, and kings have competed in the Great Trump Game for influence and favor. Deals have been made, egos burned, reputations burnished, careers trashed. Yet the underlying reality is that Trump did not change the nature of the game itself. In his pantomime mendacity, he managed to reveal what had been shrouded in politeness before: British weakness, European incoherence, and Chinese power. The president might have created new ways of winning and losing, but in the end he did not build a new world—he exposed the nature of the one that already existed.
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The legal questions surrounding Trump’s new executive orders, answered
President Donald Trump speaks during a news conference at the White House on August 10. | Alex Wong/Getty Images Trump’s actions appear largely legal. They just won’t accomplish very much. On Saturday, President Donald Trump signed four memorandums and executive orders that, he claimed, would provide relief to Americans struggling financially during the Covid-19 pandemic. One order purports to provide enhanced unemployment benefits to some Americans — although on less generous terms than the recently expired benefits provided by the CARES Act. A second defers payment of payroll taxes. A third directs several federal agencies to take vague, unspecified actions regarding evictions and foreclosures. And a fourth defers payments on federal student loans. Trump’s four executive actions come after negotiations over a new pandemic relief bill to replace the CARES Act appear to have stalemated. Though House Democrats passed a $3 trillion replacement for the CARES Act in May, Republicans did not present their $1 trillion counteroffer until late July — just days before key provisions of the CARES Act expired. The Republican proposal was also larded with poison pills, such as a bill that would immunize most businesses from coronavirus-related lawsuits, that earned swift rebukes from Democratic leaders. Not long after Trump signed the four executive actions, a bipartisan mix of lawmakers denounced them for attempting to steal away Congress’s power to set the nation’s fiscal policy. Sen. Ben Sasse (R-NE) called Trump’s actions “unconstitutional slop.” House Speaker Nancy Pelosi told CNN that “as my constitutional advisers tell me, they’re absurdly unconstitutional.” But the reality is more nuanced. With one possible exception — there is a strong legal argument against Trump’s unemployment benefits order — Trump’s four actions are probably legal. The problem with these actions isn’t that they are likely to be blocked by a federal court, it’s that, with one exception, federal law places fairly rigid constraints on the president’s ability to provide pandemic relief. And Trump largely appears to be complying with those constraints. One measure may prove workable: the memorandum deferring payment of student loans. That memo appears to be lawful, and is likely to provide real relief to many borrowers. Otherwise, there is less to Trump’s actions than the president would like voters to believe. It’s far from clear whether anyone will receive enhanced unemployment benefits, due to the many legal constraints on those benefits. And even if those benefits are paid, they will be paid out of a limited pool of funds that will run out of money quickly. Similarly, while Trump deferred payments of some taxes, he can’t relieve taxpayers of their obligation to eventually pay those taxes. For this reason, according to University of Chicago tax law professor Daniel Hemel, “many employers will continue to withhold Social Security taxes from paychecks lest they be on the hook for the $$$ next year.” Trump’s actions, in other words, appear largely legal. They just won’t accomplish very much. Trump’s new policy onunemployment benefits has many problems, only one of which is that itmay be illegal Of the four executive actions Trump signed, the one that likely crosses the line in terms of legality concerns unemployment benefits. On the surface, Trump’s unemployment benefits memo seems to restore some of the benefits lost when the CARES Act expired at the end of July. Under the CARES Act, people collecting unemployment benefits received $600 in federal funds weekly in addition to the other benefits they were entitled to receive every week. Trump’s memo calls for $400 of these enhanced benefits to be restored to some unemployed people — although not for the poorest recipients of unemployment benefits. But it’s far from clear that Trump has statutory authority to make these payments. And even if he does, Trump’s power to do so is so limited that it is far from clear who, if anyone, will receive the $400 in weekly benefits and how long those benefits will last. For the unemployment insurance memorandum, Trump relies on a provision of the Robert T. Stafford Disaster Relief and Emergency Assistance Act that permits the president to “provide financial assistance” to victims of a major disaster, such as a pandemic, to help “address personal property, transportation, and other necessary expenses or