The Supreme Court is hurting Biden’s foreign policy, too

From: POLITICO's National Security Daily - Thursday Jun 30,2022 08:15 pm
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By Alexander Ward and Quint Forgey

 Fencing surrounds the U.S. Supreme Court as it nears the end of its term.

The Supreme Court now appears to be giving the Biden administration another foreign policy headache when it already has a migraine. | Kevin Dietsch/Getty Images

With help from Josh Gerstein, Connor O’Brien and Daniel Lippman

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In his 2015 book “ The Court and the World,” then-Justice STEPHEN BREYER wrote that the judicial branch must increasingly weigh the power of its decisions on other nations. Navigating the vicissitudes of American democracy was vital so “our example will continue to be influential,” he wrote, otherwise “the world will follow someone’s example if not ours.”

If there’s anyone who wishes the Supreme Court had less influence on America’s global standing right now, it’s certainly President JOE BIDEN.

He entered office hoping to prove “America is back” after four years of DONALD TRUMP and that he could not only “build back better ” at home, but also help others do so around the world. But the Supreme Court of late has turned into a driver of America’s global reputation, harming Biden’s agenda in the process.

At least four foreign diplomats chastised the 5-4 decision to overturn Roe v. Wade during a meal this week at the NATO summit.

In each of the four separate encounters, foreign ministers “initiated the conversation” and “made a point of sharing with me their sense of outrage,” Rep. GERRY CONNOLLY (D-Va.), who leads NATO’s Parliamentary Assembly and who attended the dinner with Secretary of State ANTONY BLINKEN, told our own ANDREW DESIDERIO in Madrid.

“All the reassurances of ‘we’re back’ and ‘don’t look under the curtain of those last four years’ are eroded to some extent with this,” Connolly continued. “It erodes confidence in our system. And that’s pretty important when you’re supposed to be helping to lead a military alliance to take on the big bad Russians.”

And then this morning, the Supreme Court ruled that the Environmental Protection Agency has only limited authority to regulate greenhouse gases from power plants , dealing a significant blow to the administration’s efforts to curb what Biden deems is the “existential threat” of climate change. In a statement following the decision, the president said that the Court’s 6-3 vote “risks damaging our nation’s ability to keep our air clean and combat climate change.”

In April, top climate envoy JOHN KERRY warned that the world wasn’t on track to cap global temperatures at 1.5 degrees celsius above pre-industrial levels. "Let me be absolutely clear: we're heading to well over 2 degrees right now –– 2.7, or something like that,” he said. "We're way behind, and we're not going to catch up" by the end of this year.

"The most crucial point, at least in light of the most recent opinions, is that the removal of presidential power to regulate 'major issues' deprives the president of his power to address major global problems through international agreements," said DAVID GOLOVE, a professor at the New York University School of Law. "These agreements depend both for their validity and for their practical effect on the president’s existing authorities domestically to implement them. The Court has now taken those away, at least for greenhouse gas emissions ... with the promise of more — far more — to come."

It’s not all bad news for Team Biden: The Court today also rejected a major challenge to the administration’s effort to shut down Trump’s “Remain in Mexico” program that forced many asylum seekers trying to cross the U.S. border to return to Mexico to await hearings before U.S. immigration judges. Chief Justice JOHN ROBERTS, in the majority opinion he penned, noted that a lower court’s ruling enforcing the Trump-era policy “imposed a significant burden upon the Executive’s ability to conduct diplomatic relations with Mexico.”

Such a ruling is consistent with the High Court’s yearslong tradition of strengthening the president’s hand in foreign affairs. Ever since a decision in the 1936 United States v. Curtiss-Wright Export Co. case that weakened Congress’ role in setting America’s global course, the executive branch has assumed more and more foreign-policymaking authority. In 2018, for example, the justices ruled in a 5-4 vote that Trump’s travel ban could remain in place, partly because Congress had long delegated border issues to the president.

