Category Archives: Uncategorized

Reads on Voting and Representation

I’ve been bothered in recent weeks by some of the voting and representation problems that we seem to have in the US. Read two interesting articles today on the topic.


Much has been said about how the EC tends to give more power to rural states. The underlying dynamics of the country have shifted significantly over time, from 5% to 80% urbanization, and clustering of people into smaller areas. Cities get the short end of the electoral stick, and also bear the burden of supporting the rest of the country with disproportionate tax transfers.

View story at Medium.com
Interesting legal argument that gets at what a lot of people (me included) seem to feel about the EC and its affects on voting representation. The incentives of the current system are definitely perverse – we are going to continue to see voting made more difficult for the average citizen and overall voter apathy if nothing is altered.

Unilateral Treaty Making, Or Unmaking?

Finally, we are headed towards the end of this Presidential campaign later today (we hope). One of the issues that has dominated the conversation is the relationship between the United States and other countries codified in the many international agreements we have signed. Both trade treaties, including NAFTA and the potential new TPP, and broader international agreements, like NATO, have been questioned this campaign. One candidate thinks that NAFTA is the “worst deal ever signed” while the other has been pushed to renounce previous support for the TPP.

Sidestepping the issue of whether these agreements are good or bad for the United States (there is some overview of the debate here and most economic studies find moderate positive effects), I’ve been curious what a President could actually do unilaterally as far as these international agreements are concerned. Can the President just rip up NAFTA? What checks are there on this power? I have a bit of background on foreign relations law and international trade law from some previous classes, so I’ll take a shot at thinking about this.

What’s the law on making treaties?

Treaty making in the United States is not simple. There are regular treaties, Congressional-Executive agreements, and even informal handshake deals between heads of state, and the sources of the power to make these agreements come from a number of areas. Note, a treaty (I) in the international sense is generally a term applied to all of these agreements, not just those made under the official treaty (D) domestic process outlined below.

First, the Constitution gives the President the power to make treaties – “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” US Const. Art II, § 2, cl 2. This is your traditional treaty making power. The President (and executive) negotiate and sign a treaty with another country; the Senate consents, sometimes with conditions; and the President then ratifies the treaty and it becomes international law.

Beyond the traditional treaty power, there are also a series of Executive Agreements that the government can make. The first and most similar to the treaty making power is the Congressional-Executive Agreement. This power is a combination of the general executive power to conduct foreign relations under Article II, with the legislative powers elucidated in Article I. Congress has significant Article I powers, including to regulate foreign commerce, buttressed by the necessary and proper clause. See US Const. Art I, § 8. These treaties (I) are made in the same way that normal Federal laws are made, through bicameralism and presentment. CE agreements can either be made ex post or ex ante – giving the power to the president to negotiate and sign a treaty in a particular area beforehand, or executing laws pursuant to a treaty afterwards. A key difference between CE agreements and the Article II treaty power is that CE agreements are limited in scope to those powers enumerated in Article I, while the Article II treaty power has no such limitation (one could conceivably use the treaty (D) power to pass laws outside the scope of Article I powers, notwithstanding that the current commerce clause understanding at SCOTUS is practically unbounded).

Lastly, there are Sole Executive Agreements. These have been made since the founding, and have their source of power in Article II. It is a bit unclear where this power comes from – some of it could be the expansive “sole organ” theory of foreign relations and the Hamiltonian wide ranging “vesting clause” argument – that all historically executive powers of the Crown are located within the President including broad foreign relations powers. Typically these agreements tend to relate to claims settlement, small military matters, or recognition of foreign governments (which has its own clause within Article II – the “receive ambassadors” clause). Though they are made solely by the President, they are binding treaties under international law in the same manner as treaties (D) and CE agreements.

While not technically treaties, the executive also has the power to enter into “political commitments.” These are a bit outside the scope of this post as well, as they are not binding under international law and are not treaties in the international sense. See Vienna Convention, Art. 1 (“‘Treaty’ means an international agreement concluded between States.”). These agreements use “should” type language instead of “shall” type language and are meant to be non-binding. These commitments are enforced by the actions of the parties, but not by any international legal framework. The Iran Deal concluded in the past few years is a good example of a non-binding commitment.

