Containing China Under a Biden Administration:
November 29, 2020

President-elect Joe Biden has a daunting task before him: handling the nascent ‘second Cold War’ with China. Earlier this year in the Fall, China was becoming increasingly aggressive with the nearby island of Taiwan, a self-governing country that China maintains is neither independent nor self-governing but part of China. The increase in tensions has been fueled—in part—by President Trump’s choice to sell advanced weaponry to the island nation, in hopes of better preparing it for conflict with China.

Taiwan plays a critical role in the larger power struggle between China and the United States; Taiwan is proof that the American ideological agenda can work in Asia. The Chinese Communist Party’s (CCP) position is that democracy is neither viable nor in the best interests of the citizenry in China. Chinese President Xi Jinping maintains a stranglehold on nearly all aspects of Chinese society, clamping down on both internal political divisions and divergent cultural groups like the Uyghurs, Falun Gong, and Tibetans. Taiwan is evidence that economic growth, social order, low levels of corruption, and democracy can coexist in Asia. Taiwan has a score of 93/100, compared to China’s 10/100 on the think tank Freedom House’s most recent Global Freedom Scores list. 

China is also waging an economic Cold War against U.S. interests through their Belt and Road Initiative and other aggressive foreign investment tactics. China has a strategy of debt trap diplomacy in which they seek to make borrowing countries massively indebted to them to increase their leverage. This is most concerningly seen in Sri Lanka where China used its massive credit and leverage to compel Sri Lanka to give them a key port in the Indian Ocean in 2015. The Chinese government has directed similar pressure at the Association of Southeast Asian Nations (ASEAN) to try to cement their regional economic hegemony. President-elect Biden must combat China’s ambitious expansionism and prevent the ASEAN nations from becoming overly indebted to China. Mr. Biden ought to use Sri Lanka as a cautionary example of what China’s economic plans for the region are and juxtapose it with Taiwan: an excellent example of what economic, military, and democratic cooperation with the U.S. can yield. 

How Mr. Biden goes about combating climate change will also play an important role in the new Cold War with China. China is the largest polluter in the world with nearly double the annual CO2 emissions of the U.S, according to data from the Union of Concerned Scientists. Mr. Biden has made clear that he intends to make climate change a key issue of foreign policy and national security, making it another theater for tensions with China. However, the appointment of former Secretary of State John Kerry as Mr. Biden’s climate czar has the potential to harm our ability to adequately outpace China; Mr. Kerry is notorious for his inability to drive a hard bargain. A survey by Foreign Policy Magazine and the College of William & Mary of 1,615 international relations scholars ranked Mr. Kerry the least effective secretary of state in the last 50 years. If Mr. Kerry is given carte blanche to pursue climate negotiations with China that do not adequately serve the U.S. interests in the region, he may severely complicate our ability to contain Chinese economic and military expansion.

Mr. Biden will enter office at a crossroads in Sino-American relations; he will need to make a choice about whether to prioritize climate goals—negotiated by a frequently ineffective diplomat—or a long-term strategy of Chinese containment and democratization in Southeast Asia. President-elect Biden’s selections for other key national security positions in his cabinet send hopeful signals that there will be some experienced diplomats who know how to play hardball with China to protect our interests and the interests of our allies.

Saving the Court:
November 15, 2020

The confirmation of Justice Amy Coney Barrett to the Supreme Court has highlighted the great dangers facing the Court today: partisanship. Following the hypocritical actions of Senate Majority Leader Mitch McConnell (R-KY), who spearheaded the confirmation of Justice Barrett 7 days before the election while having refused to even consider Judge Merrick Garland, President Obama’s nominee, well over 200 days before the 2016 election, many on the left began to call for President-elect Biden to ‘pack the court.’ Meanwhile, the right has been similarly guilty of politicizing the courts, most notably through grossly partisan behavior surrounding the confirmation of Justice Brett Kavanaugh. It is of the utmost importance that the judicial system remain apolitical; in this time of great polarization the courts must maintain their legitimacy and their ability to administer justice without political bias. 

The cries to pack the court signal a willingness by some on the left to fully abandon any hope of an apolitical judiciary. To establish a precedent of court-packing would corrode our democracy by ensuring that presidential administrations seek out judges based on political ideology, instead of jurisprudential qualifications, constantly modifying the number of seats on the Court to ensure a majority. In the 1930s President Franklin Delano Roosevelt attempted a similar measure. Roosevelt proposed the Judicial Procedures Reform Bill of 1937 which aimed to add one justice to the Supreme Court for each sitting judge over the age of 70 and 6 months. Roosevelt sought to secure a block of politically motivated judges who would overturn the Court’s previous rulings against his New Deal programs. Most recently, in the case of New York State Pistol & Rifle Association, Inc., et al., v. City of New York, New York, et al., five Democratic Senators—Sheldon Whitehouse, Mazie Hirono, Richard Blumenthal, Dick Durbin, and Kirsten Gillibrand—filed an amicus curiae brief with the Supreme Court. The final paragraph of the brief read, “The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be “‘restructured in order to reduce the influence of politics.’” This prompted intense backlash; Justice Samuel Alito rebuked the senators’ brief in his speech at the Federalist Society’s 2020 National Lawyers Convention, declaring:  “It was an affront to the Constitution and the rule of law.” The threat by five senators to ‘restructure’ the court, should it fail to rule as they wish, is a blatant transgression against the independence of the judiciary and establishes a pernicious precedent that risks the total failure of checks and balances. 

