News & Events

China & US Must Cooperate to Lead World Out of Coronavirus Danger

By James B. Steinberg

(Nikkei Asian Review | May 9, 2020) The international response to the COVID pandemic is a watershed moment in the evolution of the international order. At time when the value of global interdependence and international cooperation is already under assault from politicians and popular movements around the world, national leaders and international institutions face a fundamental test: can they turn back the growing tide of inward-looking, zero-sum policies to meet this critical challenge?

It would seem self-evident that the transnational nature of the threat, both to health and to prosperity, should trigger actions emphasizing international cooperation. Yet to an alarming degree, the response has been the opposite. For too many countries, the instinct has been to pull up the drawbridges and point fingers, seeking national solutions at the expense of international collaboration.

From the earliest days, China turned down offers of help from international organizations and foreign experts; refused to freely share complete information; and petulantly blocked Taiwan from World Health Organization emergency meetings.

U.S. President Donald Trump’s administration, similarly, proposed banning travel, halting immigration and cutting off funds for the WHO, more focused on deflecting political fallout than developing an effective response … MORE

James B. Steinberg is University Professor of Social Science, International Affairs, and Law and an SPL faculty affiliate.

“Uncharted Territory”: Hon. James E. Baker Helps NYT Explain Trump’s Order to Open Meatpacking Plants

The Trump Administration’s Legal Moves to Prevent a Meat Shortage, Explained

Contrary to misunderstandings, the actions fall short of ordering meatpacking facilities to reopen despite Covid-19 outbreaks among workers.

(The New York Times | April 29, 2020) The Trump administration moved this week to try to mitigate the effects from the shutdowns of beef, pork and poultry processing facilities amid the Covid-19 pandemic that have potentially endangered an important part of the nation’s food supply chain. But the policy moves have generated confusion.

“We are, in many regards, in uncharted territory,” said James E. Baker, a former legal adviser to the National Security Council and a professor of national security law at Syracuse University …

… While some of the meatpacking plants have shut down voluntarily after outbreaks to clean their facilities, others have been ordered closed by local health officials. But those closures happened before the federal guidelines. Going forward, if state or local regulators created stricter rules, this maneuver could provide a basis to argue to a judge that the federal standards pre-empted the local ones.

How that would go is an open question. A 1950 ruling from a Federal District Court in Minnesota suggested that if there were a conflict with local rules, a Defense Production Act arrangement would prevail. But Mr. Baker noted that the act’s allocation powers “have not been used in a long time, nor have they been fully litigated.”

Still, he added, it might not be put to the test because there would also be pressures on all involved — the federal and state governments, companies and workers — to reach an accommodation rather than get mired in court …

Read the full article.

 

Background Briefing: William C. Banks Assesses the Possibility of Martial Law

Is Trump Both the Arsonist and the Fire Brigade Sparking Insurrection Then Declaring Martial Law?

(Background Briefing | April 19, 2020) We look further into Trump’s encouragement of insurrection, aided and abetted by his propaganda mouthpiece Fox News, and speak with William Banks, Distinguished Professor Emeritus at Syracuse University College of Law who is the author of Soldiers on the Home Front: The Domestic Role of the American Military and has an article at The AtlanticMartial Law Would Sweep the Country Into a Great Legal Unknown“.

He joins us to discuss how Trump is both the arsonist and the fire brigade igniting the spark of insurrection while possibly declaring martial law to put out the “Reichstag Fire” he has lit. Unfortunately while unprecedented, this prospect is not entirely hypothetical given Trump’s hatred of the press which he would shut down, and his fear of losing the election, which he would suspend.

Hon. James E. Baker: A Marshall Plan for Public Health (ABA Podcast)

The DPA: A Marshall Plan for Public Health with Judge James Baker

ABA National Security Law Today | April 9, 2020

Judge James Baker is the the Director of the Syracuse University Institute for Security Policy and Law, former Chief Judge of the US Court of Appeals for the Armed Forces, and former Chair of the Standing Committee on Law and National Security.

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William C. Banks: Beware the Military on US Soil

Beware the military on US soil: City and state leaders should be careful what they wish for

By William C. Banks 

“de Blasio and other New Yorkers are still urging a more robust federal military response. Tread carefully.”

(NY Daily News | April 6, 2020) By and large, New York officials have exhibited admirable leadership and clear-headed decision making in response to the worst public health crisis in a century. With staggering numbers of COVID-19 infections and badly overstretched hospitals, New York City and surrounding communities are in dire need of help — and Gov. Cuomo and Mayor de Blasio have been properly beseeching the White House to commit federal resources to help stem the tide of the virus.

But as it involves the use of the military, this response should have clear limits. Legally and historically, we limit its engagement on U.S. soil for very good reason.

Although Cuomo called up New York National Guard forces early in the crisis to help with the expected medical surge, and although the USNS Comfort has arrived to provide hospitals with desperately needed surge capacity, de Blasio and other New Yorkers are still urging a more robust federal military response.

Tread carefully.

There is no doubt that the U.S. military has always played a key role in society. Soldiers have always stood ready to use their special training, equipment and discipline to help out in emergencies when no one else could.

Most of the time, however, America’s military forces have remained in the background, waiting for direction from civilian leaders to respond to crises and then only in limited ways …

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Why Is Trump So Timid With the Defense Production Act?