With this multitudinous set of ways that the United States can enter into a treaty, there is a historical gloss, created through practice, that determines which mechanism is used for what type of treaty. Legally, almost all agreements can be made with any of the methods, but in practice certain patterns emerge of what agreements use which process. For instance, important international commitments such as arms control treaties generally pass through the Senate. Additionally, there has been a sizable shift away from the traditional treaty power as time has passed.

Period Treaties Executive Agreements
1789 – 1839 60 27
1839 – 1889 215 238
1889 – 1939 524 917
1939 – 1989 702 11,698
Total 1,501 12,880

Source: My Class

It is important to note that there are also some interesting questions about what operative effect of treaties once they are signed. The Supremacy Clause states that “all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.” US Const. Art VI. Some treaties thus immediately become domestic law (if they are designed to) and are thus self-executing, while others need to be paired with legislation that adapts them and makes them operative for our legal system. The details of this are beyond the scope of what I want to talk about today.

What about withdrawing from treaties?

Some agreements are almost self-evidently possible to withdraw from. In areas where the President has unilateral power to enter an agreement, as in the case of Sole Executive Agreements and political commitments, the President also has the power to exit these agreements in the same way. Either new President could rip up the Iran Deal immediately.

It is a little more complicated for agreements made using the other two processes – either with the advice and consent of the Senate, or with overall Congressional approval.

The treaty power, described above, only gives the Senate the power to advise and consent on the making of a treaty. It is silent on the process for withdrawing from an agreement already made. By implication, one could argue that the Constitution implicitly would suggest the President should consult with the Senate on the abrogation of a duly made treaty, but typically this is not how the Constitution works. Other areas of Congressional involvement in Article II like appointments do not include the corresponding power to stop the President from firing an Executive officer. If one believes the vesting clause argument, this silence implies that the residual “executive power” to withdraw from treaties was left within the President alone due to the beginning of Article II.

The closest analogue to a pure treaty withdrawal case is found in Goldwater v. Carter, 444 U.S. 996 (1979). In that case, President Carter terminated a treaty with the Republic of China as part of his recognition of the People’s Republic of China. The termination was challenged by Congress, which made the argument that the Constitution required 2/3 Senate approval to withdraw from the treaty (the treaty included a provision to terminate after 1 year’s notice). In a plurality opinion, the court held that it was a nonjusticiable political question and that the court would not interfere in the President’s conducting of foreign relations (citing Justice Jackson’s broad conception of foreign relations power in his concurring opinion in Curtiss-Wright). The lack of a constitutional provision on treaty termination, and the fact that the President was also using the recognition power, also seemed to hold weight in the case. However, there was not a strong rule that came out of it (and later cases might hold that this is not a political question given changes in the law). This is the only real legal authority we have on the constitutional question, and supports that the President can likely terminate a treaty unilaterally (as long as their is a withdrawal provision, at least – it might be possible even if there is no explicit withdrawal provision but this is mostly a reading between the lines of the constitutional silence).

Congressional-Executive Agreements are a little more complex. In addition to being binding under international law, these agreements are also passed by Congress so have the effect of being domestic law. The President does not have the power to overrule domestic laws duly passed through Constitutional processes, and must “take care” to execute them. It seems highly unlikely that they could be terminated without Congress passing a new law removing those laws on the books, if there is no withdrawal provision.

Many CE agreements have these exit provisions that allow for exit processes exit processes. NAFTA has a provision that allows a party to withdraw 6 months after providing written notice. A withdrawal provision of a CE agreement would be part of domestic law, and could be exercised. Again, when there is a question of who can activate a withdrawal provision, the historically strong constitutional gloss on the President’s powers to conduct foreign relations seem to make him the most likely candidate to exercise the exit lever, but this is untested at law.

So what might happen with current international agreements?