The right similarly has their fair share of meddling in the non-partisanship of the courts. Justice Kavanaugh’s confirmation hearings gained national infamy as they quickly descended into partisan bickering. Kavanaugh came off as “unhinged,” according to Richard Wolffe of The Guardian, accusing Democrats on the Senate Judiciary Committee of “a calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump and the 2016 election.” This kind of explicit partisanship runs counter to the practice of principled political neutrality on the bench. Moreover, Senate Republicans—led by McConnell—held over 110 judicial seats open in the waning days of Obama’s presidency to be filled by Trump appointees, according to the Center for American Progress. This underhanded behavior by McConnell understandably elicits a desire in some on the left to pack the court, however, politicians must transcend this dangerous tit for tat partisanship and work to preserve the legitimacy and independence of the Court.

In 1986 the late Justice Antonin Scalia was confirmed in the Senate unanimously, in 1993 the late Justice Ruth Bader Ginsburg was confirmed by a vote of 96 to 3. To do justice to the Constitution and the independence of the courts, we must strive to return to a mindset where nominees, despite differences in judicial philosophy, are judged by their merits and not their perceived policy stances. Administrations should nominate non-partisan, upstanding people who have a record of apolitical and principled behavior. As Alexander Hamilton wrote in Federalist No. 78, “This independence of the judges is equally requisite to guard the Constitution and the rights of individuals.”

Election Laws Need to Change:
November 9, 2020

President Trump’s loss to presumed President-Elect Joseph Biden has resulted in a whirlwind of lawsuits, alleging misconduct regarding mail-in ballots. One of the central cases on the Supreme Court’s docket is Republican Party of Pennsylvania v. Kathy Boockvar, Secretary of Pennsylvania, et al. This case highlights the deeply flawed state of America’s voting system and offers insight into how we ought to adjust our system to accommodate the changes of the 21st century and ensure maximized enfranchisement within the U.S.

The Boockvar case involves a petition for a writ of certiorari, judicial review of a decision made by a lower court or agency, by the Pennsylvania GOP  in response to a ruling by the Supreme Court of Pennsylvania that ballots would be treated as timely if they were postmarked before, or the day of the election, provided that they arrived within three days of the election.  

The Pennsylvania GOP’s case relies on two key arguments. First, the Supreme Court of Pennsylvania has no constitutional right to interfere in the state legislature’s planning of the election (the legislature required that mail-in ballots be received on election day by 8 p.m.). And second, the Pennsylvania Supreme Court’s decision violates Title 3 of the U.S. Code, Chapter 1, Sections 1, 2 (relating to the date for selecting electors for the president and vice president). While no decision has been made on this case yet, the Supreme Court did deny a motion to expedite consideration of the case prior to the election. 

Justice Alito, joined by Justice Thomas and Justice Gorsuch, wrote: “there is a strong likelihood that the State Supreme Court decision violates the Federal Constitution.” Justice Alito holds that the Constitution entrusts power to the state legislatures to determine the manner of elections, not state courts. He referenced Article 1 Section 4 Clause 1 of the Federal Constitution which says that state legislatures are to determine the time, place and manner of Federal elections. The two arguments against the Pennsylvania Court’s extension of the deadline coalesce into one argument as Article 2 Section 1 Clause 4 of the Federal Constitution gives the Federal Congress the right to determine the time for choosing electors. In 1844 Congress did this which is outlined in the aforementioned section of Title 3 of the U.S. Code. I tend to agree with Justice Alito, as the Federal Constitution and the Federal Code grant all of the authority to state legislatures, not state courts.

 The Boockvar case has elucidated a dire need for election law reform at the Federal level. Since 1992 more people have been voting by mail and early every year, according to the MIT Election Lab. This signals the necessity for legislation that creates a universal standard for these practices. Different state legislatures in different states will choose different allowances regarding receipt of mail-in ballots, perpetuating a system in which everyone does not have an equal opportunity to vote. 

 Florida’s new poll tax-esque demand for felons wishing to register to vote also exemplifies the need for reform. Florida’s amendment to their state constitution, dubbed ‘Amendment 4’ allows convicted felons who have served the terms of their sentence to vote in elections, excluding those convicted of sex offences and murders. The amendment also included a highly controversial exception, a requirement that formerly incarcerated Floridians pay all of their outstanding court debt prior to regaining their franchise. This law directly clashes with the 24th Amendment of the Federal Constitution that holds that citizens’ right to vote may not be abridged by a “failure to pay any poll tax or other tax.” Aside from the gross unconstitutionality of Amendment 4’s provision, Florida further highlights that a renewed national standard for voting and elections must be created.

 Congress ought to amend Title 3 with legislation that modernizes the electoral guidelines to allow every registered voter in every state the same ability to vote. Congress should also include provisions that create a universal standard regarding the enfranchisement of felons across the nation to ensure equal access to enfranchisement in the U.S.