The Supreme Court now appears to be giving the Biden administration another foreign policy headache when it already has a migraine. It’s a problem Biden can ill-afford at such a crucial time, and the problem for him (and potentially future presidents) is that the Supreme Court’s influence on America’s standing and the administration’s objectives is poised to grow.

Biden seems to recognize this, though he defends his performance. "America is better positioned to lead the world than we ever have been," he told reporters at the NATO summit. "The one thing that has been destabilizing is the outrageous behavior of the Supreme Court of the United States on overruling not only Roe v. Wade, but essentially challenging the right to privacy."

The Inbox

5 LESSONS FROM THE NATO SUMMIT: So after two days of intense talks during the NATO summit in Madrid, what, actually, came out of it? Our own PAUL McLEARY has the five takeaways you need:

  1. Per the alliance’s new 12-page “Strategic Concept,” NATO “cannot discount the possibility of an attack against Allies’ sovereignty and territorial integrity” by the Kremlin.
  2. The North Atlantic Treaty Organization is going to focus more on that big country over there in Asia. “China is not our adversary,” NATO Secretary General JENS STOLTENBERG said, unveiling the “Strategic Concept” document on Wednesday, “but we must be clear-eyed about the serious challenges it represents.”
  3. Turkey ultimately backed Sweden and Finland’s accession to NATO, paving the way for them to become the alliance’s 31st and 32nd members. “The costs of the agreement appear to be minimal. Sweden and Finland agree to shun the PKK, the Kurdish terrorist group fighting Turkish forces for independence, and pledged to drop the military sanctions slapped on Turkey for its invasion of Syria. The White House also publicly backed selling Turkey F-16 modernization kits, a deal that has been on the rocks for months.”
  4. Meet NATO’s new Reaction Force, as the 40,000-strong unit that can deploy within 30 days withers away. “[T]wo NATO officials said the force will be made up of ‘tiers’ with the first being about 100,000 troops ready to fight in 0-10 days, 300,000 troops ready in 30 days, and 500,000 ready in 180 days. It’s still not clear when the planning for these ready forces will be ready, but one official suggested it could be as far out as 2028.
  5. The demise of arms control between the U.S. and Russia is mainly the Kremlin’s fault. “The erosion of the arms control, disarmament and non-proliferation architecture has negatively impacted strategic stability,” the new Strategic Concept paper says. “The Russian Federation’s violations and selective implementation of its arms control obligations and commitments have contributed to the deterioration of the broader security landscape.”

RUSSIAN WARSHIP…: Ukrainian forces forced Russian troops to abandon Snake Island in the Black Sea after pounding the outpost with a barrage of artillery and missiles.

Russia claimed it was leaving the island — made famous by Ukrainian troops on stationed there telling a Russian warship threatening them to, umm, go away — in a “goodwill gesture.” The truth, though, is that the Ukrainians used Western-provided weapons to hit the invaders hard, giving them no choice but to abandon the strategic location.

“They couldn’t stand the weather — the ground was burning under their feet, the sea was boiling, the air was too hot,” Ukraine’s Defense Ministry snickered on Twitter.

Aside from the symbolism, the end of the island’s occupation could open the door to Ukrainian grain exports from Odesa, which is critical for Ukraine's economy and for the global food supply,” the Foreign Policy Research Institute’s ROB LEE tweeted today.

BIDEN PREVIEWS NEW $800M UKRAINE PACKAGE: The U.S. is preparing to announce a new $800 million in new security assistance to Ukraine, Biden said today during a press conference at the NATO summit.

The new tranche, which will add to the $7 billion already dispersed, will include “a new advanced Western air defense system for Ukraine, more artillery and ammunition, counter-battery radars, additional ammunition for the HIMARS multiple launch rocket system we’ve already given Ukraine and more HIMARS coming from other countries as well,” he said.

