Month: September 2024

Russia, which has the world’s most powerful nuclear arsenal, is emphasizing even further growth of its atomic weaponry.

According to Moscow’s semi-official news outlet RT “Russia will upgrade its nuclear arsenal as it is a primary guarantor of national security… President Vladimir Putin… revealed. We plan to further develop the nuclear triad as a guarantee of strategic deterrence and to preserve the balance of power in the world.”

Putin is also considering a revision to his announced doctrine to the doctrine that Russia’s nuclear doctrine that such weapons can only be used in the face of a threat to Russia’s sovereignty and territorial integrity” 

According to the Office of the U.S. Director of National Intelligence “Russia will continue to modernize its nuclear weapons capabilities and maintains the largest and most diverse nuclear weapons stockpile. Moscow views its nuclear capabilities as necessary for maintaining deterrence and achieving its goals in a potential conflict against the United States and NATO, and it sees this as the ultimate guarantor of the Russian Federation. Russia’s inability to achieve quick and decisive battlefield wins, coupled with Ukrainian strikes within Russia, continues to drive concerns that Putin might use nuclear weapons. In 2023, Putin publicly touted his willingness to move nuclear weapons to Belarus in response to a longstanding request from Minsk. Moscow will continue to develop long-range nuclear-capable missiles and underwater delivery systems meant to penetrate or bypass U.S. missile defenses. Russia is expanding and modernizing its large and diverse set of nonstrategic systems, which are capable of delivering nuclear or conventional warheads, because Moscow believes such systems offer options to deter adversaries, control the escalation of potential hostilities, and counter U.S. and Allied conventional forces.”

The Arms Control Center reports that in 2023, Putin suspended it participation in the New Start nuclear treaty. According to the organization, this “merely confirmed what was already Russian policy… The United States determined that Russia was not in compliance with the treaty in January 2023. A State Department Spokesperson explained, Russia’s refusal to facilitate inspection activities prevents the United States from exercising important rights under the treaty and threatens the viability of US-Russian nuclear arms control.” In August 2022, the Kremlin blocked treaty-bound inspections visits to its facilities and in November 2022, Moscow postponed the treaty’s bilateral consultative commission.”

The anti-nuclear weapons organization ICAN (International Campaign to Abolish Nuclear Weapons)  notes that “The question is on everyone’s mind- will he or won’t he?  Will the taboo against nuclear use in war hold? … Since the invasion of Ukraine … Russian President Vladimir Putin has repeatedly violated international law.  No one wants to believe that nuclear weapons will be used, but as long as nuclear weapons exist, they can be used. That is what nuclear deterrence is based on- credibly threatening to mass murder civilians with nuclear weapons…”

The Center for Strategic and International Studies (CSIS) explains that “Nuclear threats have been part of Russia’s strategy in Ukraine since the invasion in February 2022. The Kremlin clearly perceives some benefit from this strategy. One reason might be deterrence and nuclear signaling. But another reason Russia continues to rely on nuclear saber-rattling is because it is getting away with it. These risky behaviors are essentially cost-free to Moscow and have drawn little-to-no response from the wider international community, aside from statements of opprobrium by the United States and some European states. Reducing nuclear risks will require more countries to confront Russian nuclear saber-rattling, such as the latest drills, and impose diplomatic or economic costs.”

One reason why Putin feels confident in rattling his nuclear saber may be the diminished state of the American nuclear deterrent in the face of extraordinary challenges. Last year, Sen. John Kennedy (R-La) in a published article, worried that “we no longer face just one threat.  Russia still maintains the world’s largest nuclear arsenal, but China’s nuclear stockpile is growing rapidly.  North Korea continues to threaten our allies with its collection of nuclear weapons.  And, thanks to the disastrous Iran nuclear deal, Iran is marching ever closer to developing nuclear weapons of its own. The United States must now counter nuclear superpowers in both China and Russia while also deterring the itchy trigger fingers of unstable dictators like Kim Jong Un and the Ayatollah in Iran.  We should be innovating and preparing our nuclear arsenal for this new global dynamic, but instead, our nuclear stockpile remains stuck in the Cold War. Simply put: America’s nuclear stockpile is old and shrinking.  And while modernizing our nuclear arsenal should be a top priority, our effort to restart nuclear weapon production has been riddled with delays and poor planning.  And we don’t have time to waste. The United States has not built a single nuclear warhead since the close of the Cold War.  Instead, we’ve focused on “life extension programs” to keep our old weapons operational by refurbishing them. “

