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We also argue that our assessment of competing accounts should consider lawmakers’ calculations about the likelihood their messaging behavior leads to change on the part of the Court. In other words, individual lawmakers may Court curb in order to send messages to the Court itself, attempting to affect its behavior. Our reasoning here is rooted in the calculations that members of the majority make about the value of sending a message to the Court. We argue that members of the majority have a stronger incentive to Court curb when their party is distant from the Court because their proposals, as opposed to ones from the minority party, are more likely to reach the floor (Anderson, Box-Steffensmeier, and Sinclair-Chapman 2003; Cox and McCubbins 2002).6 Since the Court is particularly concerned about attention-generating proposals, which spark widespread backlash against the institution (Clark 2011, 77), majority-initiated proposals represent more credible threats to the Court's support due to majority-party agenda control. In other words, members of the majority party have an additional incentive to ramp up their threats against a distant Court because the judiciary sees threats from the majority as more credible, making it more likely that it will adjust its behavior as a result. We posit that majority-party members are comparatively more likely to Court curb than minority members when their party is distant from the Court due to the fact that the institution perceives these majority threats as more credible.

For example, in 2006, Congress made a highly credible threat against the Court: it passed a piece of Court-curbing legislation that stripped the federal judiciary of jurisdiction over writs of habeas corpus for “enemy combatants” in the War on Terror. This effort was spearheaded by Senate Majority Whip Mitch McConnell, reached the floors of both chambers, and passed overwhelmingly by majority-party Republicans in the House and Senate. Because McConnell's party held preferences that were moderately distant (i.e., more conservative) from the Roberts Court, our logic suggests that McConnell would be more likely to forward Court-curbing legislation than if he were a member of the minority party, all else equal. This is because a member of the majority party is likely to see additional value in sending a message to the Court since he perceives the proposal as a viable signal to the Court of a potential institutional curtailment, rather than solely a signaling device to his constituents. Therefore, we anticipate that when the Court is distant, majority-party members see additional value in Court curbing and are thus more inclined to offer such proposals than their minority-party counterparts.7

First, members of the judiciary consider the actions of other political actors when the judiciary makes decisions. Members of the judiciary act strategically based on beliefs and observations of actions by the legislature and/or public (Vanberg 2001, Vanberg 2005, Whittington 2003). When the judiciary believes it has low levels of approval from the public and the judiciary sees the legislature attempting to court curbing, the judiciary is less willing to challenge the actions of the legislature.1 In such a circumstance, the judiciary fears future retaliation that has a greater likelihood of being enacted.

In the US constitutional system, the executive branch generally conducts foreign relations. But in recent years, the nonexecutive branches--the judiciary and Congress--have challenged the exclusivity of the president's authority to conduct foreign relations by opening direct channels of communication with foreign governments' executive branches. For example, in January 2015, Speaker of the House John Boehner invited Israeli Prime Minister Benjamin Netanyahu to address Congress, breaking protocol by failing to coordinate with the White House. Two months later, forty-seven Republican senators, led by Senator Tom Cotton, penned a letter to the leaders of Iran in an attempt to undermine the executive branch's negotiations to halt Iran's nuclear program. More recently, Senator John McCain independently reached out to the Australian ambassador to smooth over relations after President Donald Trump "abruptly ended" a call with Australian Prime Minister Malcolm Turnbull.

These contacts challenge conventional understandings about the constitutional separation of powers. Although the judiciary decides cases related to foreign affairs, and Congress exercises fiscal, treaty, and other powers that affect foreign relations, generally the executive branch actually conducts foreign relations, interacting directly with representatives of foreign governments' executive branches. The Netanyahu invitation and other examples deviate from this model. Moreover, courts, Congress, executive officials, and commentators lack a framework--much less an agreed-upon framework--for assessing whether the actions nonetheless comply with the Constitution.

