All posts by Eric Posner

MISC.

Piketty, chs. 3-4

These chapters describe changes in the capital/income ratio over time in several countries. A high capital/income ratio means that capitalists gain a large portion of national wealth, signifying inequality  (given that the wealthy own most of the capital). It’s a bit hard to comment on these chapters since they are part of the larger argument in Part 2, but here are some thoughts.

1. Piketty’s main point is that the capital/income ratio in the UK, France, the US, etc., has changed little over the centuries aside from a major dip around World War I and World War II (a minor dip in the US). The message is that capital-driven inequality is alive and well, and not much different from the bad old days of Austen and Balzac.

2. The dip, however, has created the illusion that inequality is getting better–this is what fooled Kuznets. The wars displaced us from long-run trends but only temporarily.

3. It is true that change has occurred–but the change has been in the composition of capital, not its contribution to national income. Agriculture is less important than it was; manufacturing more important. Like the dip, changes in the composition of capital has distracted observers, causing them to overlook the long-term trends in inequality and the role of capital in those trends. These superficial changes in the form that capital takes prevents us from seeing that our society is fundamentally the same as Austen/Balzac’s.

4. It is noteworthy that in recent years, the contribution of housing to the composition of capital has increased dramatically. This has given rise to some debate about whether this is consistent with Piketty’s thesis. I haven’t tried to understand this debate. You can read about it here.

5. Piketty is often most interesting in his sly asides. In a few places, he distinguishes “rent-seeking” or “quiet” capital from “productive” or “risk-taking” capital. I look forward to seeing whether and how he develops this idea. But the implication is that beyond the capital/income ratio, there is a question of when capital is socially good and when it is socially bad.

Here is my last post on Piketty.

INTERNATIONAL LAW

Asia’s Cauldron by Robert Kaplan

This book describes the turmoil in the South China sea, where China, the Philippines, Malaysia, Singapore, Taiwan, and Vietnam all vie for control over marine and mineral resources. The book consists of thumbnail sketches of each country’s history, economy, political cultural, and position with respect to the South China Sea, and describes the conflicts that have so far taken place. Kaplan takes a relentlessly realist view, arguing that the source of conflict is China’s rise, and the only way to stop the conflict is to maintain a balance of power, which means that the United States must both accommodate China and resist it.

Kaplan has little to say about international law. In a brief discussion of the Law of the Sea Treaty, he argues that if it weren’t for nationalism, the countries could divide up the resources peacefully. He draws a distinction between emotion and intellect–law fails because it can’t contend with emotion. But it’s an odd thing for a balance-of-powers theorist to say: the balance of powers also depends on states acting in their self-interest rather than succumbing to the fires of nationalism. The real problem with the Law of the Sea Treaty is that it does not divide up resources in a manner that reflects the power of countries in these region, and that is what has caused China to depart from the Treaty and insist on ad hoc negotiations with all the attendant risks. If governments lose control of the nationalism of their populations, all bets are off whether you are a realist or a legalist.

CONSTITUTIONAL LAW

Podcast with Ilya Somin: Did President Obama violate the Constitution in the Bergdahl case?

Ilya says yes (based on what I think is an originalist or textualist interpretation of the Constitution), I say no. A few further comments/questions.

1. Assuming both presidents violated the Constitution, Ilya believes that Obama’s constitutional violations (Bergdahl, Libya) are more serious than Bush’s were (torture, surveillance). Although I said the opposite, I’m not sure. How does one measure the seriousness of a constitutional violation (as opposed to the unwisdom of the underlying action)? Bracketing the harm done by these actions, it seems to me that Bush’s would be harder to defend based on conventional legal reasoning (again, if you assume that the president has no authority to defy Congress), but I’m not sure why. Ilya also thinks Obama’s actions caused more harm to the nation than Bush’s did. I don’t know.

2. Ilya tells a story in which we learn over history that certain policies (torture, surveillance, prisoner exchanges, military interventions) are unwise or presumptively unwise. Congress incorporates this understanding into law. The president, because he is motivated by short-term political considerations, violates the law. This is why Congress should be given the power to control executive action. My view is nearly the opposite. To take one of many examples, I believe that Congress’ policy toward Guantanamo Bay reflects short-term political considerations. Or consider the debt limit conflict.