Earlier in the day, Dutch Prime Minister MARK RUTTE announced that Italy planned to send heavy weapons “similar” to howitzers. But the problem, as POLITICO Europe’s HANS VON DER BURCHARD found out when he contacted the Italian Defense Ministry, is that such a transfer remained “classified.”

In a further embarrassment, traffic police near Naples stopped the howitzers that were on their way to Ukraine.

IT’S THURSDAY: Thanks for tuning in to NatSec Daily. This space is reserved for the top U.S. and foreign officials, the lawmakers, the lobbyists, the experts and the people like you who care about how the natsec sausage gets made. Aim your tips and comments at award@politico.com and qforgey@politico.com, and follow us on Twitter at @alexbward and @QuintForgey.

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Flashpoints

BREAKING — CHANCE OF IRAN DEAL WORSE AFTER DOHA: "The prospects for a deal after Doha are worse than they were before Doha and they will be getting worse by the day," a senior U.S. official told Reuters' ARSHAD MOHAMMED , admitting the new U.S.-Iran talks brokered by European powers are failing. "You could describe Doha at best as treading water, at worst as moving backwards. But at this point treading water is for all practical purposes moving backwards."

Talks to secure America's reentry into the 2015 nuclear deal have long been stalled. The new talks in Doha were billed as a way to break the deadlock. Instead, it appears it only moved the parties further away from a final handshake.

XI VISITS HONG KONG: Chinese leader XI JINPING left mainland China for the first time since the start of the pandemic to effectively sound the death knell for Hong Kong’s democracy.

After quashing pro-democracy protests and bringing the city under the thumb of Beijing, Xi claimed in a short speech that Hong Kong had “risen from the ashes,” per the Washington Post’s THEODORA YU and CHRISTIAN SHEPHERD.

Why make Hong Kong Xi’s first stop in years? Per the Post, “the proceedings are a chance to cement personal power over the Chinese Communist Party by declaring the nation has grown stronger and more united under his rule,” an important message for him to send ahead of a bid to be China’s leader for life.

“Xi Jinping's visit to Hong Kong––after 893 days without leaving the Mainland––is meant to be a victory lap in the advance of the 20th Party Congress this fall where Xi will likely secure a third five-year term as China's top leader,” the Center for a New American Security’s JACOB STOKES wrote to us in an email. “Xi has succeeded in making Hong Kong just another city in China. But in doing so, he has also severed one of the most important links between China and the world--one that played a critical role in enabling China's rise.”

COMMERCE LISTS CHINESE FIRMS FOR HELPING RUSSIA: The Commerce Department added five Chinese companies to an export blacklist following the administration’s allegation that they were aiding Russia’s military.

“The move, effective Tuesday, marks the first time U.S. officials have taken action against Chinese companies for allegedly supporting Russia in the war. It also comes as U.S. officials and others have continued to say that China has generally not sought to help Russia militarily,” The Wall Street Journal’s KATE O’KEEFFE reported today.

The five companies are Connec Electronic Ltd., King Pai Technology Co., Sinno Electronics Co., Winninc Electronic and World Jetta (H.K.) Logistics Ltd.

National security adviser JAKE SULLIVAN said that the U.S. doesn’t want China to support Russia’s military with equipment or help it to evade sanctions. Importantly, he told reporters on the way to the NATO summit in Madrid that China to date has not violated those principles “ at scale.”

In response to Commerce’s move, the Chinese Embassy in Washington, D.C. said “China’s position on the Ukrainian issue is consistent and clear. We have been playing a constructive role in promoting peace talks and have not provided military assistance to the conflicting parties.”

Keystrokes

INGLIS SPEARHEADING CYBER STRATEGY: An internal White House announcement reveals that National Cyber Director CHRIS INGLIS is leading the development of a cybersecurity strategy for the Biden administration that’s expected to be published by the end of September, reports our own ERIC GELLER.