Given this background, what does it mean for some of our current agreements? I’ll just consider a few that have been mentioned previously and drawn the more ire during the campaign.

  • NAFTA – The North American Free Trade Agreement between the United States, Canada, and Mexico is a Congressional-Executive agreement. It was passed with Congressional approval in 1993. Article 2205 of the agreement allows a party to withdraw 6 months after providing written notice. While it would probably be seriously litigated, there is a good case that the President could activate this provision unilaterally and pull out of the treaty without Congressional Approval. However, it is a little more complicated what would happen to actual policy – killing the NAFTA treaty would not undo the federal law that was enacted to change trade rules towards Canada and Mexico. Domestic legislation would be needed to return entirely to the pre-NAFTA status quo.
  • TPP – The Trans Partnership is still not fully complete, but it will go through fast track authority and be subject to an up or down Congressional vote. Article 30.6 provides a similar withdraw provision to NAFTA. It is likely that the President can exit the treaty if it is in place, and even easier if it still needs to be proposed to Congress to be approved.
  • Iran Deal – As a strictly informal agreement, the Iran Deal can be unquestionably terminated immediately by any President.
  • NATO – The North Atlantic Treaty Organization was formed in 1949 in a traditional treaty structure, with the Senate providing advice and consent under Article II. Interestingly, the balance of the termination power for NATO probably swings even closer to the President. Like Goldwater v. Carter, there is another enumerated power implicated – the Commander in Chief power. NATO is inherently a military alliance. It is likely the President could also unilaterally withdraw from it. NATO itself, in Article 13, confers withdrawal powers after the treaty has been in force for 20 years.
  • WTO – The World Trade Organization also has a similar withdrawal provision to NAFTA, although it is a bit more complicated in terms of overlapping agreements over time. It is possible that a President could also unilaterally withdraw.

Anyway, does not seem like a pretty picture. I might edit this later, but I wanted to finish it up before election returns start coming in. It seems as though there are some significant unilateral powers on the line tonight that I would prefer were not exercised.

Later note – not totally related, but this document from the Peterson Institute for International Economics has a great analysis of the unilateral trade powers of the executive in terms of tariffs and other trade barriers. Relevant for the Trump world, and likely to be used early on in his presidency.

A company ‘overpaying’ its employees

http://nyti.ms/20WFZqB – Managed by Q’s ‘Good Jobs’ Gamble

Interesting case study on how long term thinking can help a business.

Managing and optimizing quarter by quarter encourages focusing on cost alone. Growth takes time and is uncertain, while cutting an employee is immediate and controllable. I was lucky enough during my time as a consultant to focus primarily on the revenue side, which to me always felt more additive and positive.

Underpaid employees and turnover are costs too. Costco has been successful with higher people costs compared to companies like Walmart. It’s interesting that this can work for Q, when most people would assume that a cleaning business would be tough to run without lowering costs because it was so commoditized.

There’s also a parallel here to ownership. Well paid employees would naturally feel more connected and a part of the entity. It’s the same as how people treat a rental versus owning a home – without that feeling of ownership no one takes the same care to guard a resource. If you want your employees to be good ambassadors, they need to be bought in in a meaningful way.

The current corporate governance system seems to encourage bad leadership with myopic short term-ism. Hopefully this company will be successful and more will follow!

Why Mars?

Could you go over the why for going to Mars?