3. Ilya seems quite certain that the prisoner exchange was unwise as a matter of policy. Based on what? Prisoner exchanges (including exchanges with “terrorists”) have been routine throughout history. I believe that abandoning Bergdahl to his fate with the Taliban would have been a blow to national prestige and, I suspect, morale in the military. What would have been the political reaction if the Taliban had executed Bergdahl and then it leaked out that Obama had turned down an offer to make an exchange?

CONSTITUTIONAL LAW

More on the California teachers case

Judge Treu argues that job security rules in California violate the right to education because “über due process” for teachers threatened with dismissal makes it impossible to fire incompetent teachers. He might reflect on this problem. If a strict scrutiny test is now used to evaluate job security provisions, then henceforth students (and interest groups that use them as vehicles) can challenge every change in the rules–and, I suppose, not only changes to job security rules, but also to the curriculum and all other features of schooling. If a school district decides to reduce the number of music courses to make room for computer science, or vice versa, it will now have to show that the change is tailored to a compelling government interest. Raj Chetty will be dragged out again to show the effect of music or computer science on future income.

Or consider again job security. One of the reasons that employers–and not just public schools, but regular commercial firms, as well as universities and many private schools–offer job security is that employees value it so much. They’re willing to accept a lower salary in return for job security. The employer faces a tradeoff: it loses some ability to control employees, but it saves a lot of money, which it can use for other things. And so with the schools. If California is no longer allowed to offer job security, it will either need to pay teachers more (leaving less money to spend on students) or hire fewer teachers. Is that going to advance education? The court has no idea, indeed doesn’t seem to have given any thought to these issues.

The long and the short of it is that a judge is in no position to make these tradeoffs. If courts demand that schools justify reforms (to say nothing of existing rules) using a strict scrutiny test, seriously applied, schools will be frozen–afraid to make any changes lest they are sued by thousands of disappointed students (no doubt financed by interest groups) who claim that their right to education has been violated.

CONSTITUTIONAL LAW

The Teacher’s Union Case

Vergara v. State of California. I do not believe that this case will be affirmed on appeal; or if it is, I believe that it will be distinguished away to oblivion. Courts have had nothing but trouble trying to enforce “social rights” like the right to an education where those rights exist (in states like California, and in many foreign countries), and generally give up. To see why, consider Judge Treu’s holding that the two year probation period for new teachers results in discrimination against low-income and minority students who end up being stuck with grossly incompetent teachers whose incompetence could not be detected in such a short period. Yet he says that a 3-5 year period–which exists in most other states–would be adequate. Yet is there any evidence that a three to five year period rather than a two year period will enable authorities to screen out grossly incompetent teachers? None that the court cites. Nor does the court consider the benefits of a short period–that it might attract teachers who may otherwise go elsewhere (such as private schools).

Or consider his argument that the last-in-first-out rule (junior teachers are fired before senior teachers if layoffs are necessary) discriminates against low-income and minority students. LIFO systems are common in private industry, probably because, despite its defects, it rewards people who invest in the firm. Moreover, people value job security; if you don’t give it to them, you need to pay them more. The court does not provide any serious analysis of the benefits and cost of this system compared to realistic alternatives.

Finally, if, as the court says, these rules discriminate against low-income and minority students because school authorities funnel the grossly incompetent teachers whom they can’t fire to the weakest schools, isn’t the proper remedy to forbid this behavior directly? The court is never very clear whether it is enforcing a right to education (meaning a right not to be taught by a grossly incompetent teacher) or a right not to be discriminated against (a right not to be taught by a grossly incompetent teacher because you are a minority or are poor).

I don’t think that the California courts want to get into the business of running the public schools.

MISC.

Piketty, chs. 1-2

I’m meeting with some colleagues over the summer to discuss Thomas Piketty’s new book, Capital in the Twenty-First Century. We’re reading two chapters every week, and I’m going to post my thoughts as we go along. You can think of this as a slow-motion book review.