The legal principles established by the Framers and enshrined in the Constitution are a source of attraction only if we have meaningfully adhered to them in practice. Part II will posit that the Supreme Court’s robust evaluation of cases in the wartime context suggests that the nation has been faithful to the rule of law even in times of national stress. As support, this part will provide examples of cases involving challenges to the American response to wars both before and after 9/11, the discussion of which will exhibit American respect for the rule of law. While the substantive results of some of these cases may be particularly pleasing to Muslims, for instance the extension of habeas protections to detainees in Guantánamo,30 this part will make clear that it is the legal process—not substantive victories for one side or against the government—which is the true source of American legal soft power.

If it is the case that the law may be an element of soft power conceptually and that the use of the legal process has reflected this principle in practice, the conclusion argues that it would benefit American national security for others in the world to be made aware of the American constitutional framework and the judiciary’s activities related to the war. Such information would make it more likely that other nations and peoples, especially moderate Muslims, will be attracted to American interests.

An initial puzzle concerns the moral status of the Declaration itself. If the Declaration merely embodied universal or widely held moral views, then it is not clear what the Declaration adds to this prior moral consensus. Writing down our moral views on a piece of paper should not make them any stronger. On the other hand, if the Declaration deviates from moral views, then presumably the Declaration would not have much moral force. 77

<<FOOTNOTE 77>>

Judges and legal elites openly acknowledge this link between public will and judicial efficacy. For example, the Judicial Conference of the United States reported in 1995 that “[i]f the federal courts alienate the public and lose its support and participation, they cannot carry out their appropriate role.” Likewise, speaking at a conference on judicial independence, then-Chief Justice William Rehnquist (2003) noted that past preservation of the independence and integrity of the Court has been “dependent upon the public’s respect for the judiciary” and that “[t]he degree to which that independence will be preserved will depend again in some measure on the public’s respect for the judiciary.”

What is more, speaking with judicial “insiders” reveals further evidence of the importance of judicial legitimacy. The following quotes are excepts from interviews I conducted with Supreme Court justices and former law clerks.

A standard insight of the signaling theory literature in economics is that as a general matter, a statement is credible when it is accompanied by a costly action - in particular, an action that is more costly for a dishonest speaker to engage in. 66 Passing resolutions is costly: it takes time that could be used for other things – passing legislation, engaging in constituent service, meeting supporters, enjoying leisure. These other activities benefit members of Congress either directly or by improving their chances for reelection. If Congress spends resources to enact a resolution disapproving the Iraq war, observers will rationally infer that Congress cares more about this issue than it cares about other issues for which it does not enact resolutions. In turn, people who are taking actions with an eye toward how Congress might, in the future, regulate the Iraq intervention or other military interventions would do well to take note of the resolution.

There is another signaling mechanism that can explain why soft statutes are credible. Suppose that Congress can benefit from resolutions because they let the President know Congress's view on a particular issue - say, budgetary priorities. If the President knows Congress's view, he can take account of it when formulating a budget prior to its submission to Congress. By doing so, the President can avoid a subsequent budgetary impasse that hurts both him and Congress. 67 Moreover, if the President takes the soft statute seriously, then Congress thereby reduces the first-mover advantage (however slight) that otherwise accrues from the President's ability to propose an initial budget.

Finally, we must consider the effect of Court curbing under the two configurations of Court-Congress alignment. Again, to do this, we must consider the net effect of Court curbing by taking the linear combination of the coefficients from Table 1. When we do this, we find that the net effect of Court curbing when only one Court-curbing bill is introduced is <<EQUATION OMITTED>> when the Court and Congress are aligned and <<EQUATION OMITTED>> when the Court and Congress are not aligned. We see a similar pattern when many Court-curbing bills (25) are introduced. In this case we find <<EQUATION OMITTED>> when the Court and Congress are aligned and <<EQUATION OMITTED>> when the Court and Congress are not aligned. What does this tell us? Very clearly, this result indicates that the effect of Court curbing on judicial decision making is strongest when the Court and Congress are ideologically aligned and weakest when the Court and Congress are ideologically opposed. This is precisely what was predicted by the theoretical model (Hypothesis 4). Because Congress has an increased incentive to “bluff” when it disagrees with the Court over policy, the Court will have a weaker incentive to respond to Court curbing from its ideological opponents than from its ideological allies.

