Friday, April 13, 2018

Are Electorally Targeted Tariffs a Worrisome Form of Foreign Interference?

by Michael Dorf

Judged by recent stock market volatility, investors keep changing their minds about whether a genuine trade war--with its attendant reduction in overall economic activity--is in the offing. Even if Chinese concessions on technology transfer and tariffs enable us manage to avert a trade war, however, one feature of the heretofore-discussed retaliatory measures by US trading partners warrants consideration, because it poses a question about the legitimate scope of international politics, not just economics. It was widely reported that in choosing products for retaliatory tariffs in response to the Trump administration's announcements of tariffs first on steel and aluminum, and then on a wide range of Chinese products, Chinese government officials sought to concentrate the pain for maximum political effect. Similar efforts were under way by government officials in other countries when it looked like the steel and aluminum tariffs would hit them.

Tariffs on Kentucky bourbon (aimed at Senate Majority Leader Mitch McConnell), Harley-Davidson motorcycles from Wisconsin (aimed at House Speaker Paul Ryan before he announced that he would not seek re-election), and various agricultural products (aimed at Trump voters who are concentrated in rural areas) all appear to be deliberate efforts to exploit the US political system by either putting pressure on GOP congressional leaders who already oppose tariffs to use whatever leverage they have or to induce Trump to back off for fear of alienating voters whose support he needs in 2020 and GOP House and Senate candidates need in 2018.

If one believes (as I do) that Trump poses an existential threat to American democracy and indeed to life on Earth, then one can only regard the prospect of such politically targeted tariffs working as intended as a net positive. One would hope that just enough farmers in swing states sour on Trump as a result of the hard-hitting retaliatory tariffs to deny him a second term and, even before that, to elect enough Democrats to Congress to frustrate his agenda.

But if politically targeted foreign retaliatory tariffs would be welcomed in the current political moment on the theory that desperate times call for desperate measures, we might nonetheless worry about the phenomenon as a general matter. Suppose that Senator Bernie Sanders were calling for an investigation of human rights abuses by the government of a major foreign trading partner, and that country responded by imposing new tariffs on maple syrup or other products closely associated with the Vermont economy. Would we not properly regard such a move as a highly problematic foreign effort to interfere with our democracy?

I think the answer to that question is practically self-evident. Foreign governments have legitimate interests in US policy, just as the US government has legitimate interests in the policies of foreign governments. But when dealing with other sovereigns that are broadly speaking democratic (more about that caveat in a moment), it is generally speaking improper to "go behind" the outward face of the other sovereign's government to exploit its electoral processes.

Let's start with the general principle. The interests of sovereigns sometimes conflict, but, in their relations with one another, each sovereign is generally entitled to be treated as representing the whole of its people. Something like this idea underwrites US constitutional principles, grounded in notions of inherent sovereignty as well as scattered constitutional provisions, that gives the dominant role in foreign affairs to the federal rather than state governments and mostly to the executive (which can speak with one voice) rather than Congress. Seen in this light, tariffs that target Kentucky, Wisconsin, agricultural products in general, or, as in my hypothetical example, maple syrup, seek to undercut the unity of the nation. It may not be illegal in the way that campaign contributions to US candidates for office or independent expenditures by foreign nationals and foreign governments are, but it violates the same general principle.

As with all general principles, this one may not be absolute. For example, a candidate or party for office in a foreign government may favor policies so despicable that the good of aiding the candidate or party's opponents clearly outweighs the concern about interfering with another country's election. It should not be enough that the foreign candidate or party favors policies that another government disfavors, such as tariffs or raising taxes on companies doing business in that country. But where the candidate or party at issue favors grossly undemocratic policies--so much so that his or its victory would effectively spell the end of democratic politics in that country--then action that looks through the current leadership to support a democratic opposition can be justified. That's because the prima facie obligation of non-interference is rooted in respect for each country's own democratic processes, so that a country on the verge of becoming undemocratic is not entitled to that respect.

A fortiori, no general principle forbids interfering with the political processes, or going behind the official voice, of a non-democratic regime. Programs like US support for democratic or civil society institutions in currently non-democratic regimes can be readily justified on such grounds.

Even so, however, the US will often have prudential reasons not to interfere in the internal governance of even non-democratic regimes. Putin reportedly was motivated to undertake his efforts to disrupt the 2016 US presidential election to avenge what he saw as US meddling against his ally in Ukraine--even though from the US perspective, that "meddling" aimed to support a popular uprising against a corrupt and illegitimate regime. In theory, a democratic nation's foreign policy could legitimately provide support for anti-regime forces in a non-democratic country, but in practice, to keep the peace and to prevent meddling by the non-democratic country, interventions in other countries should generally be reserved for egregious conduct, such as genocide.

Finally, I recognize that the US is hardly a perfect democracy. Indeed, it is not even a well-functioning democracy. But few countries are "full democracies." For 2017, the map just linked indicates that only Australia, Canada, Denmark, Finland, Iceland, Ireland, New Zealand, Norway, and Sweden count as full democracies. Even a "flawed democracy" that is growing more flawed over time should be entitled to make its own mistakes, free of interference from other countries, whether the interfering countries are full democracies, flawed ones, or not democracies at all.


Shag from Brookline said...

Trump's proposed China tariffs lack details on specific products exported by China to America. I wonder how the specifics might treat such products imported by tTrump Enterprises: might they be exempted for reasons of national insecurity?

Joe said...

I am watching "The Crown." We are not amused.

A tariff can be used to send a message, including a symbolic one that is focused on a specific product. The question then is how to pick one. Here, the suggestion is that it is used to target specific members of Congress, particularly those with top positions in our government such as the third and fourth in line. This will hurt the "unity" of the nation, but the retaliation has to be judged on the merits. Is such a (to use the term loosely) "reprisal" (which very well might be disallowed under international law) justified?

I think this is a different sort of "meddling" on some level than directly trying to influence a national election. Trump obviously has to look at it in askance, but he is said to be "an existential threat to American democracy and indeed to life on Earth." So, things might be different for the rest of us.

Greg said...

Two thoughts:

Even with President Trump, we get into dangerous territory when we start saying that the ends justify the means, which appears to be the argument you're making here about tariffs. While there might be situations where I would agree with that, I'm not sure that up to this point Trump has done anything that would warrant this kind of argument.

As to the specific policies at issue here, I'm not convinced the base argument is right. While I might be able to get behind the base argument for tariffs aimed at specific members of Congress, Joe's idea of messaging is a reasonable counter-argument. As for the more general cases, aren't the people supposed to be the ultimate sovereign in a democracy? Thus, aiming tariffs where they are most likely to convince the people who would support the acts their government is taking that you object to would seem to be respecting the sovereignty of the democracy you're interacting with. Why should foreign governments be expected to enact retaliatory tariffs aimed to convince people who already agree with them?

I realize the line between this and interference with electoral processes is a subtle one, but I think it counts for more than Professor Dorf is giving it credit for.

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