“Given the coming release of the National Security Strategy (NSS) and the need to reflect, describe and shape ongoing transformations in its cybersecurity dimensions … I have asked the Office of the National Cyber Director (ONCD) to lead the drafting process for a complementary National Cyber Security Strategy, focused on cybersecurity here at home, while reflecting international dependencies,” national security adviser JAKE SULLIVAN told department and agency heads in a May 16 memo.

Inglis “will follow up with next steps on how the ONCD will form and leverage a team comprised of federal departments and agencies with the goal of delivering a publicly releasable NCSS by the end of this fiscal year,” Sullivan wrote.

The most recent National Cyber Strategy, published by the Trump administration in 2018, predates many important cyber incidents and policy developments, from the establishment of CISA to the Colonial Pipeline ransomware attack. The Biden administration’s decision to publish a new strategy signals its desire to present a fresh vision of cyber opportunities and challenges to Americans and foreign governments.

The Complex

FAILED HYPERSONIC MISSILE TEST: A hypersonic missile flight test in Hawaii failed, the Pentagon announced, yet another setback in a program that is consistently rife with problems.

“An anomaly occurred following ignition of the test asset,” Pentagon spokesperson Navy Lt. Commander TIM GORMAN said in the statement, per Bloomberg News’ JON HERSKOVITZ and ANTHONY CAPACCIO.

“Program officials have initiated a review to determine the cause to inform future tests,” Gorman said. “While the Department was unable to collect data on the entirety of the planned flight profile, the information gathered from this event will provide vital insights.”

As Bloomberg noted, this is now “the second unsuccessful test flight of the prototype weapon known as Conventional Prompt Strike. There was a booster failure in its first flight test in October, which prevented the missile from leaving the launch pad.”

GREECE REQUESTS TO BUY THE F-35: Greek Prime Minister KYRIAKOS MITSOTAKIS said Thursday that his government made an official request to purchase 20 F-35 warplanes from the U.S., per Reuters.

"Our intention is to acquire an F-35 squadron with a possible option for a second one. Sending a Letter of Request (LoR) which has happened in the past few days is part of this process," he said at the NATO summit. Mitsotakis expects the F-35s to arrive in Greece sometime in 2027 or 2028.

Greece is in the midst of beefing up its military: “Athens ordered 24 Dassault-made Rafale jets last year for 2.5 billion euros ($2.60 billion) and three navy frigates with an option for a fourth one from France for about 3 billion euros,” Reuters reported.

On the Hill

HOUSE APPROPRIATORS APPROVE STATE-FOREIGN OPERATIONS FUNDING BILL: The House Appropriations Committee approved its fiscal 2023 spending bill Wednesday to fund the State Department and foreign operations at almost $65 billion, a 15 percent hike, reports our own JENNIFER SCHOLTES.

In a 32-24 vote, the panel backed the bill for floor action, after adopting several amendments to the draft text the committee released last week. Among the proposals approved by the panel included a measure from Rep. GUY RESCHENTHALER (R-Pa.) that would bar funding from going to China’s EcoHealth Alliance, Inc. — the research organization that’s used federal grant money to study coronavirus infections among bats.

The committee also adopted an amendment by Rep. STEVE WOMACK (R-Ark.) to bar international assistance from being used to buy Russian-made equipment; an amendment by Rep. BEN CLINE (R-Va.) that would impose a slew of new reporting requirements on the federal watchdogs tasked with monitoring the use of aid to Ukraine; and an amendment by Rep. MARIO DÍAZ-BALART (R-Fla.) that would bar funding from being used to carry out a nuclear agreement with Iran unless Congress reviews the deal.

NDAA FIREWORKS: The House will debate its version of the National Defense Authorization Act when lawmakers return from their July 4 recess, our colleague CONNOR O'BRIEN reports.

Lawmakers will vote on the NDAA the week of July 11. In the meantime, House members have until July 5 to file amendments for the bill with the House Rules Committee, which typically fields hundreds of proposals before the bill heads to the floor.