We realize that more perfect union necessarily has many more meanings, discovered and still undiscovered, for us today. The words express the hope that 50 states covering an abundant swath of planet earth’s surface can cooperate. There is of course nothing simple about the challenge of cooperation between the governments of 50 states and the federal government. But this is part of what the endless work of forming a more perfect union entails. Today, more perfect union involves whether states can cooperate with each other and with the federal government over the biggest problems of our times, including a pandemic, economic crisis, public health, social justice, climate change, gun violence, terrorism at home and abroad, immigration and a long list of other pressing issues for humanity and our life on earth.

In July, 2020, protestors and local officials in Portland, Chicago, Seattle, Washington, D.C., Albuquerque, N.M., Louisville, Ky., Kansas City, Mo. and other American cities decried the Trump Administration’s use of federal force in cities dealing with protests and violence in the wake of the police killing of George Floyd. In the disorienting summer of 2020, amid pandemic, recession, racial tension, protest, violence, and heated calls for police reform, the stressors on federalism are manifold. The Preamble’s more perfect union is a dream in the sense that Martin Luther King, Jr. had a dream. It uses poetic-sounding language to express the unavoidable interdependency between We the People and their constituted governments, state, local and federal. It is a dream based on the hard stuff of interdependency in a world where one person’s plastic ends up on another person’s shore. Or where an individual’s infection ends up infecting a community. Abraham Lincoln used the famous house divided, biblical metaphor to express what’s at stake in our dream of union: “A house divided against itself cannot stand.” For the Preamble, for Lincoln and for us today, the hard work of cooperation, of getting along with each other, of working together, of sacrificing some self-interest is a practical necessity if the republic is to stand.

At the end of June, the conservative-dominated U.S. Supreme Court issued an explosive series of politically and ideologically motivated decisions designed to fundamentally reshape society. Over the course of just a few days, the Court struck down federal abortion rights, trampled on indigenous people’s rights, further eroded the separation between church and state, aided the proliferation of gun violence, and kneecapped the federal government’s ability to address climate change.

While shocking, these rulings are not surprising. In fact, they are part of a decades-long, highly successful war by the political Right to dismantle the mild regulatory and social democratic state that developed following the New Deal and World War II, and revive and reinvigorate private, elite (i.e. wealthy and white) control of society and the economy. While such efforts must be resisted, and the war is far from over, progressives can no longer avoid the fact that the contemporary model of regulating private enterprise and blunting the worst excesses of capitalism is failing — failing not because people aren’t voting the right way or because of changes in how we communicate, but failing because of its own structural limitations.

Panelists in another recent panel discussion on the cyberthreat to the grid disagreed with the widespread catastrophic thinking about it. “A nationwide blackout from a cyberattack is implausible,” said Caitlin Durkovich, assistant secretary for infrastructure protection at the Department of Homeland Security. While vulnerabilities exist, the utility industry has been working with local, state and federal government bodies for several years on prevention, detection, and recovery plans for a power grid cyberattack, Durkovich told listeners to the on the topic hosted by The Energy Times. Utility companies deal with penetration attempts every day, said Gerry Cauley, CEO of the North American Electricity Reliability Corporation (NERC), an organization of U.S. electrical grid operators. NERC’s third grid attack simulation in November 2015 included participants from electric utilities; regional and federal law enforcement, first response and intelligence agencies; and other utilities; and supply chain stakeholder organizations. NERC is planning its for November 2017. In the event of an actual cyberattack on the grid, the National Cybersecurity and Communications Integration Center in Arlington, VA would be the government’s control center. NERC has a representative at the center every day, according to a by The Hill. In the event of a cyberattack that disabled large areas of the power grid, the person from NERC would be the liaison between the Department of Homeland Security and the electric industry. Working together will be key, according to Cauley. “This is not anyone’s problem to address or be prepared for, but it is a unity of effort across different agencies at the federal government as well as a state role in terms of a crisis to be able to make sure that the public is safe,” he said. Industry and government are focusing on real-time automated anomaly detection of cyber threats, according to Edna Conway, chief security officer of the global value chain for Cisco Systems, Inc. “We’re seeing some of that in the age of the Internet of Things and Big Data calculations that allow an operational-level view (in) real time and awareness to things that may not yet mean a security breach but are anomalous and need further investigation.”