By the Hon. James E. Baker

“Why isn’t the government bringing its full arsenal to the fight?”

(The New York Times | April 3, 2020) Every Marine knows better than to pull a knife in a gunfight. But so far, that appears to be the federal government’s approach to battling Covid-19. The president has “invoked” the Defense Production Act, but the government has not used the full authority of the act. There is a difference between invoking a law and using it, just as there is a difference between talk and action.

Governors and health officials tell us that there is a profound gap between the protective equipment, hospital equipment and testing resources that are needed (and will be needed) and what is available (or in the pipeline). Bill Gates reminds us that we will need to produce millions, perhaps billions, of doses of vaccine in 12 to 18 months. This isn’t a passing crisis; we will need more of everything in two months, six months and maybe years.

Don’t let debate over the details of General Motors’ and Ventec’s honorable effort to build more ventilators hide the bottom line: The federal government has all the authority it needs to close the supply gap, allocate resources among states, and prepare for the production and distribution of the vaccine to come. Until the federal government demonstrates — with statistics, contracts and timelines — that the gap is closed and the vaccine pipeline is ready, we should ask: Why isn’t the government bringing its full arsenal to the fight? …

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William C. Banks in Ms.: Voting in a Time of Pandemic

Voting in a Time of Pandemic: The November Election Must Go on as Scheduled

by Stephen Dycus & William C. Banks

The process is entirely out of the president’s hands.

(Ms. | March 27, 2020) With polls showing Trump trailing former Vice President Joe Biden—his likely Democratic opponent in the November election—it is widely rumored that the president might seek ways to postpone the election in order to remain in office.

Such a move would be blatantly illegal: It would place the government of the United States in the hands of one man, abridge the cherished right of those in the U.S. to choose their leaders, and threaten democracy itself.

The Power to Control Elections Lies with States and Congress

The Constitution entrusts the timing and conduct of federal elections entirely to Congress and the states. According to Article I, states prescribe the times, places and manner of selecting senators and representatives—although Congress may change those rules.

The president has no role to play in their election.

Election of the president is a bit more complicated, but here again the Constitution is clear. Under Article II, the President’s term is limited to four years—although she may be reelected for a second four-year term.

The same article gives Congress the job of determining a time for “chusing the Electors,” who are appointed by each respective state, and whose role in selecting the president is spelled out in detail in the 12th Amendment.

The process is entirely out of the president’s hands.

The 20th Amendment to the Constitution says the President’s term ends on January 20th, and the term of her successor “shall then begin.” It also says that if a president has not been chosen by that date, and no vice president has qualified to serve instead, Congress may either designate someone to act as president or may prescribe a new procedure for selecting one.

Invoking this provision, the Presidential Succession Act of 1947 states that if no one has qualified to serve as President, the Speaker of the House—or others in a specified line of succession—shall serve instead …

Voting in a Time of Pandemic: The November Election Must Go on as Scheduled

William C. Banks Discusses Emergency Powers on ABA National Security Podcast

Emergency Powers & COVID-19 with William Banks

William Banks is the Chair of the ABA Standing Committee on Law and National Security Advisory Committee and a Distinguished Professor and Emeritus Professor at the Syracuse University College of Law and the Maxwell School of Citizenship and Public Affairs, and the author of several constitutional law textbooks.

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William C. Banks: Martial Law Would Sweep the Country Into a Great Legal Unknown

By William C. Banks & Stephen Dycus

“So what would happen if, amid the panic of the coronavirus pandemic, the president tried to declare martial law?”

(The Atlantic | March 27, 2020) The last time martial law—military control of the government—was declared in the United States was December 1941, just hours after the Japanese attack on Pearl Harbor. The territorial governor, acting under a turn-of-the-century statute, handed the government of the Hawaiian islands over to the commander of U.S. forces there. The military governor, as he styled himself, immediately ordered the closure of courts, shut down schools, froze wages, suspended labor contracts, and imposed censorship of newspapers, radio, and civilian mail. He also decreed a curfew and blackout, as well as a ban on the sale of alcoholic beverages—a wildly unpopular measure that was quickly reversed. Despite the fact that there was no threat of a Japanese invasion after the Battle of Midway in 1942, martial law remained in place for another two years.

In 1946, after the war ended, the Supreme Court ruled in Duncan v. Kahanamoku that the statute authorizing martial law in Hawaii did not enable military trials of civilians, and it warned against the “subordination of executive, legislative and judicial authorities to complete military rule”—but it offered no further guidance about the circumstances that would justify a declaration of martial law, or about the consequences of such a declaration. Nor has Congress ever tried to clarify the criteria for or limits of martial law.

So what would happen if, amid the panic of the coronavirus pandemic, the president tried to declare martial law? Without question, military forces directed by state governors—and perhaps even, in extreme cases, by the president—may be uniquely able to help get us through the current crisis. At least 20 state governors have now called up their National Guard to assist with delivery of food and medical supplies, clean public facilities, and adapt some of those facilities to house patients if hospitals become overwhelmed. Guard personnel could also help enforce quarantines ordered by state governors, and even arrest violators. But their role is to support, not replace, civil authorities. The states’ legal power to do all this is clear; it is not martial law …

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