Did anyone in Washington notice that China tested a nuclear capable long-range ICBM with a dummy warhead on September 25? It landed in the Pacific Ocean with no “notified” overflight announcement to nearby countries, although in Washington DOD said it had “some” notice from Beijing. Brent Sadler, a senior research fellow at the Heritage Foundation notes that China chose to launch at a time when international tensions are high not only in Europe and the Middle East but also across East Asia. The news gets worse. US lawmakers recently confirmed the CCP now has more ICBM launchers than the United States. This is a fivefold quicker increase than Washington predicted.  

Beijing has been preparing for war for a long time. As far back as 1980, a Chinese newspaper published a map of Asia with circles drawn to indicate the countries within the target area of its launch of a DF-5 missile. They included the Solomon Islands, Fiji, Nauru, the Gilbert Islands, Tuvalu, western Samoa, and the New Hebrides. One member of the intelligence community active in the region recently commented, “We should have been seeing the lights flashing red, but we continue to ignore them.” ICBM’s have a range of over 3,500 miles. China’s missiles can strike targets almost anywhere in the world. Beijing’s DF-41, its longest-range missile, can travel an estimated 9,300 miles. San Francisco is 6,100 miles from Shanghai.

Washington must not be misled by suggestions that this week’s ICBM launch is simply a normal event, according to numerous members of the intelligence community. Sadler points out that China frequently tests fractional orbital bombardment missile systems, including a recent launch in July 2021. Beijing’s trajectory is not one of peace. It is not deterred by the West. It is accelerating and expanding its military readiness and technological capabilities to launch a war in the Pacific. Jeffrey Lewis, a missile expert at the James Martin Center for Nonproliferation Studies at the Middlebury Institute of International Studies says “We’re entering a new age… where the United States and China are engulfed in what feels like an arms race… It is a China that does not feel constrained… and [they are] demonstrating to others they work.”

Taiwan’s President, William Lai, continues to warn about China’s ambition for global hegemony after the recent test. A spokesperson for the Australian government stated that “The launch comes in the context of China’s rapid military build-up, which is taking place without the transparency and reassurance that the region looks for from great powers… [It] is destabilizing and raises the risk of miscalculation in the region….” In Japan, the reaction was similar with a government spokesperson at a press conference noting Tokyo had “no advance notice.” This comes after China increased its military presence around Japan during the last month and, in an unprecedented move, breached Japanese air space using one of its military aircraft.

The CCP’s missile message also serves a domestic purpose. The government has endured repeated scandals over corruption within the People’s Liberation Army Rocket Force (PLARF). It purged many of its senior military leaders. Timothy Heath, a senior international defense researcher at RAND Corporation suggested “The test was an opportunity for the PLARF to restore its credibility with China’s leadership” and show that it remained capable despite the corruption scandals. Johnn Ciociari, dean of the Hamilton Lugar School of International Studies at Indiana University pointed out that “Within China, it supports a nationalist narrative about the government’s competence and resolve… Regionally, it is part of a broader effort to discourage China’s neighbors from challenging Beijing on Taiwan or other flashpoints.” He added that “To global audiences, the test may seek to amplify perceptions that China is gaining rapidly on the United States in military power and technological prowess.”

There is yet another urgent concern for Washington beyond China’s perceived intent to show it is ICBM-capable of attacking the United States. Some in the military intelligence community in Washington are concerned that due to the financial cost of Russia’s war in Ukraine, Moscow may be manufacturing and likely selling advanced military technologies that fill any remaining gaps the CCP has in its arsenal. The US must be prepared under the oceans, on the ground, and in space to confront Chinese aggression.

Daria Novak served in the U.S. State Dept.