On balance, however, I do not think that even the extraordinary economic conditions we are witnessing today are going to have much impact on the likelihood of war. Why? First of all, if depressions were a powerful cause of war, there would be a lot more of the latter. To take one example, the United States has suffered 40 or more recessions since the country was founded, yet it has fought perhaps 20 interstate wars, most of them unrelated to the state of the economy. To paraphrase the economist Paul Samuelson’s famous quip about the stock market, if recessions were a powerful cause of war, they would have predicted “nine out of the last five (or fewer).” Second, states do not start wars unless they believe they will win a quick and relatively cheap victory. As John Mearsheimer showed in his classic book Conventional Deterrence, national leaders avoid war when they are convinced it will be long, bloody, costly, and uncertain. To choose war, political leaders have to convince themselves they can either win a quick, cheap, and decisive victory or achieve some limited objective at low cost. Europe went to war in 1914 with each side believing it would win a rapid and easy victory, and Nazi Germany developed the strategy of blitzkrieg in order to subdue its foes as quickly and cheaply as possible. Iraq attacked Iran in 1980 because Saddam believed the Islamic Republic was in disarray and would be easy to defeat, and George W. Bush invaded Iraq in 2003 convinced the war would be short, successful, and pay for itself. The fact that each of these leaders miscalculated badly does not alter the main point: No matter what a country’s economic condition might be, its leaders will not go to war unless they think they can do so quickly, cheaply, and with a reasonable probability of success. Third, and most important, the primary motivation for most wars is the desire for security, not economic gain. For this reason, the odds of war increase when states believe the long-term balance of power may be shifting against them, when they are convinced that adversaries are unalterably hostile and cannot be accommodated, and when they are confident they can reverse the unfavorable trends and establish a secure position if they act now. The historian A.J.P. Taylor once observed that “every war between Great Powers [between 1848 and 1918] … started as a preventive war, not as a war of conquest,” and that remains true of most wars fought since then. The bottom line: Economic conditions (i.e., a depression) may affect the broader political environment in which decisions for war or peace are made, but they are only one factor among many and rarely the most significant. Even if the COVID-19 pandemic has large, lasting, and negative effects on the world economy—as seems quite likely—it is not likely to affect the probability of war very much, especially in the short term.

