MIKE SCRAFTON. Some possible implications for Australia’s strategic policy in Trump’s emergency

Feb 20, 2019

President Trump’s declaration of a national emergency over illegal immigration on the southern border of the US is destined to bring on a short term constitutional and political crisis in the US. The security of the US/Mexican border is not of direct interest to Australia but the longer term outcome of contest between the Executive and the Congress is something that bears close attention.

Domestic constitutional and legislative arrangements in the US can have an impact on the US’s alliances. US alliance policy under Trump is already fraught with uncertainty. Congress’s willingness to contest with the Administration on some issues will exacerbate this. The declaration also coincides with a growing trend towards greater illiberal autocracy around the world. From either perspective, Australia could find itself allied with a nation led by someone that does not share its core values.

The domestic contours of the substantive debate over the legitimacy of Trump’s declaration are pretty clear already. His antagonists highlight the lack of evidence to support his depiction of the southern border situation as a real crisis and that the wall solution is not consistent with the actual experience with illegal immigrants, drug smuggling, or people trafficking.

The president’s critics argue his move is neither consistent with previous presidents use of the emergency legislation nor with the Constitution’s separation of powers and the exclusive power of Congress to appropriate federal funds. This issue concerning the respective powers of the Executive versus the Congress that will potentially have ramifications for US allies, including Australia.

This is not just a short term problem for US allies during the tenure of a president whose lack of basic knowledge, limited analytical capacity, over reliance on intuition in foreign policy, and antagonism towards multilateralism are already disrupting normal diplomatic relations and generating confrontation. More significant will be the consequences of Trump’s legacy on the accepted constraints on some future president.

Trump’s comments on possible legal challenges to his declaration indicate that he anticipates a favourable hearing in the Supreme Court. In relation to legal challenges Trump said ‘hopefully we’ll get a fair shake and we’ll win in the Supreme Court’. Whether that is a well-founded expectation or not, it shows the low esteem in which he holds the fundamental rule-of-law principles of judicial impartiality and respect for precedent. It also displays a disparaging view of the separation-of-powers.

Trump is dismissive of the Congress’s constitutional role saying by declaring the wall an emergency simply because Congress ‘don’t want to give us much money’. In the past the Supreme Court generally has not supported presidential actions claiming prerogative that go against the expressed intent of Congress on an issue. Disturbingly, Trump seems to expected that on this occasion the Supreme Court justices will take the side of the president who appointed them.

Trump is breaking new ground but not systematically. Not because he is a gifted visionary or a revolutionary, but inadvertently. He doesn’t sufficiently understand his own political system to consciously undermine it with purpose. However, the legacy of his tenure might be to make way for a real autocrat.

Kim Lane Scheppele’s article Autocratic legalism gives an indication of how determined and clever politicians could exploit Trump’s erosion of constitutional checks and balances, separation of powers, and judicial independence.

Schepple observes that ‘[S]ome constitutional democracies are being deliberately hijacked by a set of legally clever autocrats, who use constitutionalism and democracy to destroy both’. She describes how, ‘They use their democratic mandates to launch legal reforms that remove the checks on executive power, limit the challenges to their rule, and undermine the crucial accountability institutions of a democratic state’.

Schepple points to Hungary under Victor Orban, Recep Tayyip Erdoğan in Turkey, Putin’s Russia, and the Kaczyński government in Poland (among others) where the attainment of power under a liberal democratic system was followed—immediately or incrementally—by constitutional reform and subordination of the judiciary to entrench in power a strong, charismatic leader. A process often preceded by an economic or political crisis or ‘a dysfunction in the party system allows a mainstream political party to be captured’ by an insurgent outsider, or both.

The era when the US was an unchallengeable hegemon that was more like Australia than not is passing. This strong sense of similarity was strengthened during the Cold War and through the globalisation processes as Australia imported the US’s world view and consumer culture. Australian governments have taken US rhetoric in support democracy, human rights, and liberal values uncritically at face value.

Australia’s foreign and defence policies have been heavily dependent on the assumed legitimacy of the US’s international role as an exemplar of liberal democratic values, a champion of rule-of-law, and a predictable force for strategic stability. Foreign affairs and defence white papers constantly stress this point. Acceptance of US global leadership and the strength of Australia’s attachment to the alliance have been in part underpinned by a commitment to a shared set of values and objectives, and a common language and shared heritage, as much as security issues. It is no longer a given that the coincidence of values and interests will survive.

A future autocratic president could be Republican or Democrat, nationalist or internationalist, interventionist or isolationist, pragmatist or ideologue, protectionist or globalist, or xenophobic or not. Authoritarian tendencies occur across the spectrum. Arbitrary, unpredictable, unchecked power is the danger.

The US doesn’t need to fall to a tyrant or dictator for Australia to worry. A less constitutionally constrained, strong authoritarian president with a cowed Congress and subservient judiciary and the economic and military power of the US largely in her/his hands would necessarily force Australia to reconsider the alliance relationship.

This might seem a farfetched scenario. But the EU heads of government meeting in Berlin in 2007 to celebrate the fiftieth anniversary of the signature of the Treaties of Rome could not have imagined the resurgent nationalism, authoritarianism, nativism, and illiberalism plaguing and threatening Europe today.

Mike Scrafton is a former senior Defence executive, former CEO of a state statutory body, and former chief of staff and ministerial adviser to the minister for defence.

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