Photo: A Smart Dragon-3 carrier rocket carrying eight satellites blasts off from the waters near the city of Haiyang in east China’s Shandong Province, Sept. 24, 2024. China launched the rocket on Tuesday, placing eight satellites into planned orbit. The commercial rocket blasted off at 10:31 a.m. (Beijing Time), carrying Tianyi-41 and other satellites. The Taiyuan Satellite Launch Center carried out this offshore launch. (Photo by Guo Houze/Xinhua)

On September 25, the US Navy ship Big Horn ran aground and partially flooded off Oman, leaving the Abraham Lincoln Carrier Strike Group without its primary fuel source. The Big Horn was the only US Navy oiler in the entire Middle East. Most Americans slept through our post-Cold War dividend, believing that friendly relations with those antithetically opposed to American values won over the worst of the world’s worst. That time has run out with recent events around the world challenging the idea that if we stay neutral and ignore threats, such as the Russian invasion of Ukraine, they will go away. Congress expanded funding for social welfare programs while failing to supply the money needed to, literally, keep our military afloat. Now Washington is faced with aiding Ukraine at a time when the size and strength of the US military is increasingly challenged.

Washington must assume that even a weakened Russia is taking notice of America’s failure to prepare for peace through strength. There is no doubt within the intelligence community this week that the Russia-China-Iran-North Korea axis is preparing to face off with the West. The remaining question is one of timing. Misunderstanding the nature of the threat and how Putin perceives the West may be Washington’s greatest weakness.

Russian President Vladimir Putin made three bets according to Dr. Junhua Zhang, a senior associate at the European Institute for Asian Studies. They are not unlike those made by Saddam Hussein before his invasion of Kuwait. At that time President Bush failed to forcefully send a message to Hussein to back down. President Biden has failed to reign in Putin despite modest administration efforts inside the White House National Security Council.

Putin bet that no matter what occurred after the start of his “special military operation” he would have buyers for his country’s oil and gas to finance his effort. He received assurances in advance and today China and India continue to purchase at discounted prices that are high enough to support his war machine. 

Putin’s second bet may be short-lived but addresses Moscow’s immediate need as China is not parting with its Russian alliance. Several years after Putin’s invasion in Ukraine, Beijing continues its comprehensive support in diplomacy, finance, military, industry, and consumer goods. According to Reuters, Russia even allowed a Chinese toy factory to produce military drones, despite Beijing’s official protestations that “We are neutral, and we don’t deliver any weapons to any war party.” 

Finally, Putin bet on us in the West. He gambled that Washington, and other western capitals, would say they opposed Russian aggression, but would be deterred from immediate and substantial assistance to Ukraine. Putin surmised his threat to use nuclear weapons would be enough to stop any extensive action on the part of the West. Although the West is stepping up, Putin remains undeterred in using long-range missiles to hit Ukraine. At the same time, Ukrainian President Zelensky doesn’t receive comparable support from the West to move deeper into Russian territory. 

Some in the intelligence community are quietly discussing whether we are moving into a post-Westphalian rules-based order. Economic globalization, a lack of support in Washington for maintaining the most advanced military to deter aggression, and China’s emergence into the world order claiming leadership rights, all contribute to destabilizing the world. 

Perhaps, there is a fourth bet. By weakening the European Union (EU) and the United States, along with the euro-dollar and western financial sectors, Moscow can attempt to participate in leading new economic, social, and political expansions elsewhere in the world. The BRIC countries appear to be one target susceptible to Putin’s overtures as can be seen in their supportive actions at the United Nations. 

Earlier this month, following an interview after the Forum on United Cultures, Russian President Vladimir Putin again threatened the Western nations claiming that strikes on Russian territory meant direct participation by the Nort Atlantic Treaty Organization (NATO). It isn’t the first time the Russian leader has made such a threat. It failed to deter the West despite additional threats from other senior Russian officials, including the current Deputy Chairperson of the Russian Security Council Dmitry Medvedev, who claimed a nuclear response is possible. When backed into a corner Putin will strike out like a venomous snake, despite its impending death, says Rebecca Koffler, a former DIA Russian analyst and author of “Putin’s Playbook.”

Boris Bondarev, of the Jamestown Foundation, says “How the West responds to these is essential. Western states would benefit from responding the same way they have to the previous threats: take them into account but proceed from the fact that Putin himself is afraid of drastic and unpopular steps, whether in the political or military sphere.” The risk is that as the US military grows older and comparatively less capable over time, Putin’s threats could become reality should he see it as a last ditch effort to save the former Russian empire from dismantlement.

