Occasionally I give talks to groups about the problem of judicial supremacy—the unconstitutional doctrine that the Judicial Branch has unique power to interpret the Constitution and can overrule the other two branches and overrule the states without question.
Anyway, because this is a hobby horse of mine, my eyes were riveted to some of Justice Scalia's last writings—specifically, his dissent in the Obergefell case (same-sex marriage). The point of this language has nothing to do with same-sex marriage—it has to do with whether courts actually have us much power under the Constitution as we have allowed them to assert.
In my opinion, Scalia left us a coded hint in his dissent on the gay marriage decision. It concludes:
“With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.”
What I think Scalia is suggesting is that the Founders purposely designed the Court without the power to enforce its opinions, and that states and the other two branches of the federal government actually have more power to simply ignore SCOTUS decisions than they know they have.
What, for instance, would happen if a state simply decided to ignore a controversial SCOTUS case? What would happen if a president simply ignored a nationwide injunction issued against the Exective Branch by some mid-level judge in Washington State? What, exactly, would happen?
It's pretty clear by now that the Trump administration's favorite way to put pressure on another country to accomplish some political goal is to threaten and impose tariffs.
In fact, tariffs have become an all-purpose foreign policy tool for the Trump administration. China's theft of IP and unfair business practices? Tariffs. China's supposed currency manipulation? Tariffs. China's trade surplus with the United States? Tariffs.
The US steel industry not doing great? Tariffs.
And now, trying to get Mexico to do more to stem the flow of migrants into the US? Well, tariffs, of course.
Now, the common retort to criticism of tariffs is something along the lines of "Well, at least he's doing something!" Or, "Don't you think we should do something about China's IP theft\China's currency manipulation\hordes of illegal immigrants from Mexico?"
Well, yes, actually. I DO think the president should be addressing all of those things, and I'm glad he is. I just don't think tariffs are the only or the best tool to accomplish those purposes. There are other tools in the quiver besides tariffs.
President Reagan's 1988 radio address on free trade, delivered soon after the U.S.-Canada Free Trade Agreement was signed, remains timely.
My fellow Americans:
This week, as we prepared for Thanksgiving, Canada held an important election, and I'm pleased to again send my congratulations to Prime Minister Mulroney. One of the important issues in the Canadian election was trade. And like our own citizens earlier this month, our neighbors have sent a strong message, rejecting protectionism and reaffirming that more trade, not less, is the wave of the future.
Here in America, as we reflect on the many things we have to be grateful for, we should take a moment to recognize that one of the key factors behind our nation's great prosperity is the open trade policy that allows the American people to freely exchange goods and services with free people around the world. The freedom to trade is not a new issue for America. In 1776 our Founding Fathers signed the Declaration of Independence, charging the British with a number of offenses, among them, and I quote, "cutting off our trade with all parts of the world," end quote.
On Tuesday, IPI resident scholar Dr. Merrill Matthews joined CGTN-TV’s “The Heat” host Anand Naidoo to discuss President Donald Trump’s state visit to the United Kingdom and what it means for future trade relations between the two powers.
Despite the president’s optimistic statements at the St. James’s Palace joint press conference with Prime Minister Theresa May, Matthews voiced skepticism of the U.S. making a “quick deal” on trade post-Brexit.
At this year’s IPI World IP Day Celebration, IPI was honored to host Congressman Doug Collins, ranking member of the House Judiciary Committee, who called for simplifying intellectual property policy.
“We make intellectual property too hard sometimes,” he said. “We make it ethereal, it’s out there in the realm, only the experts know how to talk about it.”
I thought I was already cynical enough. I guess I was wrong.
Over the years I’ve seen elected Republican politicians telling voters about how strongly they stood for “free-market principles” and then vote in ways that are completely contrary to those principles. I’ve seen it so many times that I didn’t think I could be surprised.
But I was wrong.
New legislation before the Texas legislature wrongly assumes that private sector use of eminent domain is more problematic than government use.
In his March 4 testimony before the Texas state affairs committee regarding SB 421, IPI president Tom Giovanetti pointed out the troubling assumption underlying the bill—that there is something wrong or potentially abusive about allowing the private sector to use eminent domain.
Last Thursday I attended the release reception for the 2019 edition of the U.S. Chamber of Commerce’s International IP Index, which is produced by the Chamber’s Global Innovation Policy Center (GIPC). The Pugatch Concilium does the research and writes the report, under the direction of my friend, Meir Pugatch. It was great to see Meir again after several years.
The Index is an attempt to rank 50 countries based on their IP systems, under the assumption that stronger IP protections are positive for encouraging innovation and investment in a country. Many studies have demonstrated that higher levels of IP protection correspond with higher levels of foreign direct investment and the resultant economic growth, and the Index also contains some of that data.
The Index also contains a section talking about general international IP trends, which in general are not good. While some developing countries are seizing the advantage of stronger IP protection (India, Brazil, Argentina), many countries are undermining IP protection (Chile, Colombia, Peru, Russia).
In the US, which has been slipping in the rankings because of some unfortunate Supreme Court decisions and the PTAB process at the Patent Office that has been cynically abused to invalidate patents, things have turned back up. The new USMCA trade agreement (as yet not adopted or implemented) increases IP protection, but the major fact that lifted the US from 12th place to 2nd place in the patents ranking is the change at the top of the U.S. Patent Office. New Director of the Patent Office Andrei Iancu has implemented significant, pro-patent procedures throughout the Office but especially in the PTAB process, which has restored the process to something approaching its original intent, instead of the abusive way it operated under the previous USPTO regime.
The problem with such improvements, of course, is that they are easily undone by a future administration, which means we still need legislation like the Stronger Patents Act to use the force of law to either eliminate the PTAB process, or lock-in the higher standards imposed by Director Iancu. Such legislation should reverse some of the recent Supreme Court patent decisions as well.
After meeting with U.S. officials in Beijing this week, China is in turn expected to send delegates to Washington for continued trade talks.
IPI’s Dr. Merrill Matthews joined a panel on CGTN’s The Heat to discuss whether these meetings are laying hopes for a resolution on trade.