Chapter 1 provides an overview, and Chapter 2 mainly discusses concepts, so it’s premature to comment on Piketty’s main argument. Indeed, as I go along, I’ll probably need to revise initial impressions in light of later chapters. That said, here are some comments on the first two chapters.

1. Piketty places himself in an intellectual tradition of economists who are concerned with growth and inequality, above all Ricardo, Marx, and Kuznets. Piketty praises each for focusing on these issues, for attending to empirical realities (particularly Kuznets who puts together the first usable data set), and for proposing a theory about the long-term trend of inequality. And he criticizes each for being, well, wrong, and specifically for extrapolating on the basis of inadequate data.

And my first thought is how these comments rebound on Piketty’s own project. One key issue is to what extent can he reliably extrapolate based on his own (much better data). Kuznets was wrong in extrapolating a downward trend in inequality on the basis of his limited data, and so we have to wonder about the basis for extrapolating an upward trend in inequality on the basis of Piketty’s significantly better but still limited data. One notable point is that Piketty extrapolates low long-term economic growth (a key variable in his theory) on the basis of many hundreds of years of history rather than going back to (say) the industrial revolution or later. Is that the right assumption?

2. I suspect, based more on the reviews than on what I have read so far, but partly on that as well, that we will see two Pikettys, or rather two theses:

a. The weak thesis: there is (contra Kuznets) no law that inequality declines with growth; it could go up or down. No one knows.

b. The strong thesis: there is a law that (also contra Kuznets) inequality will increase with growth.

I’m interested to see how this plays out. The weak thesis may contradict some popular right-wing misconceptions but as an academic theory it’s pretty, well, weak. As Piketty acknowledges, Kuznets himself did not consider his own law anything more than speculative. The strong thesis is much more exciting and important, but may end up being just as speculative as Kuznets’.

3. Another issue that I will revisit as I learn more is what exactly we should think about inequality. Piketty is not very clear about this so far. He hints that inequality could lead to very bad outcomes–revolutions, or an oligarchy, or social instability–or maybe it is inherently objectionable. A very old question is whether inequality is worth tolerating for the sake of growth if the bottom rises. Piketty is already clear that we can’t assume that this is the case; nonetheless, we need to know what we think about this before we propose reforms that might improve equality but suppress growth.

4. Finally, I was struck by an interesting observation that Piketty makes in passing about development. He argues that the development success stories–China, South Korea, Japan, and so on–benefited from free trade but not from foreign investment. Meanwhile, foreign investment has actually harmed many countries, especially in Africa and maybe Latin America, because poor members of the public resent foreign wealth in their midst and support populist governments that expropriate foreign investment and destroy the economy. Is there empirical evidence for this argument?, I wonder. If it’s right, it has important implications for how best to help developing countries (namely, don’t invest in them!).

CONSTITUTIONAL LAW

Is government secrecy “presumptively illegitimate”?

Yes, says Jack Goldsmith in a comment on Kinsley’s review of Greenwald’s book on Snowden:

I think Kinsley is also wrong about the normative question of who should decide.  The government should not have the final say about which of its secrets is published. Government action undisclosable to the American public is presumptively illegitimate. We tolerate secrecy to some degree because it is necessary for national security.

He continues:

But in a constitutional democracy where the People ultimately rule, secrecy from the People is aberrant (for they cannot govern what they do not know), and it demands special justification (thus the presumption against its legitimacy).

All of this sounds like it must be right until you think about it for more than a few seconds. In fact, government secrecy is pervasive, and it goes well beyond national security.

For example, the government’s records about everyone’s finances, collected by the IRS and other agencies, are secret. So are medical records for people in Medicaid, Medicare, and the VA hospital system. Employment files for millions of federal employees including military personnel–secret. Public school teachers’ evaluations of our children–secret. Social workers’ judgments about clients–secret. Deliberations of government officials–regulators, legislators, judges–secret. Evidence gathered in criminal investigations never used at trial–secret. Trade secrets and other private information collected by courts and regulators–secret. Algorithms and policies used to decide who to audit and investigate, where to set up roadblocks or hide plain-clothes police officers–secret. Security arrangements in government facilities–secret.

