Judicial Activists Take On National Security

New York

Judicial activism always undermines the rule of law. Rarely, however, does it also endanger national security. Yet the federal judges who have blocked President Trump’s executive orders on immigration have done just that.

The lawlessness of the courts in question has been exposed by a group of five dissenting judges on the Ninth Circuit Court of Appeals. As these judges so ably observe, the federal district courts that ruled against the President’s policy simply ignored binding precedents—of both the Ninth Circuit and the Supreme Court—recognizing the legal authority of the President to act as he did. Moreover, these judges achieved their aim by deploying an utterly novel application of the First Amendment, holding that an executive order that does not even mention religion somehow violates the Establishment Clause.

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Free Trade as an Instrument of Pax Americana

Free trade not only creates economic benefits but advances the security of the United States. It is clear that today we have become less willing to bring about a Pax Americana though military strength.  The disillusion with the results of wars in Afghanistan and Iraq, the sharp cuts to the defense budget, and most of all, the ever growing entitlement state makes it more difficult to project for the long term American force on the world.

But even in the absence of force, free trade can help make the globe safer and the United States more secure. By connecting individuals in different nations through the web of commerce, trade makes war less likely by giving more people a greater stake in avoiding the disruptions of conflict. This insight goes back to Adam Smith and David Hume who celebrated “la douce commerce.” A more modern insight is that democratic nations are less likely to disturb world peace. Given that wealth tends to promote democracy, free trade helps on that front as well. Finally, free trade puts more people in contact with American goods, including its information laden goods, like entertainment. It thus constitutes the most effective form of soft power.

The efficacy of free trade as an alternative mechanism to military strength  for maintaining security makes it all the more disappointing that the President Obama is not pressing hard for it, particularly because it is he who has cut the defense budget and done nothing to reform the entitlement state that enervates our capacity to sustain long term military engagements. And free trade is indispensable for the achievement of his own particular policy goals, most importantly the pivot to Asia.

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Time to End FISA’s “Star Chamber” Court

Far from being a cornerstone of our national defense, the Foreign Intelligence Surveillance Act (FISA) has proved to be an even worse idea than opponents feared when it passed in 1978. By providing judicial pre-authorization for many of our national security bureaucracies’ actions, it is habituating them to dysfunctional practices. By fostering the creation of a secret body of common law regarding civil liberties, it is perverting the American legal system. To repeal it, however, would require confronting the reasons why the security bureaucracies demanded the law in the first place and why they are increasingly attached to it.

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