serious needs resulting from the major disaster.” The memorandum directs “up to $44 billion” in disaster relief funds to be spent to provide most unemployed people with $300 — not the full $400 the memo seeks to provide to unemployed people — in federal benefits a week. Why only $300? Because federal regulations provide that the federal share of such disaster relief “shall be 75 percent.” The remaining quarter of the relief funds “shall be paid from funds made available by the State.” So, if Trump wants individuals to receive $400 a week, $100 of that money must come from the states. That’s a serious problem, given the tremendous fiscal burden the pandemic has imposed on state governments. According to a July paper by the Center on Budget and Policy Priorities’ Elizabeth McNichol and Michael Leachman, “the state budget shortfalls expected from COVID-19’s economic fallout will total a cumulative $555 billion over state fiscal years 2020-2022.” States, moreover, have far less power to borrow funds during lean economic times than the federal government. At least 40 states require a balanced budget, meaning that deficit spending is simply off the table. It’s far from clear that any of these states will be able to find the money to pay an additional $100 a week in unemployment benefits even if they want to. Bear in mind, as well, that Trump’s memo only calls for $44 billion to be spent on unemployment benefits. As Georgetown University law and economics professor David Super writes, “with roughly 25 million people receiving unemployment benefits, the $300 federal share of the new weekly benefit would last about six weeks, or until mid-September.” At that point, unemployed people would be in the same boat they’re in now. The $44 billion could last longer, of course — if many states do not participate in this program. Super also points to another problem with Trump’s memo — it may be illegal. Although one provision of the Stafford Act allows the president to “provide financial assistance” to disaster victims with relatively few restrictions, a separate provision only permits the president to provide benefits to the unemployed that do “not exceed the maximum weekly amount authorized under the unemployment compensation law of the State in which the disaster occurred.” But the whole point of the enhanced unemployment benefits is to provide additional funding on top of the amount authorized by state law. Super argues that this provision dealing specifically with unemployment benefits trumps the more general provision allowing the president to “provide financial assistance” more broadly. Often, when two different statutory provisions are in tension with each other, courts hold that the more specific provision supersedes the more general provision. But even if Trump does have the statutory authority to provide enhanced unemployment benefits, those benefits will be short-lived and likely will not be available in many states — if they are available at all. Trump’s tax memorandum appears legal, but unlikely to accomplish much Trump’s second memorandum purports to defer collection of payroll taxes, that fund Social Security and Medicare, for workers earning less than about $100,000 a year. This memo is probably legal. The Treasury Secretary does have the power to delay collection of certain taxes for victims of federally declared disasters, and Trump is the Treasury Secretary’s boss. But, while the Trump administration may delay collection of certain taxes, such a delay is unlikely to accomplish much. It’s likely that most workers will never see the impact of this policy on their paychecks. Delaying tax payments makes sense in certain circumstances. Suppose that a tornado wipes out much of a town and leaves local businesses without electricity for weeks. A federal order delaying collection of taxes will allow those businesses to rebuild, and to figure out how to operate in the middle of a disaster, without also facing the additional burden of setting aside money to pay for federal taxes. But the law Trump relies on in his memo only allows the federal government to delay payments for up to a year. It doesn’t relieve taxpayers of their obligation to pay those taxes eventually. Under normal circumstances, federal law requires employers to deduct a percentage of each of their employees’ wages in order to cover various federal taxes, and to pay this money to the IRS. The penalties for failing to do so are quite high. An employer that is just one day late in paying such taxes can be required to pay 2 percent of the unpaid tax as a penalty. After 16 days, this penalty rises to 10 percent. And an employer who “willfully” evades its obligation to withhold money from their employees and provide that money to the government could potentially be liable for 100 percent of the money their workers owe. Trump’s memo effectively lifts these penalties for as long as it is in effect, but it cannot do so forever. And employers who do not withhold payroll taxes from their workers are likely to be in for a nasty surprise when the tax bill comes