All of this secrecy requires a “special justification,” of course. But so does disclosure. If the government discloses my financial records to The New York Times, it will be asked to provide a justification. Everything the government does needs a (“special”) justification.

Now, to be sure, there are varying levels of secrecy. Sometimes secrets can be discovered through litigation; sometimes they are disclosed for policy purposes; sometimes they are disclosed as a matter of course after the passage of time. Indeed, government secrecy is almost always temporary–sometimes lasting only weeks or months, sometimes lasting years. But as a matter of practice as well as formal law, most of what the government does is secret for the period of time during which it matters, and we seem quite comfortable with that fact.

How can the people “rule” when so much of what the government does is secret? There are several answers. One is that the people can make rough judgments about overall outcomes–the healthiness of the economy, the existence of war, etc.–and cast their votes on the basis of those judgments, without knowing the details of government action that produced them. Another is that because the government is itself composed of people, and those people are autonomous, secret actions that are highly controversial or objectionable are likely to be leaked, or even blocked before they are put into place. A third is that review systems are set up within government. Whether or not the right balance has been struck is a difficult empirical question, and not one that is answered by the slogans of the founders.

MISC.

Minors illegally entering the United States and the Dream Act

unacc childrenThe New York Times reports an upsurge in the number of unaccompanied minors who are entering the United States illegally across the southwest border. I found the data here, and produced the graph above. The data are through May, and so for 2014 I indicate the actual number as well as an estimate through the end of the fiscal year.

What is the source of this wave of illegal migration? The obvious explanation, documented anecdotally in the Times article, is that people living in (mainly) Central America believe that the U.S. government will not deport minors, based on President Obama’s implementation of the Dream Act criteria and other immigration policies.

The administration blames rising crime rates in central America. But while Honduras remains a very dangerous place, homicide rates peaked in El Salvador and Guatemala years ago, and have been declining over the period in which the migration of unaccompanied minors to the United States rose.

INTERNATIONAL LAW

Bond v. United States

 

The Supreme Court ducked the issue raised by this case–whether there are constitutional limits on the federal treaty power. I wrote about this case in Slate a while back. The question was whether a woman who tried to kill or harm her husband’s lover with some chemicals could be prosecuted under a federal statute that implemented the Chemical Weapons Convention. The majority doesn’t think that Congress intended the statute to reach ordinary criminal behavior–or won’t assume otherwise unless Congress is clear that it wants to disregard the normal division of police powers between federal government and states.

Justice Scalia (along with Alito and Thomas) think that the statute is clear (and maybe it is), and therefore the constitutional question cannot be avoided. And they think that the U.S. government lacks the authority to enter a (non-self-executing) treaty that regulates matters that fall within a state’s traditional police powers. (A self-executing treaty is presumably valid to the extent that Congress independently possesses the authority to regulate domestically.)

Why not? Because if the treaty power is unlimited, then the United States and Latvia could enter a treaty that requires each country to block people from carrying guns near schools. This is not my example but Scalia’s (no joke; see p. 13).

The United States and Latvia have not in fact negotiated such a treaty. Why not? Could it be that countries do not enter into treaties that regulate internal matters because they have no reason to do so?

Scalia does not identify any real treaty that he thinks the U.S. government entered into in order to evade constitutional limits on its powers. Surely, he doesn’t think that the federal government entered into the Chemical Weapons Convention so that it could prosecute people who attack each other with household chemicals.

The unstated target of the opinion is the international human rights treaty. Those treaties ban all kinds of police-powers-related stuff. The Senate ensured that they were not self-executing, but I suppose that the next time Democrats control the government, they could pass laws that implement them. At least in theory, a Democratic sweep could result in ratification of a human rights treaty that bans the death penalty, and then implementation of it through a federal statute. Not likely to happen anytime in the next few decades if ever, but you can’t fault Scalia for failing to think ahead.