So far, 35 amendments have been submitted. Expect that number to grow substantially by next week.

Broadsides

PUTIN RESPONDS TO MACHO MOCKERY: Russian President VLADIMIR PUTIN retorted to recent teasing by Western leaders, who trolled him at the G-7 summit in Germany for his tough-guy public image and tendency to go shirtless in propaganda photos, per the Associated Press.

At that meeting Sunday, U.K. Prime Minister BORIS JOHNSON asked his foreign counterparts whether they should leave their jackets on or “take our clothes off” for press photographs. Canadian Prime Minister JUSTIN TRUDEAU also interjected: “We’re going to get the bare-chested horseback riding display.”

Speaking to reporters today in Turkmenistan, Putin responded to the ribbing and said of the Western leaders: “I don’t know how they wanted to get undressed, above or below the waist. But I think it would be a disgusting sight in any case.”

In order to look good, “it’s necessary to stop abusing alcohol and other bad habits, do physical exercise and take part in sports,” Putin said. He also shot back at another insult by Johnson, who argued Wednesday that the Russian leader’s decision to launch an invasion of Ukraine was a “perfect example of toxic masculinity,” per Reuters.

In Turkmenistan today, Putin referenced former U.K. Prime Minister MARGARET THATCHER ’s move to send troops into the Falkland Islands in 1982. “So, a woman took the decision to launch military action. Therefore it’s not an entirely accurate reference from the British Prime Minister to what is happening today,” Putin said.

 

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Transitions

— GINA BENNETT is joining Girl Security as a strategic adviser. She is a distinguished retired member of the CIA’s Senior Analytic Service.

— JAMES ROSCOE has been named deputy ambassador of the British Embassy in Washington. He currently serves as the U.K.’s ambassador to the General Assembly of the United Nations.

— ROBERT WILKIE has joined the America First Policy Institute as a distinguished fellow in the Center for American Security. He previously served as Veterans Affairs secretary under the Trump administration.

–– War on the Rocks founder RYAN EVANS has co-founded a new company, Bedrock SaaS, which he described on Twitter as “a social learning network” for public and private sector professionals “to collaboratively engage in simulations, wargames, coursework, and intelligence streams throughout their careers.”

What to Read

— HANNA ARHIROVA, The Associated Press:‘We Cannot Pause Our Lives’: Ukrainians Begin Rebuilding

— SETH HARP, The Intercept:Foreign Fighters in Ukraine Could Be a Time Bomb for Their Home Countries

— DAN WILLIAMS, Reuters:Israel’s Lapid: From Heart-Throb to the Hot Seat

Tomorrow Today

— The Royal United Services Institute, 6 a.m.:The War in Ukraine and Taiwan’s Defensive Planning — with LEE HSI MIN

— The Commission on Security and Cooperation in Europe, 6 a.m.: Black Sea Security Summit — with BOGDAN AURESCU, YORDAN BOZHILOV, SIMONA COJOCARU, LASHA DARSALIA, OLEKSII REZNIKOV and more”

— The American Security Project, 10 a.m.: Rapid Response Briefing: Unpacking the 2022 NATO Summit — with JAMES STAVRIDIS

Have a natsec-centric event coming up? Transitioning to a new defense-adjacent or foreign policy-focused gig? Shoot us an email at award@politico.com or qforgey@politico.com to be featured in the next edition of the newsletter.

And thanks to our editor, John Yearwood, who is the only other person Putin thinks looks good with his shirt off.

A message from Lockheed Martin:

Our mission is to prepare you for the future by engineering advanced capabilities today.

Many of today’s military systems and platforms were designed to operate independently. Through our 21st Century Security vision, Lockheed Martin is accelerating innovation, connecting defense and digital to enhance the performance of major platforms, to equip customers to stay ahead of emerging threats. Learn more.

 
 

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