Daria Novak served in the U.S. State Dept.

Photo: U.S.S. Big Horn (U.S. Navy photo)

Things have not gone well for Special Counsel Jack Smith this year.  First, the United States Supreme Court decided that a number of the allegations brought against former President Donald Trump in Smith’s “January 6″ indictment were subject to absolute immunity, and as such, could not form the basis for a criminal prosecution.  Then, Smith’s “classified documents” indictment was dismissed by Judge Aileen Cannon, who followed the reasoning of Supreme Court Justice Clarence Thomas and ruled that Smith’s appointment as Special Counsel was illegal, which means Smith did not have the power to indict former President Trump in the first place.

These reversals, however, do not spell the end of Jack Smith’s efforts.  The intrepid Special Counsel has appealed Judge Cannon’s ruling to the 11th Circuit Court of Appeals. His office has also filed a superseding indictment in the “January 6” case. 

As described by CNN, a superseding indictment is  “a document that amends and replaces the original indictment, listing the formal charges against a defendant. A grand jury typically approves a superseding indictment after additional information or evidence has been obtained, and the new document usually adds charges or defendants to the case…in rare instances, minor deletions of details included in the initial indictment have been permitted.” 

When the US Supreme Court handed down its ruling in Trump v. United States, Chief Justice Roberts distinguished between a President’s official, constitutionally mandated actions, which are entitled to absolute immunity, from acts which have a presumption of immunity, a presumption which can be rebutted, from unofficial acts which have no immunity.  Since “no court has thus far considered how to draw [these] distinction[s],” Roberts stated that “[t]his necessarily factbound analysis is best performed initially by the District Court. We therefore remand to the District Court to determine in the first instance whether this alleged conduct is official or unofficial.”

Rather than allow District Court Judge Tanya Chutkin to perform this analysis, The Special Counsel filed a superseding indictment. “’The superseding indictment, which was presented to a new grand jury that had not previously heard evidence in this case, reflects the Government’s efforts to respect and implement the Supreme Court’s holdings and remand instructions’…Smith’s office said.” 

In particular, Smith removed a section from the original indictment that accused Trump  of using “the power and authority of the Justice Department to conduct sham election crime investigations and to send a letter to the targeted states that falsely claimed that the Justice Department had identified significant concerns that may have impacted the election outcome.” These allegations were specifically discussed in Chief Justice Robert’s opinion; “The Government does not dispute that the indictment’s allegations regarding the Justice Department involve Trump’s ‘use of official power’…the Executive Branch has ‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute, including with respect to allegations of election crime.”  For this reason, these discussions are entitled to absolute immunity, since “[t]he President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to ‘take Care that the Laws be faithfully executed.'” (Citations omitted.)

Yet, the removal of these allegations does not cure the defects which are carried over from the original indictment to the superseding one.  In fact, this new indictment is just as facially insufficient and impossible to prove as was its predecessor.

The new indictment continues to assert that Donald Trump “used knowingly false claims of election fraud to get state legislators and election officials to subvert the legitimate election results and change electoral votes for the Defendant’s opponent, Joseph R. Biden, Jr., to electoral votes for the Defendant.”  It is also alleged that Trump “organized fraudulent slates of electors in seven targeted states (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin), attempting to mimic the procedures that the legitimate electors were supposed to follow under the Constitution and other federal and state laws.”

In Chapters 14 and 15 of our book, The Making of a Martyr, an Analysis of the Indictments of Donald Trump,  we review these particular allegations.  In particular, we discuss the inability to establish that Donald Trump did not sincerely believe that the 2020 President election was stolen from him through election fraud in the “seven targeted states.”  We noted that according to Jack Smith, “Donald Trump knew that there wasn’t any ‘outcome determinative fraud’ in the 2020 presidential election because other people told him so,” those other people being some of his attorneys and officials at the Justice Department.  However, “[f]rom all appearances, Trump believed there was election fraud, that it was indeed ‘outcome determinative,’ and as a result, he challenged the results of the election in every way possible.”

Further, we also examine whether or not making use of alternate electors would even constitute a criminal act.  We trace prior instances of alternate electors, and efforts by progressive Democrats to convince duly-elected electors to change their votes, and conclude that “[m]ost federal prosecutors have better things to do than become involved in a political process and prosecute ‘invalid electors’ whose votes have been rejected by Congress, or those who encouraged the submission of those alternate votes.”