INTERNATIONAL LAW

Putin’s triumph in Crimea: implications for international law

As the dust settles on the Ukraine crisis, we should ask how it might affect our understanding of international law. Various  theories of compliance with international law must contend with the fact that Russia violated international law and got away with it.

No one has ever argued that countries never violate international law. The argument is always that if they do, they incur a cost above and beyond the costs inherent in the activity that constitutes a violation. Violation of the law itself brings with it special harms to the violator. Is that the case with Russia?

1. Retaliation? The West imposed sanctions on Russia but by all accounts those sanctions were trivial.

2. Reputation? It is possible that Russia’s reputation has suffered. Will countries now be less willing to enter treaties with it? Unfortunately, it is impossible to tell. But Russia recently entered a Eurasian Economic Union. The other two members don’t seem bothered by Russia’s law violations. Nor does China. Or even Germany.

3. Utility losses? Many theories, if taken literally, suggest that Russian officials, perhaps Putin himself, must have overcome reluctance to violate norms that they have internalized because those norms are fair, or network or conformity effects or some such thing exist. Any evidence for this? No, but also hard to imagine how we would find any.

It is simpler to recognize that international legal norms outstripped the interests of countries, and so there was no incentive to uphold them.

INTERNATIONAL LAW

Did Putin blink?

Thomas Friedman sums it up:

Putin’s seizure of Crimea has weakened the Russian economy, led to China getting a bargain gas deal, revived NATO, spurred Europe to start ending its addiction to Russian gas and begun a debate across Europe about increasing defense spending. Nice work, Vladimir. That’s why I say the country Putin threatens most today is Russia.

Except that Russia’s economy was not weakened–the stock market was trading in the 1400s before the crisis and is trading in the 1400s today. The ruble is roughly unchanged, a hair lower. No one really knows whether China got a bargain or not; too much depends on unknown contingencies. But it is clear that Russia has benefited from closer relations with China. NATO hardly seems revived, the European countries are in turmoil and divided in their response to Russia, and as dependent on its gas as ever. Defense spending is not likely to increase, but even if it did, Russia would hardly care since it has no plans to invade Poland or Germany, and knows that they have no plans to liberate Crimea or provide military aid to Ukraine.

Against these trivial costs if that is what they are, consider Russia’s gains. It swallowed up Crimea in a flagrant violation of international law; it has ensured that the Ukraine government, whether nominally pro-Western or not, will give great weight to its interests; and, most important, it has sent a credible threat to all its neighbors that they will suffer if they  do not give deference to Russia’s interests, while making clear to the world that the West is weak and divided. Meanwhile, the establishment of the new Eurasian Economic Union is a “diplomatic triumph” for Putin, according to The Economist. And Western countries will seek a return to normalcy in their relations with Russia as quickly as possible, hoping that no one will remember Crimea.

Saying that Putin “blinked” is like saying that the boy who stole a cookie from a cookie jar blinked because he took only one cookie rather than all of them.

MISC.

Presidential power and national security: the prisoner exchange

A nice illustration of the limits of congressional power. Congress passed the National Defense Authorization Act of 2014, which provided that if the president wants to transfer Guantanamo detainees to foreign countries, he must give Congress 30 days notice, so that it can raise a stink. The president refused to do so before the prisoner exchange since the negotiations took place in secret, and he could not afford the risk that even if he could inform Congress secretly, a leak would occur.

The transfer may have violated the substantive provisions of the statute as well. The statute provides that a detainee can be transferred only if he is no longer a threat to U.S. national security or the transfer is pursuant to a court order. But there was no such court order, and the five Taliban members who were transferred appear to be dangerous people. So much for the statute.

As Marty Lederman notes, the president paved the way with a signing statement that said that the law conflicts with “separation of powers principles.” A nice echo of the Bush administration, and a reminder that the imperial presidency is bipartisan.

CONSTITUTIONAL LAW

The Executive Unbound: Climate edition

In The Executive Unbound, Adrian Vermeule and I argued that the Madisonian system of separation of powers has collapsed, and that the executive is mainly constrained by politics rather than law. The Obama administration has produced striking new examples–almost natural experiments, where it started by seeking a law from Congress then gave up and implemented the policy through executive fiat. First was the Dream Act, which would have legalized certain younger undocumented migrants. Congress refused to pass it, and Obama implemented it anyway by ordering ICE to comply with the rules that were never enacted.