Virtually all economists favor free trade. But we differ as to what the costs of trade restrictions might be. The decision of Harley-Davidson Inc. to shift more production overseas to Europe to avoid the impact of new tariffs presents a good opportunity to assess those costs – and the good news is that, so far, the economic costs of a trade war appear to be limited. It is a standard proposition in economics that trade, foreign direct investment and immigration are all potential substitutes for each other. If goods cannot cross borders, perhaps capital or people can. Both are alternative ways of reaping potential gains from trade. So when President Ronald Reagan imposed “voluntary” import quotas on Japanese autos in the 1980s, Toyota built more factories in the U.S. The end result was that U.S. consumers still got the cars, and without paying tariffs. You might think America enjoyed additional gains from the new jobs created, but much of that was given back through capital inflows, as a stronger dollar led to weaker exports. It was a form of market adjustment. By putting its European production in Europe, Harley is creating a similar tariff-neutralizing effect, reflecting the market's ability to adjust to an ill-conceived policy. In turn, we can expect that some European producers will place new plants in the U.S. or expand the old ones. Note that Harley already had plans to shrink its U.S. production, and it already was expanding into Brazil, Australia and India. So perhaps the result here isn’t so different from what might have happened anyway. Of course it isn’t always that simple. Let’s say that tariffs went up significantly between the U.S. and Malaysia. It might not be worth it for Harley or other producers to build new plants in Malaysia, since it is a relatively small market. The good news, if you could call it that, is that the U.S. is starting a trade war with the economically large European Union. That is precisely the place where, because the potential market is so large, companies will make more investment to offset the impact of trade restrictions. The movement of people is another partial substitute for standard foreign imports and exports. So if the U.S. further restricts French cheese, or the EU places additional limits on American beef imports, tourists adjust to limit the burden. (I don’t foresee a big increase in cross-Atlantic migration, although theoretically that is another possible response.) Even before Trump, the U.S. did not let in many French non-pasteurized cheeses. So when I go to France, the first thing I do is to buy a lot of those cheeses. Just as, I imagine, many French tourists in Texas sample the barbecue. Another striking feature of trade today is that it is increasingly based on cross-national supply chains. U.S. car production is heavily dependent on inputs from Mexico; European factories often buy their inputs from America; iPhone manufacturing in China is based on contributions from many nations, including the U.S., South Korea, Japan, the Philippines and Taiwan. There is a certain fragility to these arrangements, but they also mean the costs of small tariffs are likely to be absorbed by suppliers, rather than shutting down trade. That's because if you’ve spent years painstakingly constructing one of these international supply chains, you’re not going to let a few tariffs on one part of the chain shut you down. Instead, you are likely to just eat the loss and move on, because there is so much total value at stake. At the same time, very large tariffs and trade barriers now will have much higher costs, if they are capable of shutting down the entire supply chain and disrupting so many moving parts. Thus does a strange dynamic come into play in the global economy: Politicians start to feel they can impose small tariffs without disrupting production very much, or even necessarily inducing higher prices. They’re right – and that is exactly what makes this logic dangerous, because they may be tempted to push further and further on those tariffs, drawing ever close to the danger zone where the tariff really starts to bite. The biggest costs of the current trade war talk may come with China, because in that case there is talk of both higher tariffs and tougher restrictions on Chinese investment in the U.S. (and possibly vice versa). The market adjustments to higher tariffs just aren’t as potent in this context, in part because China still is not a proper and open market economy. Still, when you read about tariffs and trade wars, do not dismiss the power of institutions to adjust. One of the great virtues of markets is that it is harder to wreck them than you might think.

If the Chinese government expects resistance from a militarily strong United States and several mid-sized US security partners, Beijing is unlikely to fight for hegemony. There is a discernable pattern of caution in China’s behavior— China consistently seeks cheap gains while avoiding costly consequences. This pattern is in keeping with traditional Chinese strategic culture, which calls for indirect approaches to counter the moves of a strong opponent and eschews Pyrrhic victories. Despite consistently tough talk in recent years about a commitment to fight for Chinese territory,19 Beijing’s actions have been relatively risk-averse. The recent Chinese actions that some characterize as bold or assertive have remained below the line likely to trigger a military response from other countries. The Chinese government, for example, correctly assessed that the United States would not attempt to physically prevent the construction of Chinese military bases in the South China Sea. The patrols by PLA ships and aircraft around Taiwan and near Japanese islands are menacing signals, but they are clearly not attack runs. In disputed seas, firing on foreign vessels to disable or drive them away would likely bring retaliation in kind, so the Chinese have employed the less provocative but often effective tactic of ramming or threatening to ram. Chinese vessels have repeatedly damaged and occasionally sunk the boats of rival claimants in the South China Sea through intentional collisions, and in 2013, a Chinese ship maneuvered into the path of a US Navy cruiser and then stopped in an effort to drive the US ship out of the area. Beijing attempts to enforce its claims in the South China Sea with fishing boats or with white-hulled Chinese Coast Guard or maritime enforcement vessels, keeping PLA Navy ships on the sidelines unless needed for backup. Beijing specifically criticized the Philippines for breaching this etiquette by calling in a gray-hulled Philippine Navy vessel to arrest Chinese fishermen at Scarborough Shoal in 2012. Despite fears and expectations to the contrary, the Chinese government has not declared an air defense identification zone (ADIZ) over the South China Sea, likely because Beijing believes interference in commercial traffic is a red line for China’s potential adversaries. As Singapore-based analyst Alan Chong observes, China wants to avoid “driving ASEAN into the arms of the United States.” 20 Many analysts contend that, given China’s fragile economic and domestic political situation, the CCP leadership fears a war with the United States could put the survival of the regime at risk. Therefore, Beijing will be cautious about engaging in a conflict it does not consider politically necessary.21 Even on the issue of preventing Taiwan independence, unquestionably a core interest for Beijing, the CCP government refrained from attacking as Taiwan President Chen Shui-bian repeatedly stated in public, “Taiwan is an independent, sovereign country.” 22 Beijing may want to be the strongest power in the region, but not badly enough to go to war for it. For the foreseeable future, both China and the United States can maintain formidable military capabilities in the Indo-Pacific region that will discourage either country from starting a war against the other. Both countries also maintain large and survivable strategic nuclear forces. Thus, China is not poised to wield its newfound military power to impose Chinese domination upon the region. Rather, the former condition of previously unmatched US supremacy is evolving toward a rough military balance that could last decades. China will enjoy increased security over the territory it indisputably owns, but Chinese moves to capture either disputed or unambiguously nonChinese territory by force will remain prohibitively risky for Beijing.

