Published by The Lawfare Institute
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A theme of American history is that global conflicts are not only major political, economic, or military events—they can be milestone legal events as well. The conventional story is one of regression; previous conflicts have led to sedition prosecutions, military tribunals, and mass internment, as well as a general expansion of executive power. But past conflicts have also been associated with expansions of the franchise, desegregation of the workplace, and an enlargement of constitutional rights.
In a forthcoming article, I argue that today’s principal conflict—a deepening rivalry between the United States and China—is beginning to reprise historic patterns associated with foreign conflict and American law. As in earlier periods, the politics of threat is producing downstream effects on our law. In some areas, it is eroding rights, concentrating power, and hampering the even administration of justice. In more limited areas, it has led to a modest expansion in rights and entailed some checks on executive overreach.
U.S.-China competition today is not a literal war of violence, of course. Nor is it, as some have argued, wholly analogous to the Cold War. But in its politics, its rhetoric, and its competitive dynamics, the bilateral relationship is starting to resemble earlier conflicts. And those resemblances, in turn, are producing familiar effects on our law.
Start with rights. History teaches that conflicts can erode rights and liberties, with especially harmful effects on groups with imputed ties to a geopolitical adversary. Japanese American communities bore the brunt of these effects during World War II, as did Muslim communities during the “war on terror.” Rights contraction of this kind is rooted in the executive’s incentives to take expansive action in times of crisis, sometimes based on a subjective belief in state necessity, other times owing to pretext or pressure from political rivals. Rights-restrictive acts are often accompanied by a decline in legal rationality, spurred by wartime ideological or nationalistic fervor—the sort that likely affected prosecutors who convicted dissenters during World War I, or judges during the Cold War.
The new global conflict has eroded rights in several areas. Perhaps the most well-known example involves federal efforts to combat Chinese industrial espionage. In 2018, the Justice Department launched a “China Initiative” to pool resources into combating what was a genuine and serious problem. But in practice the initiative led to a string of dropped charges against, and high-profile acquittals of, researchers of Chinese ancestry, prompting calls for its abolition. Law scholar Margaret Lewis argued that the initiative “conflate[d] ideas of government, party, nationality, national origin, and ethnicity and meld[ed] them into an amorphous threat,” creating, in effect, a “threat by association.” Such a tendency manifested in other agencies. In 2021, the Senate Commerce Committee found that a Commerce Department security unit had “mutat[ed] ... into a rogue unaccountable police force” that “targeted department divisions with comparably high proportions of Asian-American employees.” The committee concluded that these activities “likely resulted in preventable violations of civil liberties and other constitutional rights.”
These events evoke history in troubling ways. As with earlier red scares, espionage fears have led to a rapid acceleration in questionable spy investigations. A former U.S. attorney for the Southern District of California wrote that “the rising percentage of [exonerated] Chinese defendants ... suggests that investigators and prosecutors, pressured to meet higher prosecution expectations, are stretching the facts and jumping to unwarranted conclusions.” While there was no definitive proof of discrimination, the Justice Department terminated the initiative in 2022, citing the “harmful perception that ... we in some way view people with racial, ethnic or familial ties to China differently.” Several senators, however, have since introduced legislation to restore the program, blaming its demise on the work of “woke activists.”
Recent attempts to ban Chinese mobile applications have also raised civil liberties concerns. In August 2020, President Trump issued two orders—soon enjoined—that would have disabled two Chinese social media companies—TikTok and WeChat—from operating in the United States. The orders, framed as national security measures, raised significant speech concerns. Law scholar Erwin Chemerinsky submitted a declaration in one of the follow-on lawsuits warning that the WeChat order amounted to a “complete ban” of a newspaper or website. Plaintiffs in that case argued that 19 million U.S.-based WeChat users relied on the application as their “primary source of communication and commerce,” including, for example, a mental health nonprofit that used it to converse with its non-English-speaking patients. A federal judge in the WeChat case issued an injunction on First Amendment grounds; a judge in one of two TikTok cases did so on statutory grounds while noting serious speech concerns.
While apps such as TikTok present genuine security concerns, the Trump administration’s approach to these challenges appears to have owed more to threat politics than to evidence-based threat assessments. Issued three months before the election, they were likely motivated by the president’s desire to bolster his anti-China credentials and to engineer the sale of TikTok to an allied American company. All three federal district judges involved in these cases noted the thinness of the administration’s threat analysis. Judge Carl Nichols, a Trump appointee, wrote that while “the government has provided ample evidence that China presents a significant national security threat” generally, “the specific evidence of the threat posed by [TikTok] ... remains less substantial.”
Other examples of rights contraction have occurred subnationally. Of the over 100 anti-China laws proposed or enacted by state legislatures in recent years, many have taken the form of barring a person or entity linked to China from engaging in certain transactions within the state or availing themselves of state-provided resources—the right to attend universities in Texas, for example, or to purchase real estate in Alabama. While many of these proposed laws have languished or undergone significant moderation prior to enactment, other rights-restrictive proposals are now binding law. SB 264, notably, bans all Chinese citizens domiciled in China from purchasing real property anywhere in Florida, with narrow exceptions. Violators will have committed a third-degree felony, punishable by up to five years’ imprisonment. The law also imposes registration requirements on those who purchased properties prior to the law’s operative date. A number of plaintiffs—Chinese students, health care workers, asylum applicants—have challenged the law for violating equal protection, due process, the Fair Housing Act, and the Supremacy Clause.