These problems from the original indictment remain in the superseding one.  A new problem, however, is presented by the re-worked allegations regarding former President Trump’s interaction with Vice-President Pence.

Originally, the indictment claimed that Trump  “attempted to enlist the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results…using knowingly false claims of election fraud, (Trump) attempted to convince the Vice President to use the Defendant’s fraudulent electors, reject legitimate electoral votes, or send legitimate electoral votes to state legislatures for review rather than counting them.”

In Chief Justice Roberts’ opinion, he noted that Smith’s office “explained at oral argument that although it ‘has not yet had to come to grips with how [it] would analyze’ Trump’s interactions with the Vice President, there is ‘support’ to characterize that conduct as official…[i]ndeed, our constitutional system anticipates that the President and Vice President will remain in close contact regarding their official duties over the course of the President’s term in office.”

To get around this weakness in Smith’s case, the Special Counsel now asserts that Trump “attempted to enlist the Vice President, in his ceremonial role as President of the Senate at the January 6 certification proceeding to fraudulently alter the election results.” (Emphasis added.)  As this change is described by NBC News, “[t]he new indictment also notes Vice President Mike Pence’s role as president of the Senate on the day of the electoral vote count –  Jan. 6, 2021 – in an apparent nod to concerns from the Supreme Court about whether evidence of Trump’s campaign to get Pence to intervene in the count should be allowed. The Supreme Court ruling said, ‘Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct,’ and there is therefore a ‘presumption of immunity’ around their conversations. But the ruling also noted that Pence’s responsibility of ‘presiding over the Senate’ is not an ‘executive branch’ function.'” 

It is hard to see how this change suddenly converts Trump’s actions from official to unofficial.  In essence, Smith asserts that the former President was speaking to Vice President Pence as a private citizen and candidate for office, and not as President of the United States, while Pence was not acting as Vice President, but in his “ceremonial” capacity as President of the Senate.  In the alternative, Trump, as head of the Executive Branch, spoke to Pence outside of Pence’s Executive Branch responsibilities.

 One fallacy  of this argument is the attempt to paint the Vice President’s role as President of the Senate as “ceremonial.”  In fact, this office is given to the Vice President specifically by the United States Constitution.   Under Article I, Section 3, Clause 4, “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.”  Constitution Annotated makes clear that this role is far from “ceremonial”; “In addition to casting the tie-breaking vote when the Senate is divided equally, the President of the Senate also, among other things, conducts the electoral count and attests that an enrolled bill has been passed by the Senate. By affixing his or her signatures to an enrolled bill the President of the Senate along with the Speaker of the House indicates that the bill has passed Congress and is ready for presentment to the President.” 

Thus, Pence’s “ceremonial” role as President of the Senate is a duty which lies outside of his responsibilities to the Executive Branch as Vice President.  This is a duty he owes to the Legislative Branch.  But as outlined, that role is far more than “ceremonial.”

While it is true that the Supreme Court used the example of the President’s interaction with those he supervises in the Executive Branch (eg, the Attorney General) as a model for actions which enjoy absolute immunity, in adopting this example so closely, Smith takes the narrow view that the President’s interactions with those outside the Executive Branch are not actions which are entitled to immunity. 

This view is demonstrably wrong.

Under Article 2, Section 3 of the United States Constitution, the President “shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.” (Emphasis added.)

Based on this clause in the United States Constitution, there is a view of the evidence possible, that then-President Trump was consulting with Vice President Pence, in Pence’s capacity as President of the Senate, “in consideration” of a measure that Trump deemed “necessary and expedient,” that is, securing a free and fair election.  If that were the case, then President Trump would be entitled to absolute immunity for his actions.

 At best, then, all Smith has done is state a claim in rebuttal of the presumption of Executive action entitled to absolute Immunity.  The allegations in the superseding indictment do not establish that Trump was acting solely as a candidate, in an unofficial capacity, and not as President, to insure that the election was fair.

