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Are we in a crisis? Learning from Trump’s lawfare endgame

Is there a crisis in the United States, as many commentators would make us believe? If so, what is the nature of that crisis? It has become very fashionable to speak of innumerable ‘crises’ while most of these events can be traced to something far deeper, namely lawfare. It is becoming increasingly clear that the use of lawfare has been Trump’s game plan from the beginning until the end of his administration; accordingly, he is now seeking to bypass the will of the voters and entrench himself in the White House.

Marchers with signs at the March on Washington, 1963. Source: Library of Congress Archive https://www.loc.gov/pictures/item/2013648849/.

Americans, and indeed people around the world, have tried to make sense of the US election, in particular its incomprehensible system of tallying Electoral College votes, as well as a plethora of legal challenges to elections across the country. A quick scan of the latest news items from around the world reveal claims of a range of nebulous ‘crises’ in the US: a political crisis, a crisis of democracy, a constitutional and potentially post-election crisis, a crisis of bourgeois democracy, and even a crisis of the American Dream.

But do any of these depictions of ‘crisis’ really help us understand what has been happening? And why is it that the courts rather than the voter (or Electoral College for that matter) seem to end up deciding an election, as Trump hoped would happen for this presidential election when he complained about electoral fraud?

Simplistic descriptions of ‘crises’ without a deeper examination of the root causes won’t help us understand what is transpiring. As my ISS colleague Karim Knio has consistently argued, we should not waste a good crisis. Accordingly, he insists that one must resist the simplistic tendency to speak of a crisis IN or a crisis OF something, but rather should seek to understand the potential of such events to trigger political change.

To be sure, this is not to dismiss the importance of potentially calamitous events – whether they are political, economic, ecological, sociological or indeed medical (the COVID-19 pandemic comes to mind). However, the crucial thing is to learn from how such events have been (mis)managed to get to the underlying causes. In other words, explaining the pedagogy of crisis management is much more important than the crisis itself.

Amidst a cacophony of voices, each seeking to provide their own explanation of the ‘crisis’ in the US, and even how to solve it, very few speak of the underlying reasons why the US is in such a mess. This is a far more fundamental matter, including the insidious ways in which law is instrumentalised to suppress basic democratic and legal values, and indeed to suppress people as well. I argue that the illegitimate misuse of the legal system in the US through the use of lawfare is underpinning many of these ‘crises’.

It was evident from the very beginning of the Trump administration that it would use lawfare to accomplish its goals. Lawfare is about instrumentalising law to suppress people and to undermine rule of law values. This use of law assumes “delegitimising and oppressive forms, justifying retrogressive policies and even reinforcing the hegemonic actions of states”.

Throughout the four years of the Trump administration, there has been an expansive mis-use of the law through lawfare to accomplish what would otherwise have been impossible through legitimate legal procedures. All branches of government have been affected by it. In the legislature, following an impeachment by the Democrat-controlled House of Representatives, Trump’s strong alliance with key members of the Republican-held Senate ensured that, through lawfare, he would be duly acquitted in a sham trial that failed to call any witnesses. Trump also waged lawfare in the judiciary: he appointed two Justices with right-wing political views – Brett Kavanaugh and Amy Comey Barrett – to the US Supreme Court, the latter one week before the presidential election. But most of all, Trump made extensive use of lawfare by way of executive orders, from the so-called ‘Muslim ban’ to the separation of migrant children from their families after being detained at the US border.

Trump was hardly the first president to make use of Executive Orders—Bush and Obama made extensive use of them as well. Indeed, Trump capitalised on this expansion of executive power. Notwithstanding their shaky legality (they were frequently overturned after being challenged in court), it seems that this form of lawfare has mainly been intended as a source of distraction, for example from the administration’s ‘dangerously incompetent’ handling of the COVID-19 pandemic or the Republican party’s systematic unravelling of the US social safety net.

However, Trump arguably took lawfare to a whole new level in the context of the 2020 Election. In the run-up to the election and even as Biden was proclaimed victorious, lawfare has been Trump’s principal strategy, his endgame for attempting to win re-election in 2020 by way of voter suppression, which another commentator refers to as a ‘crisis’ in itself.

Voter suppression through lawfare has a long history that is rooted in the country’s racist past. This has involved the systematic use of lawfare at municipal and state levels, and has taken various specific forms. A common form has been to require voters to produce specific IDs, based on a spurious claim (i.e. little to no evidence) that voter fraud was rampant. A second form of lawfare has been to exclude those with a previous felony conviction (i.e. record of having committed a serious crime). A further form of lawfare has been to re-design voter districts so that Republicans have a greater chance of winning elections according to a particular set of demographics. Much of these lawfare aimed at voter suppression were pushed by a private organisation known as the American Legislative Exchange Council (ALEC).