This chapter provides such an assessment. The first half examines each country’s net military resources. The second half assesses how each side would fare in the most likely scenarios for a U.S.-China war. My main finding is that the United States has five to ten times the net military assets of China and maintains a formidable containment barrier against Chinese expansion in East Asia. Defense Spending The United States currently outspends China militarily three to one. Many analysts, however, expect that gap to shrink in the years ahead and some organizations, including The Economist and the International Institute for Strategic Studies, have projected that China’s defense budget will overtake America’s by the 2030s.1 There are many reasons to doubt such projections, not the least of which is that China’s economic growth is slowing dramatically, as shown in the previous chapter. Even if China’s defense spending eventually exceeds America’s, however, it would not necessarily mean that China 63 has more military resources. Defense spending statistics are gross flow measures that ignore accumulated stocks of military spending and fail to deduct welfare or security costs. As a result, such statistics vastly understate the U.S.-China military gap. Below, I elaborate on these points.

WASHINGTON — The United States Patent and Trademark Office (USPTO) became a technology partner to the global green-technology platform of the World Intellectual Property Organization (WIPO), WIPO GREEN.

WIPO GREEN is a public-private partnership established by WIPO in 2013. Its 145 international partners include major technology companies, intellectual property (IP) offices, business groups, research institutes, and nongovernmental organizations. The partnership provides an online platform for technology exchange, connecting providers and seekers of environmentally friendly technologies, and organizes acceleration projects, conferences, and international events that highlight the availability of green technologies.