Thus, much like Smith’s allegations regarding former President Trump’s “knowingly false claims of election fraud” and his “fraudulent slate of electors,” Smith has set up yet another straw man with his superseding indictment.  HIs allegations are premised on suppositions unsupported by logic, or the facts.  How can Smith prove that Vice President Pence’s role as President of the Senate is merely ceremonial, and how can he establish that Trump addressed Pence as a private candidate for office, and not in his Constitutional role as President of the United States, acting in consideration of something he felt was “necessary and expedient,” that is, to safeguard the nation’s election process from what Trump believed to be an obviously stolen election?

If Smith’s new allegations serve only as an attempt to rebut the assumption that former President Trump’s actions were taken in his official capacity, and therefore subject to immunity, then Jack Smith continues to fall short of the standard necessary to prove Donald Trump guilty of any crime, the standard that applies in all criminal cases – proof of guilty beyond a reasonable doubt.

Judge John Wilson served on the bench in NYC

Photo: Special Counsel Jack Smith (official photo)

In our book Not Wasting a Crisis, the Lawless Biden Administration,  we describe the efforts made, and that continue to be made, by the current Government to use its emergency powers to expand its authority.  Many of these efforts have been attempted by Cabinet Secretaries, who have ordered their administrative agencies to promulgate regulations such as the mask and vaccine mandates during the Covid pandemic, or the DEI initiatives imposed on the Department of Defense and the FBI.

Time and again, these overreaches have been blocked by the US Supreme Court and lower courts based upon an examination of the original intent of Congress when a law was established; that is, did Congress intend to authorize the broad exercise of power claimed by a federal agency?  Most often, the answer was no – Congress did not give the power claimed by an agency to that agency.

In Loper Bright Enterprises, the same rationale is applied; When it passed the APA, “Congress surely would have articulated a similarly deferential standard applicable to questions of law had it intended to depart from the settled…understanding that deciding such questions was ‘exclusively a judicial function’…[b]ut nothing in the APA hints at such a dramatic departure.”

Courts often applied the Chevron deference when the issue was a technical matter, and the federal agency was presumed to be the expert on such a complicated issue.  Roberts dispels this reasoning by again referring to Congressional intent. “[E}ven when an ambiguity happens to implicate a technical matter,” the Court writes, “it does not follow that Congress has taken the power to authoritatively interpret the statute from the courts and given it to the agency. Congress expects courts to handle technical statutory questions.”

“[D}elegating ultimate interpretive authority to agencies is simply not necessary to ensure that the resolution of statutory ambiguities is well informed by subject matter expertise,” Roberts concludes. “The better presumption is therefore that Congress expects courts to do their ordinary job of interpreting statutes, with due respect for the views of the Executive Branch. And to the extent that Congress and the Executive Branch may disagree with how the courts have performed that job in a particular case, they are of course always free to act by revising the statute.”

The usual suspects sounded the usual alarm bells after the Loper Bright decision was published. “The Supreme Court’s decision to torch a once-obscure Reagan-era legal doctrine will remake one of the most fundamental aspects of power in Washington,” Politico claims, “and hobble presidents pursuing aggressive policies on anything from abortion to student debt relief. Peeling back the doctrine known as Chevron deference has been a conservative cause for decades, one aimed at restricting agencies’ freedom to decide how to interpret Congress’ often-ambiguous statutes…Conservatives advocating the change aimed to restrain presidents – mostly Democrats – whose agencies have stretched the boundaries of laws passed decades or generations ago to address the problems of today. Defanging the White House this way frees up judges to reach their own conclusions about what lawmakers meant, but it comes with a daunting consequence: From now on, Congress will be expected to sort out the intricacies of issues like housing finance, greenhouse gas emissions and artificial intelligence, at a time when it’s already struggling to legislate on big issues.” 

In particular, Politico frets that “[t]he future of Biden’s student debt relief efforts – an appeal to young and millennial voters – may come undone without Chevron…[t]he Education Department argues that the president has the authority to enact this relief under the Higher Education Act’s compromise and settlement authority…[b]ut many argue that the agency’s interpretation is too broad, leaving Biden’s push particularly vulnerable to a judge unrestrained by Chevron.