In the weeks prior to election day on 3 November, Trump and his associates issued frequent warnings of the potential for voter fraud, citing mail-in ballots as a major cause. As often accompanies lawfare, there was little to no evidence for making such claims.

By 8 November, it became increasingly clear that Biden would win the US Presidential election by more than 4 million votes. By then he had already collected well more than the 270 electoral votes needed to win and was on track to secure more than 300 in total. Accordingly, every single major US news network—including the Trump-friendly FOX news— projected by 8 November that Biden would win the election.

The response of Trump and his associates was not to concede, but to step up their lawfare game by launching multiple lawsuits in different states, albeit lacking the support of large law firms that are required to mount such complex litigation. As with many other previous lawfare actions, this action was also led by former New York mayor Rudy Giuliani, again alleging ‘fraud’, though still based on little to no evidence. Nevertheless, these false allegations have been bolstered by Trump’s allies in the Senate—in particular Lindsey Graham and Ted Cruz—all aimed at questioning the legitimacy of the 2020 presidential election, or potentially at maintaining the Republican voter base.

This all reveals the importance of learning how lawfare has been used to undermine fundamental pillars of governance. Despite the claims of pundits that the US is facing innumerable, unspecified crises, the biggest crisis facing the US is much deeper and fundamental. It is a crisis in how lawfare is systematically used to undermine the very fundaments of liberal democracy and, most recently (and visibly), the integrity of the electoral system.

Learning from how Trump and his associates have misused the law through their disingenuous campaign of lawfare is also key to understanding why challenging the election is not as important as Trump’s lawyers make it out to be. Lawfare is used to exclude legitimate voters and to foster a deep and growing polarisation that will make it all the more possible for right-wing Republican candidates—even those with no qualifications or experience other than starring in a reality TV programme or running loss-making businesses—to seek presidential office in future.

In other words, Trump’s endgame of lawfare is a crude strategy for undermining basic principles of governance in order to secure re-election. While this strategy of polarisation is proving unlikely to work for this election, it may well secure a Republican victory in future.

About the author:

 

Jeff Handmaker

 

Jeff Handmaker is a senior researcher at the International Institute of Social Studies (ISS) and focuses on legal mobilisation.

 

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The Orphan Industrial Complex comes home to roost in America by Kristen Cheney and Karen Smith Rotabi

The recent removal of migrant children from their parents at the southern US border has caused great public outcry, but Kristen Cheney and Karen Smith Rotabi argue that it could become another incarnation of the Orphan Industrial Complex that glorifies ‘child rescue’ and the charitable commodification of children without parental care—one that actually produces orphans for a hungry adoption market through dubious legal means.


What is happening to migrant children is egregious and yet predictable: children separated from their families and moved hundreds of miles away to foster homes—by an adoption agency with ties to US Secretary of Education Betsy de Vos.

To those who are appalled by this move by the Trump administration, the situation is unconscionable and ‘not who we are’ as Americans (though there are numerous historical cases of intentional family separation by the state).

To those of us in children’s studies, however—and particularly those of us who study orphanhood and adoption—it was only a matter of time before the Trump family separation policy crossed paths with the Orphan Industrial Complex.

The Orphan Industrial Complex

The Orphan Industrial Complex (OIC) is the charitable commodification of children without parental care. It is driven by persistent narratives of “orphan rescue” that not only commodify orphans and orphanhood itself but that frequently spurs the “production” of “orphans”, resulting in child exploitation and trafficking (Cheney and Ucembe forthcoming). The OIC includes such activities as fundraising for orphanages, orphanage volunteering, and international adoption.

The OIC has largely been operating internationally, driven by North American and European desires for children and/or experiences with orphans abroad (Cheney and Rotabi 2017). Now that we are seeing young children at the doorstep of the US, the next chapter in a long story of child abduction into adoption is currently being written—this time domestically.

Adoption scholars and children’s advocates have been speculating on social media that the plan is (and has likely been all along) that they move the young children far from their parents at the border, charge an absurd amount for fostering and/or reunification that the parents can’t pay—either because they just don’t have the money and/or are still in detention—then when they can’t pay, the authorities declare the children abandoned and available for adoption. This has happened before, and make no mistake, it is happening as we type. And it is perfectly “legal”, in that the courts are sanctioning these actions; indeed, they are enabling the stealing of children against the will of their parents.