As I see it, there are three reasons why Mars should be the goal of our space program: and in short, it’s because Mars is where the science is, it’s where the challenge is, and it’s where the future is. It’s where the science is because Mars was once a warm and wet planet, it had liquid water on its surface for more than a billion years, which was about 5 times as long as it took life to appear on Earth after there was liquid water on here, so if the theory is correct that life is a natural development from chemistry, where if you have liquid water, various elements and enough time, life should have appeared on Mars even if it subsequently went extinct, and if we can go to Mars and find fossils of past life, we would have proven that the development of life is a general phenomenon in the universe. Or if go to Mars and find plenty of evidence of past bodies of water but no evidence of fossils or the development of life, then we can say that the development of life from chemistry is not sort of a natural process that occurs with high probability but includes some freak chance and we could be alone in the universe. Furthermore if we can go to Mars and drill, because there’s liquid water underground on Mars, reach the ground water, there could be life there now. And if we can get hold of that and look at it and examine its biological structure and biochemistry we could find out if life as it exists on Mars is the same as Earth life because all Earth life at the biochemical level is the same—we all use the same amino acids, the same method of replicating and transmitting information, RNA and DNA, all that—is that what life has to be, or could life be very different from that? Are we what life is, or are we just one example drawn from a much vaster tapestry of possibilities? This is real science, this is fundamental questions that thinking men and women wondered about for thousands of years, the role of life in the universe. This is very different from going to the moon and dating craters in order to produce enough data to get a credible paper to publish in the journal of geophysical research and get tenure, okay? This is you know hypothesis driven, critical science. This is the real thing.

Second, the challenge. I think societies are like individuals, we grow when we challenge ourselves, we stagnate when we do not. A humans to Mars program would be tremendously bracing challenge for our society, it would be tremendously productive particularly amount youth. Humans to Mars program would say to every kid in school today, “Learn your science and you could be an explorer of a new world.” We’d get millions of scientists, engineers, and inventors, technological entrepreneurs, doctors, medical researchers out of that, and the intellectual capital from that would enormously benefit us. It would dwarf the cost of the program.

And then finally, it’s the future. Mars is the closest planet that has on it all the resources needed to support life and therefore civilization. If we do what we can do in our time—we establish that little Plymouth rock settlement on Mars—then 500 years from now, there’ll be new branches of human civilization on Mars and I believe throughout nearby interstellar space, but you know, look: I ask any American what happened in 1492? They’ll tell me, “Well Columbus sailed in 1492,” and that is correct, he did. But that is not the only thing that happened in 1492. In 1492, England and France signed a peace treaty. In 1492, the Borgias took over the papacy. In 1492, Lorenzo De’Medici, the richest man in the world, died. Okay? A lot of things happened, if there had been newspapers in 1492, which there weren’t, but if there had, those would have been the headlines, not this Italian weaver’s son taking a bunch of ships and sailing off to nowhere, okay? But Columbus is what we remember, not the Borgias taking over the papacy. Well, 500 years from now, people are not going to remember which faction came out on top in Iraq, or Syria, or whatever, and who was in and who was out and you know….but they will remember what we do to make their civilization possible, okay?

So this is the most important thing we could do, the most important thing we could do in this time, and if you have it in your power to do something great and important and wonderful, then you should.

-Dr. Robert Zubrin, President of the Mars Society

Thanks to /u/LegendofSki for the transcription.

Campaign Finance – Last Lunch Talk of the Semester

Today, I went to my final lunch talk of the semester with Congressman John Sarbanes on his proposed bill – H.R.20 to support citizen funded elections and reduce the power of “special interest” in Washington.

I won’t go into the policy itself too much, as there is a lot written about it. I am generally supportive of the policy goal and think citizen funded elections seems to be the most reasonable way to implement it given constitutional and institutional pressures. The Congressman spoke about his proposed bill as creating a new power base outside of the lobbying machine to pull power away from it, and that that overall strategy was distinct from “containment” strategies that seek to cut the funding off at the source (e.g. through Constitutional amendment, somehow putting limits on SuperPACs). It’s right that money will find its way around any barriers erected to stop it, which makes the new power base appealing.

I think there is a 3rd strategy that might be useful here that does not get as much play in the discussion – simply designing policies in a way to make money more irrelevant. Not foolproof, but perhaps deserving of discussion. For instance, our tax code invites lobbying money to be spent on its provisions because it is so individualized to different industries, with tax credits for these businesses, allowances for these businesses, etc. The complexity brings with it opportunities to shape policy to benefit monied interests. If the tax code were more neutral and simple, it would not be as effective to mold it, and the efficacy of a lobbying dollar would go down. Tough to do, but just another thought. (I remember research that pegged the ROI on a lobbying dollar to something like 200x the money spent – while there is still that kind of benefit to be gained, companies will spend).