On the other hand, “Roman Martinez, who argued the case on behalf of one of the fishing companies, applauded the decision. ‘By ending Chevron deference,’ he said in a statement, ‘the Court has taken a major step to preserve the separation of powers and shut down unlawful agency overreach. Going forward, judges will be charged with interpreting the law faithfully, impartially, and independently, without deference to the government. This is a win for individual liberty and the Constitution.'” 

In the end, your position on the reversal of the Chevron deference depends upon your opinion of the Administrative State.  Do you want unelected bureaucrats to assert their expertise in promulgating more and more regulations that affect our daily lives, or do we want the Courts to perform their traditional job of interpreting statutes, and issuing opinions that reflect the intent of Congress?  Do we respect the separation of powers embodied in our Constitution, or do we want a government that exceeds its authority whenever it can for its own purposes? Do we want a government that forgives billions of dollars in student loans in an effort to buy the votes of young people, or an Administration that respects the rule of law?

Judge John Wilson served on the bench in NYC

Illustration: Pixabay

In April, we discussed the 1984 Supreme Court decision in Chevron USA v. Natural Resource Def. Council, 467 US 837 (1984).  “Briefly stated,” we wrote, “the case involved a challenge to regulations promulgated by the Environmental Protection Agency regarding air pollution controls mandated for manufacturing and oil refining plants and factories. In Chevron, the Court held that ‘[a]n agency, to engage in informed rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis. Policy arguments…should be addressed to legislators or administrators, not to judges. The EPA’s interpretation of the statute here represents a reasonable accommodation of manifestly competing interests and is entitled to deference.’” 

The Chevron case has been instrumental in the rise of the Administrative State. “For the past 40 years,” we noted, “this ‘Chevron deference’ has been granted to a variety of determinations made by every regulatory agency of the federal government.  To paraphrase the substance of this deference, ‘they’re the experts – they know better.’”

We also described a pair of cases recently brought before the US Supreme Court that gave the high court the opportunity to revisit and perhaps reverse this deference to administrative agency determinations.  “As described by Reuters,  ‘[I]n Loper Bright Enterprises v. Raimondo…petitioners challenge[d] regulations of the National Marine Fisheries Service (NMFS) which impose a per diem fee on vessels to pay for the individual they are required to carry on trips to monitor compliance with fisheries rules under the Magnuson-Stevens Act (MSA).’  This case was consolidated with Relentless, Inc. v. Department of Commerce, ‘[also] a challenge to the per diem fees imposed by the NMFS on vessels to pay the cost of the observers the NMFS sends out to monitor the health of fisheries.’”

The Supreme Court’s decision has been published, and as most Conservatives and Free-Market proponents had hoped, the Chevron deference is no more.

Chief Justice Roberts’ majority opinion in Loper Bright Enterprises v. Raimondo explains the primary reason for the reversal of Chevron – the standard established in that case was a violation of statutory law which predates the Chevron decision itself.

In 1946, more than 35 years before Chevron was decided, Congress passed the Administrative Procedure Act (APA). A response to the Roosevelt “New Deal” era, Roberts writes that the APA was intended “’as a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices’…[i]t was the culmination of a ‘comprehensive rethinking of the place of administrative agencies in a regime of separate and divided powers.’” (Citations omitted.)

According to Chief Justice Roberts, “[i]n addition to prescribing procedures for agency action, the APA delineates the basic contours of judicial review of such action. As relevant here, Section 706 directs that ‘[t]o the extent necessary…the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action’…It further requires courts to ‘hold unlawful and set aside agency action, findings, and conclusions found to be . . . not in accordance with law.’” (Citations omitted.)

Chief Justice Roberts describes the significance of this law; “The APA thus codifies for agency cases the unremarkable, yet elemental proposition…that courts decide legal questions by applying their own judgment. It specifies that courts, not agencies, will decide ‘all relevant questions of law’ arising on review of agency action…even those involving ambiguous laws…and set aside any such action inconsistent with the law as they interpret it. And it prescribes no deferential standard for courts to employ in answering those legal questions.”

“[B]y directing courts to ‘interpret constitutional and statutory provisions’ without differentiating between the two,” the Court writes, “Section 706 makes clear that agency interpretations of statutes – like agency interpretations of the Constitution – are not entitled to deference. Under the APA, it thus ‘remains the responsibility of the court to decide whether the law means what the agency says.’”