Bethany Christian Services of Michigan, an adoption agency with ties to billionaire Education Secretary Betsy de Vos and a history of coercive adoptions, has placed approximately 80 children in foster care thousands of miles from the southern US border, where some of the parents are detained while other parents have already been deported to Central America. Bethany and other agencies have government contracts to provide so-called “foster care” while reunification strategies are sorted. We submit, why would a large-scale adoption agency be trusted with such a critical and essential task all those miles removed from the location where the child was separated from their parent(s)?

Tackle the enabling environment first

Because the courts are so often complicit in child stealing, it is difficult to actually talk of “illegal adoptions”. That is why Cheney told the UN HRC Council last year that using the law to battle “illegal adoptions” is not enough; we need to address the enabling environment that is undergirded by “child rescue” and “better life” narratives that justify helping ourselves to the children of the poor and desperate. These discourses are also what undergird the OIC, thus perpetuating such violence against children and families. As we know from previous experience, there are people out there who have no scruples about adopting the children separated from their detained and deported migrant parents—many of whom came to the US with their children to protect them from violence and instability at home—and in fact there are whole social movements dedicated to adoption.

Yet, a number of the families crossing the U.S. border are actually eligible to apply for asylum based on societal violence: asylum seekers from Guatemala, El Salvador and Honduras are over-represented in the recent influx. All three countries suffer notorious gang violence and other problems that rise to the definition of persecution when an individual or family is targeted. Ironically, US government policies have fueled poverty and violence underlying the requests for asylum from the region (Costantino, Rotabi and Rodman 2012). Gang violence is just one symptom that has, in turn, pushed some of the region’s most vulnerable people to immigrate northward for safety (Carlson and Gallagher 2015).

Rather than being welcomed at the border as asylum seekers, they are charged with a misdemeanor for illegal entry to the US. To make matters worse, there are credible stories of immigration agents coercing parents with threats of child adoption if they should file for their rights to seek refuge. As the U.S responds to asylum seekers and others with such a heavy and uncaring hand, Federal Judges are now weighing in: a recent court order requires the children affected and in foster care to be quickly reunited with their families. However, U.S. Attorney General Jeff Sessions fought the court order—and lost. Nonetheless, this mean-spirited delay of the court judgment being realized inevitably will prolong the waiting game which is a potential means of child abduction into adoption through the courts. All too often, when a challenge to separation finally comes to court, judges have ruled that a child has lived with a foster family for long enough that they have emotionally attached to the new family. On the basis of the best interests of the child, legal judgments favoring adoption rather than returning a child to their parents have prevailed. This has already happened in notorious cases of child abduction into US adoption from Guatemala (Rotabi and Bromfield 2017).

In the case of an organization like Bethany, they typically serve the very hungry adoption marketplace rather than facilitate parent-child. While Bethany can and should mobilize to change its case management model from adoption to reunification, the clock ticks on the family lives of vulnerable children.

The dark side of adoption

It may look like some of the children adjust well to their new homes and families, but let us tell you what is going to happen if we do not stop it: the older children will likely not adjust well to being ripped from their parents and told they have new families, so those adoptions are bound to “fail”, with kids running away, ending up cycling through multiple foster homes, or worse. For younger kids, the memories of their families and the harrowing journey they have made with them will likely fade over time as the children get adjusted to their new homes. But imagine how they will feel as they come of age and learn the true circumstances of their adoptions; that they were essentially stolen at the border from a parent(s) who carried them for thousands of treacherous miles seeking safety from the very violence instigated by the US. Older adoptees have been devasted to learn of such questionable reasons for their international adoptions, and it can lead to a dissolution of their relationships with their adoptive parents as well as incredible emotional difficulties that come with such a revelation: adoptees, for example, have high rates of depression and suicide.

Many adoptee advocates note that adult adoptees are often driven to learn more about their origins, as an integral part of their identities. In fact, origin tourism has become another facet of the OIC, marketizing adoptees’ need to search for their birth families (Dorow 2010, 78). Nonetheless, one of the strongest recommendations to come out of the International Forum on Intercountry Adoption and Global Surrogacy held at the ISS in 2014 was for preservation of records in adoption so that when the time comes for individual adoptees to search for their original families, they will have access to the vital information necessary.

If we cannot stop this from happening now, we need to make sure this injustice is well documented so that sooner or later, it can be righted, and these children can finally be reunited with their families.