I am skeptical of the approach of pushing for this to be made law in the near future. Call me a cynic, but while there are a lot of co-sponsors for the bill, I have a hard time believing it will be passed in the current climate. Congress isn’t likely to vote to make the lives of its members more difficult – lobbying money is hard to swear off. Members are used to pandering to K street and not to their own constituents for money. More importantly, citizen funded elections are likely to reduce the incumbent advantage. I’m sure the statistics may have changed slightly, but a few years ago, it was true that if an incumbent in Congress ran for reelection, they would win 93% of the time in the House, and 83% of the time in the Senate. By shifting the money base back to districts, instead of through the lobbying apparatus, it makes it more likely for new candidates to enter races with funding, and reduces the advantage of being in Washington already. Who would enact a policy that would make it more likely for them to lose their job?

With ‘pilot’ programs showing the efficacy of the policy in more localized elections, the better path may be referendums on the state level that are passed by citizens and not as likely to be stifled by legislative bodies. Congressman Sarbanes was right when he said that voters will begin to put more pressure on this at the Federal level if they see it working well in their own states. That might be the most likely way to push reform through.

1491

1491 – Before it became the New World, the Western Hemisphere was vastly more populous and sophisticated than has been thought—an altogether more salubrious place to live at the time than, say, Europe. New evidence of both the extent of the population and its agricultural advancement leads to a remarkable conjecture: the Amazon rain forest may be largely a human artifact

The Amazon rain forest as a ‘human artifact’? What kind of logical reasoning could guide us down a path where that became a plausible conjecture? At least that’s what I thought for ages, as I looked at the tagline of this longform piece that languished in my Pocket queue for months and kept skipping it over. However, I picked it up this morning, and found that two interesting assumptions were challenged – assumptions about the age of exploration and afterward that I had and that I think much of the Western world does too.

From a young age I learned these assumptions. One was that while there were incredibly sophisticated native peoples, including the Iroquois that I learned about in grade school – the local native peoples near that we all learn about in New York state – and the great civilizations of the Aztec, Olmec, Maya, Inca, and others, the landscape encountered by the European explorers was largely untamed by society. While Europe was more dominated by man, there were vast grasslands, forests, and jungles in the New World with little habitation and untouched by human influence. The common trope is that the New World was much more natural, and that native peoples did not have the same destructive influence on their landscape as their Old World brethren.

The second assumption is similar, but more pertinent to the contemporary world, and deals more about how we think about ecosystems – when we consider and study nature, we often consider human influence as alien to nature’s workings. We consider the landscape to be harmonious before humans have a chance to influence it, and when we do it is not seen as part of the ecosystem itself. Today, that is a key assumption of the environmental movement (among others) that seek to minimize our influence so that nature can return to its normal course and continue to propagate for future generations.

These two manifest themselves in how Western society has viewed the opening of the New World. As exploration, but also as destruction both of the landscape and the societies that called it home. This research, and the current thinking on the scale of the population pre-Columbus, drastically changes this calculus. It seems the human suffering might have been far greater, and the environmental changes more subtle – more of degree and philosophy.

Some of the passages really struck me, and helped to really make me think about the world of 1491.

At the invitation of a friend, he spent a few months in northern Mexico, which is full of Spanish-era missions. There he poked through the crumbling leather-bound ledgers in which Jesuits recorded local births and deaths. Right away he noticed how many more deaths there were. The Spaniards arrived, and then Indians died—in huge numbers, at incredible rates. It hit him, Dobyns told me recently, “like a club right between the eyes.”

Nearly 100 million people may have lived in pre-Hispanic America – what an incredible statistic (and just crazy that estimates swing on orders of magnitude). I want to look up what the latest thinking is and what the estimates are now. It may be that we have vastly underestimated the scale of the civilizations that were in this land. When I visited Teotihuacan, it was an impressive reminded of how much fades with time. Incredibly basic details of earlier societies are missing and unknown to us. There is so much of history that we do not know.