Central to Russian President Vladimir Putin’s calculations as he weighed the invasion of Ukraine was a belief that he would encounter an enfeebled and divided West. It was a reasonable expectation given political developments in those countries in recent months and the seeming discord that surfaced among them as they studied his preparations. He was wrong, however. The West, and virtually the entire world, has united to oppose the invasion of Ukraine. While many leaders deserve credit for helping to forge this coalition, a good deal of the credit goes to U.S. President Joe Biden, who has demonstrated remarkable acuity in handling this crisis. He and his team overcame deep fissures in U.S. domestic politics to build that international front, wrong-footed Putin and prevailed in the information war. Biden is laying out the terms for a new era in international relations, one that he believes will be defined by the struggle between democracy and authoritarian governments. While there was considerable public debate and great skepticism about Putin’s intentions, the U.S. has been steadfast in its insistence that an invasion was planned. To great risk, the U.S. revealed intelligence that burned off the cloud of doubt and confusion that Moscow hoped to use to win the information war and denied Russia the advantage of surprise. Biden and his team used that intelligence and a calibrated strategic approach to engage allies and partners, and to identify and pursue the consensus that would unify the West in response to any aggression. Working behind the scenes, Washington has let other governments move at their own pace: For example, Europe was first to announce that Russian banks would be barred from the SWIFT financial messaging system. The result has been the creation of a coalition that not only surprised Putin, but many in the West as well. It has strengthened NATO and burnished its appeal to other European countries. His team has worked with the Japanese government to ensure that it is part of this coalition. While condemnation of the invasion was obligatory, joining the sanctions effort was not. Tokyo has traditionally been slow to use sanctions, insisting instead on the need to maintain channels of communication with target countries. This logic has been especially useful when dealing with Putin, with whom even conservative politicians engaged in hopes of reaching a solution to the Northern Territories dispute. Prime Minister Shinzo Abe was one of the few Western leaders to attend the Opening Ceremony of the 2014 Sochi Winter Olympics, held as another crisis brewed in Ukraine, one that would result in the annexation of Crimea. The speed with which all parties agreed on sanctions and the severity of those measures is an example of the success of Biden’s strategy. The shocking shift in German security policy — announcing that Berlin will send military weapons to Ukraine and that it will increase defense spending by €100 billion this year and reach the goal of spending 2% of gross domestic product on defense — is another. The stunning United Nations General Assembly vote of 141-5 against the invasion is yet another. These achievements are even more impressive given the damage that his predecessor Donald Trump did to U.S. alliances, multilateralism and the rules-based order. The most important lesson of the last week has been that international cooperation and coordinated action in pursuit of shared values and principles are essential to the survival of that order and to the peace and security it creates. The protection of national interests is best achieved through cooperative actions, not myopic or narrowly defined nationalism. Just as important has been Biden’s restraint. He made clear before the invasion began that the U.S. would not commit military forces. He has talked tough, but he has not drawn intemperate red lines. When Putin brandished his nuclear arsenal in a seeming warning that he was prepared to use those weapons, the U.S. by contrast canceled a planned missile test to avoid any risk of an accident. And throughout the crisis, Biden has focused attention on where it belongs. He has applauded the heroism and resilience of the Ukrainian people and condemned Putin for his aggression. He has not made it about himself or put himself at the center of the unfolding crisis. Instead, he has framed this as a struggle between the forces of good and evil, as when he closed his State of the Union address in Washington Tuesday evening by noting that “Now is the hour. Our moment of responsibility. Our test of resolve and conscience, of history itself. It is in this moment that our character is formed. Our purpose is found. Our future is forged … . We will save democracy.” For 70 years, the world has looked to the U.S. for leadership in international crises. In recent years, there has been growing doubt about both the capacity and the will of the U.S. president to play that role. These questions have arisen as power within the world is being redistributed: Indeed, that shift is driving some of the concern. New divisions of labor and responsibility are needed; some are being created. But there remains a critical need for leadership, albeit leadership of a new kind. The world is fortunate to have Biden in the White House as it grapples with a world in transition.

The problem, of course, is that this view of the law permits or legitimises seemingly gross ethical transgressions, allowing lawyers to sidestep morality in favour of technique.34 Indeed, the law may actually encourage such sidestepping given that lawyers are ‘professionalized in a manner that undermines moral reasoning skills’. 35 For scholars like Hatfield, the blame for the torture debacle lies with American legal education and process, and the ‘professionalization of moral deference’ it encourages. In his words, ‘[w]e do not expect lawyers to say “no”; we expect lawyers to figure out “how”. I cannot pretend to be shocked by the results.’