References:
Carlson, Elizabeth, and Anna Marie Gallagher. 2015. “Humanitarian Protection for Children Fleeing Gang-Based Violence in the Americas.” Journal on Immigration and Human Security 3(2), 129-158.
Cheney, Kristen E., and Karen Smith Rotabi. 2017. “Addicted to Orphans: How the Global Orphan Industrial Complex Jeopardizes Local Child Protection Systems.” In Conflict, Violence and Peace, edited by Christopher Harker and Kathrin Hörschelmann, 89-107. Singapore: Springer Singapore.
Cheney, Kristen, and Stephen Ucembe. forthcoming. “The Orphan Industrial Complex: the charitable commodification of children and its consequences for child protection.” In Disadvantaged Childhoods and Humanitarian Intervention: Processes of Affective Commodification, edited by Kristen Cheney and Aviva Sinervo. London: Palgrave MacMillan.
Costantino, Rosalin, Karen Smith Rotabi and Debra Rodman. 2012. Violence against women and asylum seeking: Global problems and local practices applied to Guatemalan women immigrating for safety. Advances in Social Work 13(2), 431-50. Available at http://journals.iupui.edu/index.php/advancesinsocialwork/article/viewFile/1974/2465.
Dorow, Sara. 2010. “Producing Kinship through the Marketplace of Transnational Adoption.” In Baby Markets: Money and the New Politics of Creating Families, edited by Michele B. Goodwin, 69-83. Cambridge: Cambridge University Press.
Rotabi, Karen Smith, and Nicole F. Bromfield. 2017. From Intercountry Adoption to Global Surrogacy:  A Human Rights History and New Fertility Frontiers. Abingdon: Routledge.

About the authors: 

Headshot 02 17.pngKristen Cheney is Associate Professor of Children and Youth Studies at ISS. She is author of Crying for Our Elders: African Orphanhood in the Age of HIV and AIDS and co-editor of the forthcoming volume, Disadvantaged Childhoods and Humanitarian Intervention: Processes of Affective Commodification.

Headshot_Rotabi_CSUMB_Fall2017.jpgKaren Smith Rotabi is Professor and Chair of the Department of Social Work at California State University Monterey Bay. She is co-author of From Intercountry Adoption to Global Surrogacy: A Human Rights History and New Fertility Frontiers and co-editor of Intercountry Adoption: Policies, Practices and Outcomes.

Cheney and Rotabi co-organized the 2014 International Forum on Intercountry Adoption and Global Surrogacy at ISS.

Deglobalisation Series | Backtracking from globalisation by Evan Hillebrand

While globalisation still enjoys strong support in the Global South, major economies in the Global North now seem less enthusiastic about its purported benefits. This article explores how the United States through its previous policies came to backtrack from globalisation, showing that it is an altogether unsurprising development.


From the perspective of the United States (US), embodied in US president Donald Trump’s recent discourses, the liberal international trading system faces at least three major economic and socio-political challenges going forward: (1) income redistribution, (2) the rise of Asia and a potential shift in comparative advantage, and (3) the rise of China and the national security argument. Given the growing domestic unease with free trade and the fact that these exacerbating issues are worsening, I suggest that US policies will become less supportive of globalisation.

US withdrawal: surprising or expected?

In our 2011 article, “Backtracking from Globalization” (1), my coauthors and I discussed the declining support for globalisation in the United States and elsewhere. Since then the trend has gotten worse.

But why shouldn’t it? The US, after all, has only had a liberal trade policy for 60 or so years. In its early years, US policy focused on high tariffs, large subsidies to key industries, and infrastructure investment designed to create an industrial economy for the sake of military and economic power (sounds not too dissimilar to China today). The US moved to a freer-trade stance when the US was economically dominant and an expansion of global markets seemed as if it would be economically beneficial.

The US free trade strategy was also based on political theories and grand strategy. After World War II, trade expansion was seen as a good way to bolster Europe economically, tie it to the West, and strengthen the West against the Soviet Union. The US spurred the creation of the GATT/WTO in an effort to bring all countries into a democratic rule-based system under the assumption that trade would help all countries prosper under US leadership. Since 1980 or so, the US has tried to lure China into the world market system to foster interdependence and peace. In many respects, that policy can be considered a great success—ushering in a vast improvement in the material standard of living almost everywhere and many decades of great-power peace. China also did turn away from its Maoist phase of development.