And now it is climate. From the news sources I see, the EPA regulations to be announced Monday create the same kind of cap-and-trade system envisioned by the Waxman-Markey bill, which was also not enacted by Congress. The EPA regulations do not encompass as  wide a range of pollution sources as the bill did, but the legal authority behind them should give EPA the power to issue additional regulations that do just that.

INTERNATIONAL LAW

Vietnam likely to join the Philippines’ legal action against China

A lot of puzzles here. China, the Philippines, and Vietnam are parties to the UN Convention on the Law of the Sea, which provides for arbitration in case of disputes under that treaty. The Philippines initiated an arbitration against China in 2013 over the Spratly Islands area. Vietnam now has signaled that it will join that arbitration. The overall goal seems to be to obtain an authoritative rebuke of China’s broad claims over the South China Sea.

China has refused to participate in the arbitration. It has not exercised its right to appoint one of the arbitrators. It declares the arbitration illegitimate. Yet it is bound to arbitrate under the treaty, and the arbitration can proceed without it, as Julian Ku explains. Sean Mirski, writing in The National Interest, argues that nonetheless China fears an adverse judgment:

Yet despite the case’s practical insignificance, China has been frantically—and unsuccessfully—trying to stop it from proceeding. In January 2014, Beijing reached new levels of desperation, and allegedly offered to withdraw its ships from Scarborough Shoal if the Philippines would delay filing its memorial in the case. While that proposal should be viewed with suspicion—after all, Beijing has reneged on deals relating to the shoal before—it is nevertheless an extraordinary offer if true: China was willing to give up control of territory over which it claims sovereignty just to avoid a bit of bad publicity. So while China won the battle for Scarborough Shoal, it may have lost the war, all because Manila was able to find something that Beijing valued even more than the territory: its reputation for complying with international law. To China, its reputation is intimately connected to its long-term growth strategy, and the country cannot afford to advertise its total non-compliance with international law.

We will see. What is odd is that China was free to opt out of compulsory jurisdiction under the UNCLOS. Unlike many other countries, it didn’t opt out when it ratified the treaty. Could it now? I assume so.

Update–It was pointed out to me that UNCLOS parties can opt out of compulsory jurisdiction only with respect to some disputes, and not disputes over EEZ boundaries, sovereignty over islands, and the other matters that are at stake in the South China Sea. China did opt out of the compulsory jurisdiction for the unrelated matters in 2006. So if it loses the arbitration, it can only disregard the judgment. It could also withdraw from UNCLOS.

INTERNATIONAL LAW

China v. the Philippines

Philippines summons China's ambassador over South China Sea standoff

The New York Times published an article a few days ago describing the eviction of Philippine fishermen from the waters around Scarborough Shoal by the Chinese coastguard. This is yet another territorial conflict between China and its neighbors. China and the Philippines also dispute the nearby Spratly Islands.

The dispute over the Scarborough Shoal is a bit murkier than the others. Both China and the Philippines claim that they have exercised sovereignty over the area in various ways, going back decades. The Philippines seems to me to have the better argument but I have not looked at the materials closely. Otherwise, the fishing waters clearly fall within the Philippines Exclusive Economic Zone, as they lie within 200 nautical miles of the mainland (or technically the relevant baselines). Here is an academic article that, however, focuses on the Spratly Islands.

One question that arises is why China and its neighbors are suddenly having so many conflicts that are violent or near-violent. The conflicting territorial claims have existed for decades but violence has been sporadic until recently (aside from the China-Vietnam War). M. Taylor Fravel argues that China seeks to “consolidate” its claims by keeping other countries out of disputed areas. That would explain why China reacts aggressively–by sending in ships and planes–typically after the neighbors pass some law or take other actions that make clear that they consider their claims valid. But why are those countries provoking China in this way, and why now?

