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> which legally is 100% a matter of foreign policy, and therefore at the executive branches sole discretion I don't think the executive branch has sole and arb

> which legally is 100% a matter of foreign policy, and therefore at the executive branches sole discretion I don't think the executive branch has sole and arbitrary discretion over foreign policy? For one thing, there's the treaty clause, and the foreign commerce clause of article 1 section 8. This judge apparently agrees.

beerandt 6y ago
Maybe "ultimate" is a more accurate word than "sole," but in general, short of declaring War, foreign policy power eventually falls on the executive when tensions exist between branches. The president can unilaterally leave treaties, arguably universally. SCOTUS has said that as head of State, even the recognition that other countries exist and/or are legitimate falls upon him. Yesterday's SG argument at SCOTUS brought up many of the reasons why the judicial has historically, and should continue, to stay out of foreign policy matters. Foreign commerce clause is a better argument, but I'd say regardless, here the President is operating within the laws and framework as Congress has legislated under that authority. Whether the judge agrees is sort of circular logic here, not affirmation.
- asdfasgasdgasdg 6y ago
  > Yesterday's SG argument at SCOTUS brought up many of the reasons why the judicial has historically, and should continue, to stay out of foreign policy matters. If there is anything generically less convincing to me than a lawyer's presentation of arguments favoring their client's point of view, I can't think of it. > Whether the judge agrees is sort of circular logic here, not affirmation. So, I'm not clear on whether you're claiming that the president in fact does have the powers you're ascribing to them, or if you're saying they ought to, or if you're saying they have historically. If you're saying the president does have that power, well, that's is the contested question. The most recent update we have from the entity that has the power to decide -- the judicial branch -- is that the president does not. If you're saying they ought to, well, that's just like, your opinion man. :) If you're saying they have historically, I confess some ignorance on the matter, but I'm not familiar with any recent examples of retaliatory expropriation like this in the United States.
  - beerandt 6y ago
    >The most recent update we have from the entity that has the power to decide -- the judicial branch My point is that for most foreign policy matters, the judicial branch doesn't have the constitutional power, or even any congressionally granted special jurisdiction, to decide these things. (Except for very specific exceptions spelled out by Congress, which is what yesterday's case was about.) I brought up the SG's argument bc of the case law he cited is closely related, not because his argument was applicable to this case. They argued whether a case fell into a niche congressional explicit exception. And both sides recognized that, in general, courts don't have a role in most of these foreign policy arguments. Import/export control on software isn't an exception, and in fact is explicitly allowed by statute. I don't think anyone is arguing that the executive lacks the power of instituting import/export control over software that 1) is owned by a non-US entity, and might be either 2a) weaponized by a foreign adversary or 2b) used in a way that compromises national security. They've already done it for years, including the infamous encryption export controls. Those didn't make much sense, but no one really argued the president couldn't do it. Those decisions are political ones, not judicial ones. And judicial precedent recognizes that, and defers to the executive, despite what this judge has ruled. The US embassy moving to Jerusalem brought up many of the same issues, if you want to explore how this likely plays out. Even in the face of some congressional directives (I think via funding) explicitly not allowing the move. >So, I'm not clear on whether you're claiming that the president in fact does have the powers you're ascribing to them, or if you're saying they ought to, or if you're saying they have historically. All of the above :) >retaliatory expropriation Whether retaliatory or not, import/export control or tariffs aren't a constitutional taking, and so isn't expropriation any more than taxes are. There might be some more interesting arguments to be made re:equitible treatment under the law if it were owned by an American company (and I suspect this is where your thoughts are), but it's not, and if it were, many of the underlying issues would be mooted.

beerandt 6y ago

Maybe "ultimate" is a more accurate word than "sole," but in general, short of declaring War, foreign policy power eventually falls on the executive when tensions exist between branches. The president can unilaterally leave treaties, arguably universally. SCOTUS has said that as head of State, even the recognition that other countries exist and/or are legitimate falls upon him. Yesterday's SG argument at SCOTUS brought up many of the reasons why the judicial has historically, and should continue, to stay out of foreign policy matters. Foreign commerce clause is a better argument, but I'd say regardless, here the President is operating within the laws and framework as Congress has legislated under that authority. Whether the judge agrees is sort of circular logic here, not affirmation.

asdfasgasdgasdg 6y ago
> Yesterday's SG argument at SCOTUS brought up many of the reasons why the judicial has historically, and should continue, to stay out of foreign policy matters. If there is anything generically less convincing to me than a lawyer's presentation of arguments favoring their client's point of view, I can't think of it. > Whether the judge agrees is sort of circular logic here, not affirmation. So, I'm not clear on whether you're claiming that the president in fact does have the powers you're ascribing to them, or if you're saying they ought to, or if you're saying they have historically. If you're saying the president does have that power, well, that's is the contested question. The most recent update we have from the entity that has the power to decide -- the judicial branch -- is that the president does not. If you're saying they ought to, well, that's just like, your opinion man. :) If you're saying they have historically, I confess some ignorance on the matter, but I'm not familiar with any recent examples of retaliatory expropriation like this in the United States.
- beerandt 6y ago
  >The most recent update we have from the entity that has the power to decide -- the judicial branch My point is that for most foreign policy matters, the judicial branch doesn't have the constitutional power, or even any congressionally granted special jurisdiction, to decide these things. (Except for very specific exceptions spelled out by Congress, which is what yesterday's case was about.) I brought up the SG's argument bc of the case law he cited is closely related, not because his argument was applicable to this case. They argued whether a case fell into a niche congressional explicit exception. And both sides recognized that, in general, courts don't have a role in most of these foreign policy arguments. Import/export control on software isn't an exception, and in fact is explicitly allowed by statute. I don't think anyone is arguing that the executive lacks the power of instituting import/export control over software that 1) is owned by a non-US entity, and might be either 2a) weaponized by a foreign adversary or 2b) used in a way that compromises national security. They've already done it for years, including the infamous encryption export controls. Those didn't make much sense, but no one really argued the president couldn't do it. Those decisions are political ones, not judicial ones. And judicial precedent recognizes that, and defers to the executive, despite what this judge has ruled. The US embassy moving to Jerusalem brought up many of the same issues, if you want to explore how this likely plays out. Even in the face of some congressional directives (I think via funding) explicitly not allowing the move. >So, I'm not clear on whether you're claiming that the president in fact does have the powers you're ascribing to them, or if you're saying they ought to, or if you're saying they have historically. All of the above :) >retaliatory expropriation Whether retaliatory or not, import/export control or tariffs aren't a constitutional taking, and so isn't expropriation any more than taxes are. There might be some more interesting arguments to be made re:equitible treatment under the law if it were owned by an American company (and I suspect this is where your thoughts are), but it's not, and if it were, many of the underlying issues would be mooted.