due. Think of it this way. Imagine that I owe $3,000 this year in payroll taxes on my Vox Media salary. Ordinarily, Vox will withhold that money from my paycheck and remit it to the IRS. Under Trump’s memo, Vox could decide not to withhold that money. But Vox is still going to owe it eventually. And, when that obligation does come due, Vox could still be subject to penalties if it doesn’t turn over the $3,000 it owes to the government right away. As Hemel, the tax law professor, told me, the IRS has not yet issued guidance on what happens to employers who fail to pay once Trump’s memo expires. But he emphasized that federal law only allows the Treasury to delay payments for up to one year. Accordingly, said Hemel, if the memo expires on August 10, 2021, then “on August 11, 2021, the penalty is the same that it would have been on August 11, 2020.” Vox will need to turn over the $3,000 it owes the IRS once the memo expires, or face penalties. There are other complications. Where is Vox Media going to find the money to make those future payments if they haven’t been withholding it from my paycheck? Will it order me — and all of its other impacted employees — to give back the money that we’ve already been paid? And what if we’ve already spent that money? Does that mean that my future paychecks get docked to cover the deferred tax bill? Trump, for what it’s worth, says that he’ll make this temporary deferral of payroll taxes permanent if he wins the 2020 election. But he’s down in the polls. And a permanent tax holiday would require an act of Congress — something that Congress is far from certain to support even if Republicans hold onto power. Payroll taxes, after all, fund Social Security and Medicare. Cutting those taxes potentially endanger those two popular programs. Many employers, in other words, are likely to continue withholding payroll taxes even if they are temporarily not required to do so. Why risk being unable to make mandatory tax payments when Trump’s memo is no longer in effect? Trump’s executive order on housing is basically useless The CARES Act included a 120-day moratorium on evictions, but that moratorium expired on July 24. On Saturday, Trump signed an executive order claiming that his administration will “take all lawful measures to prevent residential evictions and foreclosures resulting from financial hardships caused by COVID-19.” But the executive order itself doesn’t actually do anything, at least not on its own. It requires the secretary of the Treasury and the secretary of Housing and Urban Development to “identify any and all available Federal funds to provide temporary financial assistance to renters and homeowners who, as a result of the financial hardships caused by COVID-19, are struggling to meet their monthly rental or mortgage obligations.” And it requires HUD to “take action, as appropriate and consistent with applicable law, to promote the ability of renters and homeowners to avoid eviction or foreclosure resulting from financial hardships caused by COVID-19.” The order, in other words, instructs various agencies to look for ways to help out renters and homeowners who are struggling to meet their financial obligations. Maybe those agencies will find something. But the executive order itself doesn’t provide any assistance to anyone. Trump’s final executive order does provide real relief to people with student debt Trump’s final memorandum instructs the Education Department to temporarily suspend payments and interest “on student loans held by the Department of Education until December 31, 2020.” This relief is real, and it also appears to be lawful. That’s because of a provision of federal law that permits the Education Department to suspend such payments for up to three years for borrowers who have “experienced or will experience an economic hardship.” So the relief for borrowers is likely to be significant — although individual borrowers should probably wait and see how the Education Department actually implements this memo before celebrating. But people with student loans are likely to be the only people who see much relief from Trump’s executive actions. For the most part, the problem with those actions isn’t that they are illegal. It’s that the legal constraints on Trump’s actions prevent them from doing much. Support Vox’s explanatory journalism Every day at Vox, we aim to answer your most important questions and provide you, and our audience around the world, with information that has the power to save lives. Our mission has never been more vital than it is in this moment: to empower you through understanding. Vox’s work is reaching more people than ever, but our distinctive brand of explanatory journalism takes resources — particularly during a pandemic and an economic downturn. Your financial contribution will not constitute a donation, but it will enable our staff to continue to offer free articles, videos, and podcasts at the quality and volume that this moment requires. Please consider making a contribution to Vox today.
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