Making America Puny, or Is the Emperor Naked

January 9, 2018

Trump talks tough. His world strategy seems to go it alone in every context.

  • He antagonized Canada over NAFTA and Mexico over the wall.
  • He antagonized Britain by forwarding Nazi propaganda.
  • He aggravates the international refugee crisis that is roiling Europe.
  • He withdrew from world agreements to combat global warming.
  • He denies that Iran has been living up to its obligations under the Iran nuclear agreement despite the conclusions of international inspection agencies.
  • After screaming about the size of his button, quiet and patient South Korean diplomacy forced Trump to agree to pick up a phone.
  • He withdrew from Asia and the Trans-Pacific alliance and left that part of the world to China’s tender hands.
  • He abandoned an international consensus over the status of Jerusalem. Israel has demanded a great deal from us, including the antagonism of the world’s billion Muslims. But nothing is too much.
  • He doesn’t like the UN or our support of it even though it has made this country central to international everything. But who needs everything?

Tough, tough, tough, he’s talks tough alright, but he is increasingly alone. Some Americans like to say we are number one. But with mounting disputes and fewer allies, are we more than a lone tough in a bar brawl?

If we are irrelevant to the free world, who’ll care what happens to us? If our policies undermine the free world, who will come to our defense? If our only friends are strongmen who repress their own people, will they turn on us whenever it suits them? Antagonizing the world, risks being swamped by a hostile world. This is not the America of George Washington which could avoid entangling alliances while protected by the enormity of the oceans. The oceans are puny now that tiny North Korea can aim across them.

True military power is based on industrial might, not exports or raw materials. You could read the emergence of Germany and America in industrial statistics before they became world powers. But Trump hasn’t yet brought himself to support investments that would strengthen industrial power at home, like new and renovated infrastructure, science and education. Expanding coal mining and gas pumping, of which we already produce plenty, serve the world market, not industrial power at home, while American industries have begun a massive shift to other sources of energy. Oil and gas have been staples of weak third-world nations that have descended into catacombs of corruption – much as we have been doing – corruption spurred worldwide by extractive industries.

True world power is a combination of industrial, military and moral power. It requires leadership, engagement and understanding of the complexities of other nations’ needs and values. The alternative is a war against all in which America, no matter how much it claims, can and will be swamped by a hostile world. Trump’s bluster exposes our weakness, not our strength.

— This commentary was broadcast on WAMC Northeast Report, January 9, 2018.

 

 

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On Corporate Privilege – Have They No Shame?

April 21, 2015

In a legal system which holds corporations responsible for virtually nothing, corporate power, hypocrisy and the wall of corporate shame keep growing.

Corporations put clauses in consumer contracts that make suing them useless and impossible. They make us sign those contracts for most of what we buy from the modern economy. The Supreme Court says OK on the fiction that we don’t have to sign the so-called agreements. As far as the Court is concerned, all we have to do is opt out of the economy and then no corporation can bother us.[1] If a dispute ever gets to a hearing, it is heard by arbitrators chosen by the corporate sellers.

Industry groups repeatedly argue that they have to put such abusive provisions in their contracts or they couldn’t give us a good deal. In other words, when people are down, their mortgages underwater, corporations should just keep kicking – they’re really just doing it for us.

That’s bad enough for people who are just trying to be treated fairly. But corporations have been getting the privilege of trashing rules protecting us from toxins and pollutants in favorably disposed forums. These are so-called investor-to-state dispute settlement or ISDS clauses in international trade agreements. Corporations can attack any rules that will cost them money, which of course means all regulation is vulnerable. Like the domestic arbitration clauses that the U.S. Supreme Court has blessed, “These challenges are not heard in a normal court but instead before a tribunal of private lawyers,” as the Alliance for Justice and many prominent attorneys have told Congress.[2]

There’s already an ISDS clause in the North American Free Trade Agreement, or NAFTA.[3] Corporations are trying to keep the ISDS mechanism in trans-atlantic agreements that multi-nationals will use against food and environmental laws here and in Europe, claiming they restrict free commerce.[4] Cecilia Malmstrom, the European Union’s trade commissioner, responded “We want the rule of law, not the rule of lawyers.”[5]

Describing the terms of the 12-nation trade accord for a Trans-Pacific Partnership for which Congress is considering fast track authority for President Obama, Jonathan Weisman wrote in the Times that it would “allow foreign corporations to sue the United States government for actions that undermine their investment ‘expectations’ and hurt their business,” using the business friendly ISDS procedure.[6] Once again that is poised to protect multinational corporations from food, health and environmental regulation.

In D.C., the coal industry is trying to convince the U.S. Supreme Court to block the Environmental Protection Agency from going ahead with procedures for strengthening rules preventing toxic emissions of mercury.[7]

Here at home, toy industry groups are suing against efforts of Albany County to ban the sale of toxic toys, with such poisons as lead, mercury and arsenic, claiming it’s a violation of the Constitution and federal statutes.[8]

Business repeatedly claims regulation isn’t necessary because they are honorable and we can trust them and the economy. But their choice of legal targets make clear what they really believe.

No one has the right or privilege to put toxins in us, in our air, water, or our kids’ toys. Have they no shame? It’s time we had a government, all of whose branches respected the rights of the rest of us.

— This commentary was broadcast on WAMC Northeast Report, April 21, 2015.

[1] See American Express Company v. Italian Colors Restaurant, 133 S. Ct. 2304, 2313 (2013) (Kagan, dissenting); Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006).

[2] Letter over the signature of many well-known law professors and sent by the Alliance for Justice to congressional leadership, available at http://org2.salsalabs.com/o/6539/p/dia/action3/common/public/?action_KEY=19342.

[3] NAFTA ch. 11.

[4] REUTERS, EU Seeks Solution to Keep Arbitration in U.S. Trade Deal, March 18, 2015, 12:22 P.M., http://www.nytimes.com/reuters/2015/03/18/business/18reuters-eu-usa-trade.html.

[5] Id.

[6] Jonathan Weisman, Trade Pact Seen as Door for Suits Against U.S. New York Times, March 26, 2015, at B1, available at http://www.nytimes.com/2015/03/26/business/trans-pacific-partnership-seen-as-door-for-foreign-suits-against-us.html.

[7] Editorial, Dirty Coal at the Supreme Court, New York Times, March 23, 2015, at A20, available at http://www.nytimes.com/2015/03/23/opinion/clean-air-act-and-dirty-coal-at-the-supreme-court.html?emc=edit_tnt_20150323&nlid=47098180&tntemail0=y.

[8] Matthew Hamilton, Industry contests toxic toys ban, Albany Times Union, April 17, 2015 at A1.


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