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Whenever a lawyer or historian describes how a particular action “violates international law” many people stop listening or reading further. It is a bit alienating to hear the words “this action constitutes a violation of international law” time and time again – and especially at the end of a debate when a speaker has no other arguments available. The statement is inevitably followed by: “…and it is a war crime and it denies people their human rights.” A plethora of international law violations are perpetrated by every major power in the world each day, and thus, the empty invocation of international law does nothing but reinforce our own sense of impotence and helplessness in the face of international lawlessness. The United States, alone, and on a daily basis violates every principle of international law ever envisioned: unprovoked wars of aggression; unmanned drone attacks; tortures and renditions; assassinations of our alleged “enemies”; sales of nuclear weapons; destabilization of unfriendly governments; creating the largest prison population in the world – the list is virtually endless. Obviously one would wish that there existed a body of international law that could put an end to these abuses, but such laws exist in theory, not in practice. Each time a legal scholar points out the particular treaties being ignored by the superpowers (and everyone else) the only appropriate response is “so what!” or “they always say that.” If there is no enforcement mechanism to prevent the violations, and no military force with the power to intervene on behalf of those victimized by the violations, what possible good does it do to invoke principles of “truth and justice” that border on fantasy? The assumption is that by invoking human rights principles, legal scholars hope to reinforce the importance of and need for such a body of law. Yet, in reality, the invocation means nothing at the present time, and goes nowhere. In the real world, it would be nice to focus on suggestions that are enforceable, and have some potential to prevent the atrocities taking place around the globe. Scholars who invoke international law principles would do well to add to their analysis, some form of action or conduct at the present time that might prevent such violations from happening. Alternatively, praying for rain sounds as effective and rational as citing international legal principles to a lawless president, and his ruthless military.

Russia’s annexation of the Crimean peninsula and its continuing military pressure on Ukraine demonstrates that the United Nations-centered system of international law has failed. The pressing question is not whether Russia has violated norms against aggression — it has — but how the United States and its allies should respond in a way that will strengthen the international system. It should be clear that Russia has violated the UN Charter’s restrictions on the use of force. It has resorted to “the use of force against the territorial integrity” and “political independence” of Ukraine in violation of Article 2(4) of the Charter’s founding principles. Russia has trampled on the fundamental norm that the United States and its allies have built since the end of World War II: that nations cannot use force to change borders unilaterally. Like the League of Nations in the interwar period, the current system of collective security has failed to maintain international peace and security in the face of great power politics. According to widely-shared understandings of the UN Charter, nations can use force only in their self-defense or when authorized by the Security Council. Great powers with permanent vetoes on the Security Council (the United States, United Kingdom, France, Russia, and China) can always block formal efforts to respond to their own uses of force. Hence, the United Nations remains as powerless now as when Vladimir Putin ordered the 2008 invasion of Georgia. The United Nations and its rules have not reduced the level of conflict between the great powers. That doesn’t mean there has not been a steep drop in conflict, despite Russia’s invasion of Ukraine. From 1945 to the present, deaths due to great power wars have fallen to a level never seen under the modern nation-state system. Collective security, however, is not the agent of this “Long Peace,” as diplomatic historian John Lewis Gaddis has called it. Rather, the deterrent of nuclear weapons and stable superpower competition reduced conflict during the Cold War. Since the fall of the Soviet Union, the United States has continued to supply the global public goods of security and free trade on its own. Democratic nations’ commitment to maintaining that liberal international order, not the collective security of the UN Charter, has kept peace among the great powers. As someone who worked in the Bush administration during the 2003 Iraq War, I am struck by today’s absence of criticism for Russia’s violations of international law and its effective neutering of the United Nations. About a decade ago, criticism of the United States reached unprecedented heights for its failure to win a second Security Council resolution authorizing the use of force. The United States and its allies claimed that it already had authority from Iraq’s refusals to obey its obligations at the end of the 1991 Gulf War and its continuing threat to regional peace. Some of the United States’ closest European allies, such as France and Germany, violently disagreed — although these nations seem to urge compromise today with Russia. Even though the United States went to war without Security Council authorization, it sought to build a legal case in support. UN rules only constrain democracies that value the rule of law, while autocracies seem little troubled by legal niceties. Paralysis continues to afflict the democratic response to the invasion of Ukraine. The United States responded to the invasion of Ukraine and annexation of Crimea with the symbolic measures of sanctioning a few members of Vladimir Putin’s inner circle, kicking Moscow out of the G-8, and halting NATO-US military cooperation. Russian officials mocked the United States and raised the price of natural gas sold to Ukraine, an implicit warning to other European nations that depend on Russian natural gas. The Russian and US stock markets sighed with relief that no serious economic disruptions would follow.