Like people everywhere, Indians survived by cleverly exploiting their environment. Europeans tended to manage land by breaking it into fragments for farmers and herders. Indians often worked on such a grand scale that the scope of their ambition can be hard to grasp. They created small plots, as Europeans did (about 1.5 million acres of terraces still exist in the Peruvian Andes), but they also reshaped entire landscapes to suit their purposes. A principal tool was fire, used to keep down underbrush and create the open, grassy conditions favorable for game. Rather than domesticating animals for meat, Indians retooled whole ecosystems to grow bumper crops of elk, deer, and bison. The first white settlers in Ohio found forests as open as English parks—they could drive carriages through the woods. Along the Hudson River the annual fall burning lit up the banks for miles on end; so flashy was the show that the Dutch in New Amsterdam boated upriver to goggle at the blaze like children at fireworks. In North America, Indian torches had their biggest impact on the Midwestern prairie, much or most of which was created and maintained by fire. Millennia of exuberant burning shaped the plains into vast buffalo farms. When Indian societies disintegrated, forest invaded savannah in Wisconsin, Illinois, Kansas, Nebraska, and the Texas Hill Country. Is it possible that the Indians changed the Americas more than the invading Europeans did? “The answer is probably yes for most regions for the next 250 years or so” after Columbus, William Denevan wrote, “and for some regions right up to the present time.”

The scale of potential ecological changes wrought by native peoples caught me a little off guard, just because it is such a different conception of man’s interaction with nature. Managing environments at that level of scale is an impressive feat, and difficult for me to grasp. It is an elegant way of surviving more symbiotically with nature, in a way that is more self-reflective and aware of our presence and potential to shape the environment. It is very compelling, although I don’t know if I can really wrap my head around the Amazon being artificially reinforced / created.

Guided by the pristine myth, mainstream environmentalists want to preserve as much of the world’s land as possible in a putatively intact state. But “intact,” if the new research is correct, means “run by human beings for human purposes.” Environmentalists dislike this, because it seems to mean that anything goes. In a sense they are correct. Native Americans managed the continent as they saw fit. Modern nations must do the same. If they want to return as much of the landscape as possible to its 1491 state, they will have to find it within themselves to create the world’s largest garden.

Our role in the environment needs to be self-interested, but with the understanding that our place in the hierarchy of Earth’s inhabitants gives us both magnificent and terrible powers to guide our world. The current debate on climate change would be well to absorb this sentiment. It is not at the extremes between “there is no climate change” and “human influence should not warm or change the planet”. What we instead must do is understand we are changing it and we should – we just need to be more careful and deliberate about what changes we make, so we can be stewards of the Earth not for 100 years, but for a hundred thousand.

Happy 4th

Happy 4th of July – in celebration, I’m going to share something from a while ago that I wrote talkig about space, and why we should continue to push into the unknown. One of the coolest efforts in our country’s history was the work that put us on the Moon. Definitely worth remembering on this day.

Only twenty four human beings have left Earth’s orbit; only half of those have walked on the face of another celestial body. We chose to go to the Moon for many reasons, but partially because it was difficult. It stretched our capabilities as a people and reflected some of the best qualities of humanity.

That was over 40 years ago. Since then, we have neglected our drive to explore the universe and set as ambitious a goal to guide us.

The costs of space exploration are not trivial, and it took over one hundred billion dollars to reach the Moon. For every mission and launch, another Earthly priority is set aside. But we should not forget the employment gains, economic growth, and transformative leaps in fields as far apart as computing, rocketry, and medicine that resulted from space exploration. There are also the intangibles – fulfilling humanity’s inherent desire to grow and explore, and serving as a beacon to inspire millions to study the sciences and build, create, and discover.

We live on a fragile and pale blue dot. From cataclysmic cosmic events to more familiar disasters, we face a variety of existential threats. Moving beyond the Earth itself is the best insurance policy we have to ensure that humanity endures against the passage of time.

We should challenge ourselves to dream bigger and push forward into the unknown. Do we want to be the intelligent species that never left home?