As Fravel suggests, China’s strategy is one of delay while claiming that the disputes are unresolved. The neighbors, by contrast, claim that there is no dispute and their claims are valid. China’s strategy thus seems more passive. And the reason is surely that time is on China’s side. China has grown more rapidly than all of its neighbors and looks likely to continue to do so for the near future, at least. As it becomes more dominant–both economically and militarily–its neighbors will be in a worse position to counter its claims in their shared waters.

Thus, it’s in the interest of those neighbors to settle the disputes sooner rather than later–so that they can establish populations and structures on, and acknowledged legal title, to these islands; plus to the minerals and fisheries. China will have difficulty dislodging claims backed by possession and variants of it even when it is considerably more powerful. The question of timing remains hard to answer, but it may be that only recently has it become obvious to the neighbors that China’s economic and military dominance will in the coming years allow it to prevail in any of its legal disputes, and so it is best to get those disputes settled sooner rather than later even at the risk of provoking military conflict.

Map and photo from The Telegraph.

INTERNATIONAL LAW

The conflict between China and Vietnam: law and power

Earlier this month, China sent an oil rig to waters off the Paracel Islands in the South China Sea (upper left box on the map). Vietnam sent ships to intercept the oil rig, but they were repelled by Chinese naval vessels. In Vietnam, outraged citizens rioted, destroyed Chinese property, and killed some Chinese nationals. China has threatened unspecified sanctions against Vietnam, apparently moving troops to the border, while Vietnam has moved to bring the riots under control.

The Paracel Islands are within Vietnam’s 200 nautical mile Exclusive Economic Zone and on its continental shelf, so minerals in the area belong to Vietnam under the UN Convention on the Law of the Sea, which both Vietnam and China have ratified. What is the basis of China’s claims? In fact, China has never provided an official legal justification for its claims. Two scholars, Florian Dupuy and Pierre-Marie Dupuy (gated), who scoured Chinese sources have suggested the Chinese claims are based on “history”: that China has always controlled the South China Sea, or the islands that dot it. But, as they explained, this type of argument is not recognized under UNCLOS or traditional principles of public international law.

China has not backed down but instead seems to be considering economic sanctions against Vietnam, which is highly dependent on Chinese trade, much more than China is on Vietnam. See this graph.

INTERNATIONAL LAW

A terrible decade for the Executive Branch in foreign relations cases before the Supreme Court?

That’s the conclusion of Ingrid Wuerth, writing at Lawfare. And she singles out Chief Justice Roberts as one of the main skeptics of an argument that I made with Cass Sunstein in 2007. We argued that courts should defer to the executive branch on issues touching on foreign relations, just as they do under Chevron and related doctrines in (domestic) administrative law cases. Our argument was normative, based on the executive’s responsibilities and expertise, but we argued that it was consistent with the cases (a widespread view at the time). Wuerth notes that over the last decade the Court  has discounted the executive’s views in numerous cases, including Kiobel, Morrison, Medellin, BG Group, and Zivitofsky, plus some early war-on-terror habeas cases.

All of this raises some interesting questions. One is whether the Court has in fact cut back on executive power or just hasn’t advanced it as much as the executive would like. A rule that the executive always wins is not the same as a rule of broad but not unlimited deference.

But assuming Wuerth is right, what’s the explanation? Some hypotheses:

1. The executive has lost prestige, thanks to its excesses against Al Qaeda, its failures in Afghanistan and Iraq, and perhaps even a perception that it has gone too far domestically.

2. The Court has gained confidence despite declining popularity, maybe because some aggressive decisions have not spurred pack-the-court style backlashes or because the executive and legislative branches are too divided to counter the Court.

3. The anti-executive tendency is the result of temporary partisan alignments. The Court was somewhat more liberal during the Bush administration and so perhaps uneasy with some of his policies; now right-wing justices are looking for ways to undermine Obama.

4. The justices share the public’s view that the U.S. should withdraw from many of its foreign commitments and turn inward. Weakening the executive is a step in that direction.

5. Originalism/formalism/textualism is in the air, and ( as scholars have long agreed) the modern system of executive power does not draw much support from the text of the Constitution or founding-era understandings.