 Ebbing enthusiasm for globalisation

Support for globalisation, however, is clearly headed in a negative direction and the ebbing of enthusiasm has been particularly dramatic in the United States. Recent polling data from the Pew Foundation and the Council on Foreign Relations (2) show that there is still support for international trade, but a majority worry that trade generates labor market costs in terms of job destruction and lower wages. This worry helped elect the current US president and his administration talks more about fair trade than free trade: ‘Nothing about the theory of comparative advantage would lend itself to a defense of a status quo that imposes higher barriers to exports on American producers than on foreign producers’ (Economic Report of the President 2018: 219) (3).

It is important to understand that it is not ignorance that has led US policy in this direction.

Many voters were lured to Donald Trump’s “America First” pitch because of a perception that wages were stagnant and communities were hurt because of globalisation. In reality it is more than just a hunch: income distribution in America has worsened and academic research by Paul Krugman (4) and others attributes some of that worsening to trade, although the magnitude of trade’s contribution is (and always will be) in dispute.

Support for globalisation has to some extent rested on the theory of comparative advantage, but that theory has never been the “slam dunk” argument that enthusiasts have made it out to be. It depends on so many assumptions that do not fit the current world economy, so the theory should only be relied upon as a general principle, not the decider of every policy dispute. Paul Samuelson (5) claimed in 1972 that the aggregate gains from trade are not necessarily positive. He expanded on this idea in his (2004) paper, ‘Where Ricardo and Mill Rebut and Confirm Arguments of Mainstream Economists Supporting Globalization’, saying that growth in the rest of the world can hurt a country if it takes place in sectors that compete with its native exports—where it has comparative advantage.

The rise of China

Relative, and even absolute, per capita GDP can fall in such a situation (6). Whether China’s rise can actually diminish the US is not clear, but the current Chinese government continues to employ active trade policies to push its industries up the value chain, aiming explicitly at sectors that have been the mainstay of US industrial pre-eminence. Samuelson says that ‘economic history is replete with examples like this, first insidiously, and later decisively’, pointing explicitly to British manufacturing being overtaken by US industry after 1850.

In addition to the economic threat posed by China, the US government has long worried about the security threat posed by China’s rise. The US-China Economic and Security Review Commission is an organisation chartered and funded by the US Congress and dedicated to the proposition that China poses a multifaceted threat to the US. It yearly issues a massive report that cites declines in the US defense industrial base, insecurity of defense supply lines, financial threats, Chinese ownership of critical US facilities, cyber threats, and other problems—all related to China. In the most recent report (7), it lists 26 recommendations for congressional action, many of which would amount to new trade restrictions.

Trade policies, while often rooted in interest groups scrambling for distributional gains, are also related to national economic and security concerns. In the past, pragmatic national interests have pushed trade policy in varying directions. There is no reason now to believe that the US is giving up on international trade, but there is every reason to believe that for a variety of national interests it will be much less enthusiastic about globalisation in the future.


References:
(1) Hillebrand, E.E., J. Lewer and J. Zagardo (2011) ‘Backtracking from Globalization’, Global Economy Journal 10(4).
(2) Poushter (2016) American Public, Foreign Policy Experts Sharply Disagree over Involvement in Global Economy. Pew Research Center, http://www.pewresearch.org/author/jpoushter.
(3) Council of Economic Advisors (2018) Economic Report of the President. Washington, D.C. https://www.whitehouse.gov/wp-content/uploads/2018/02/ERP_2018_Final-FINAL.pdf
(4) Krugman, P.R. (2008) ‘Trade and Wages, Reconsidered’, Proceedings of the Brookings Panel on Economic Activity. Spring conference. Available at: (http://www.princeton.edu/~pkrugman/pk-bpea-draft.pdf).
(5) Samuelson, P.A. (1972) ‘Heretical Doubts About the International Mechanism’, Journal of International Economics, 2(4): 443-453.
(6) Samuelson, P. (2004) ‘Where Ricardo and Mill Rebut and Confirm Arguments of Mainstream Economists Supporting Globalization’, Journal of Economic Perspectives 18(3): 135-146.
(7) U.S.-China Economic and Security Review Commission (2017) 2017 Report to Congress. Washington, D.C. Available at https://www.uscc.gov/sites/default/files/annual_reports/2017_Annual_Report_to_Congress.pdf

Also see: Deglobalisation Series | Is anti-globalisation only a preoccupation in the Global North? by Rory Horner, Seth Schindler, Daniel Haberly and Yuko Aoyama


UntitledAbout the author:

Professor Evan Hillebrand taught international economics at the Patterson School of Diplomacy and International Commerce at the University of Kentucky. His most recent book is Energy, Economic Growth, and Geopolitical Futures (MIT Press, 2015).