In essence, then, there never should have been a Chevron deference in the first place – “The deference that Chevron requires of courts reviewing agency action cannot be squared with the APA….Neither Chevron nor any subsequent decision of this Court attempted to reconcile its framework with the APA. The ‘law of deference’ that this Court has built on the foundation laid in Chevron has instead been ‘[h]eedless of the original design’ of the APA.” (Citations omitted.)

“Perhaps most fundamentally,” Roberts states, “Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do. The Framers, as noted, anticipated that courts would often confront statutory ambiguities and expected that courts would resolve them by exercising independent legal judgment. And even Chevron itself reaffirmed that ‘[t]he judiciary is the final authority on issues of statutory construction’…Chevron gravely erred, though, in concluding that the inquiry is fundamentally different just because an administrative interpretation is in play. The very point of the traditional tools of statutory construction – the tools courts use every day – is to resolve statutory ambiguities. That is no less true when the ambiguity is about the scope of an agency’s own power – perhaps the occasion on which abdication in favor of the agency is least appropriate.”

Judge John Wilson’s (ret.) article concludes tomorrow

Gen. Christopher Cavoli, supreme allied commander Europe and the head of U.S. European Command has warned of growing threats facing NATO.

“There is a lot of work to be done, and there are big challenges looming — some of them are right in our face, right now,” he warned at the Aspen Security Forum.

He is not alone in his concern. the Germany-based Friedrich Naumann Foundation for Freedom notes that “The beginning of Russia’s invasion of Ukraine … marked a deep break … Questions concerning Europe‘s self-image as a voluntary alliance of nation states, its ability to defend itself and the protection though NATO as well as the values for which it stands are further tested by refugees coming to Europe from Ukraine.  The democracies of the European Union are vulnerable and their reaction to Putin’s war are carefully watched. Authoritarian states, such as China, predict Europe’s decline and emphasize their own superiority over the ‘Western systems.’”

The most interesting fact General Cavoli emphasized was that, in addition to the renewed danger from expansionist Russia, is the growing threat from China.

The German Marshall Fund describes the problem.. “Russia and China continue to deepen their partnership, mounting a common challenge to the West. They can advance their strategic objectives better together, undermining perceived Western domination of the global order and impacting Europe’s future security. Russia’s war of aggression against Ukraine has de facto upended the post-Cold War security architecture in Europe and is a direct, existential threat to European security. Beijing plays an important role for Russia’s war efforts, regardless of China’s status as Europe’s largest trading partner or its desire to hedge on Europe to win its geostrategic competition with the United States. “

NATO has continued to concentrate on the potential threat from Beijing. . It developed its concern against the backdrop of China’s designation as a “long-term strategic competitor.” Both the Trump and Biden administrations have sought to expand transatlantic cooperation on China, motivated by the belief that greater European support to US policies is key to effectively addressing the economic, political and strategic challenges associated with China’s growth. While Washington has put much emphasis on discussing with the EU and individual European countries how best to tackle the geo-economic, technological and diplomatic challenges associated with China’s rise and behaviour, NATO has also become an increasingly important partof transatlantic cooperation on China.

Some Chinese military threats to Europe are conventional. China and Russia have engaged in joint maneuvers in the Mediterranean, and the Chinese naval presence in the Middle East has grown.

Others are of a different variety. The Atlantic Council says that some Chinese threats to European security are merely insidious. For example, China undermines Europe’s military capabilities by stealing defense-related intellectual property and sharing it with its own military and defense industry as China develops new weapons and capabilities. Similarly, Chinese investment in European infrastructure—especially shipping terminals, utilities, and telecommunications networks—provides an excellent platform for intelligence-gathering on NATO military operations. In a worst-case scenario, China could weaponize its ownership or operation of infrastructure in Europe to frustrate, limit, or prevent US or allied use. In other cases, the Chinese threat to Europe manifests in the form of outright attacks. Chinese cyberattacks on European government, industry, military, academic, and civil institutions—including, reportedly, on hospitals during the pandemic—are relentless and massive. In 2014, NATO declared that cyberattacks could trigger the invocation of Article 5, the Alliance’s mutual-defense clause.

Increasingly, the links between Russia, China, and now Iran as well,  are a source of deep concern to Europe, the United States,  and other nations.