SB 264 recalls several historic patterns. First, it is rooted in a familiar politics of threat. The law was part of a trio of China-focused bills signed by Gov. Ron DeSantis shortly before he announced his bid for president. Anti-Chinese laws enacted during the Chinese Exclusion period (1882-1943) were almost invariably enacted “on the eve of national elections.” Second, the law evokes early 20th-century alien land laws that effectively banned Asians from acquiring property. Alien land laws sought both to protect American labor and to combat threats from Japan, a rising power whose people were seen as a “fifth column ... waiting to be activated at the emperor’s command.” Like these earlier laws, SB 264 sweeps far more broadly than any fair notion of threat would permit. It presumes that a large heterogeneous group of individuals with imputed ties to a foreign adversary is inherently disloyal.
The new global conflict has also helped foster at least one modest instance of rights expansion. The State Department has for many years enforced a controversial policy of “assignment restrictions” barring employees from working on specific countries based on their personal or family ties to those countries. The policy was long criticized as discriminatory. But as U.S.-China conflict deepened in the late 2010s, questionable assignments restrictions only grew. The policy came to an end, though, in 2023—largely because advocacy groups learned to link abolition with national security needs, and because progressive diplomats saw reform as a concrete means of carrying out a more egalitarian and pro-democratic China policy at home. These events recall, at a smaller scale, earlier conflicts in which minorities gained rights where reforms were linked to wartime imperatives.
The new global conflict is also beginning to trigger familiar dynamics of interbranch competition and collaboration. As with the rights story told above, foreign conflicts can have varying effects on constitutional structure. Often, the story is one of accountability decline. Presidential power, already advantaged in the conduct of foreign affairs, may expand further at the expense of other branches. Courts may pay greater deference to the executive on grounds of institutional competence and capacity. Congress and political parties may similarly fall in line with presidential initiatives. On other occasions, however, actors have constrained government and particularly executive action, even amid foreign threat. Courts have refused to defer to executive claims of national security exigency, while Congress and opposition parties have at times stymied executive unilateralism.
The new global conflict is beginning to reprise conventional legal patterns associated with foreign conflict. First, it has led to a proliferation of China-related executive orders—a favored means by which the president can effect large policy change without the procedural encumbrances of formal laws or rules. While not all such orders have been overextensions, several have involved acts that have exceeded or abused presidential powers. For example, all three federal district court judges to have considered the Trump-era TikTok and WeChat orders have enjoined them, either on the speech grounds outlined earlier, or because the president had exceeded his powers under the International Emergency Economic Powers Act (IEEPA). While that law empowers the president to regulate economic transactions during an emergency, they reasoned, it excepts the regulation or prohibition of the import or export of “information or informational materials.” The app bans fell squarely into this exception.
The Trump administration similarly overstretched its statutory authorities in enforcing an executive order forbidding investments in the securities of companies “affiliated” with the Chinese military. The United States was and still is rightly worried about supporting China’s civil-military industrial complex, but the government’s approach to doing so here has at times been legally questionable. In 2021, a federal district court enjoined the government from placing two Chinese companies—Xiaomi and Luokung—on the securities blacklist. It found that the Defense Department’s definition of the word “affiliated” to include “shared characteristics” was improbably broad and contradicted the department’s own definitions. The court further concluded that the department’s evidence, for example, that the Xiaomi CEO had won a state-sponsored award—was hardly probative of Xiaomi’s military affiliations when the same award had been given to entrepreneurs of hot sauce, infant milk powder, and wine.
Another notable structural development is a growing interparty and interbranch consensus. Democrats and Republicans are not wholly aligned on all aspects of China policy, but they are increasingly agreed that challenges posed by China require decisive government action across an array of substantive domains. According to political scientist David Shambaugh, the new consensus “developed progressively and over time,” and largely in response to the “Xi Jinping regime’s internally repressive and externally assertive policies.” Political agreement on China has tracked changing popular perceptions of China generally. In 2022, Pew found that two-thirds of surveyed Americans described China as a “major threat”—a 23-point increase from 2013.
The new consensus has some obvious upsides. Most productively, it has helped break logjams associated with modern polarized politics. Yet consensus can also raise the political costs of dissent, encouraging groupthink and rally effects and discouraging reasoned consideration of critical perspectives. During the first hearing of the House Select Committee on the Communist Party of China, all four witnesses urged, according to columnist Max Boot, “the hardest of hard lines against Beijing.” “Utterly missing,” he continues, “were any of the numerous experts in the China-watchers community who would have warned of the risks of reckless confrontation.” The concern is not merely an impoverishment of public discourse; wartime consensus has led to notorious foreign policy blunders.
Another product of partisan agreement is interbranch consensus. On China, Congress today is more likely to augment presidential powers than to check the executive. Many recent China-related executive orders have relied on emergency authorities that Congress had initially reserved for “unusual and extraordinary threats.” Yet Congress has largely normalized the president’s invocation of such powers in response to fairly ordinary events. In a recent paper, law scholars Kristen Eichensehr and Cathy Hwang document similar concerns regarding the expanding reach of the Committee on Foreign Investment in the United States (CFIUS), an interagency committee that conducts national security reviews of inbound foreign investments. They observe a pattern—largely in response to China—in which “Congress has repeatedly provided broad authorities to the executive branch and pushed the executive to use them.” But a “Congress seemingly pushing the executive to exercise power may not scrupulously monitor that such power is used properly,” they caution.
Solving these problems is not a simple matter of resisting history. An informed approach to these issues might begin with acknowledging ways in which the current challenges are distinct. For example, the Chinese Party-state’s (non-exclusive) recruitment of its diaspora communities in its talent initiatives and foreign influence operations complicates efforts to reduce racial bias in law enforcement, heightening incentives—consciously or not—to target groups instead of individuals. Similarly, the opacity of Chinese firms’ connections to the Party-state, coupled with the Party-state’s own encompassing conception of national security, can frustrate the United States’ goal of accurately assessing the risks posed by Chinese firms.
It is hard to say where things go from here. So far, many of the acts highlighted above have met significant resistance from legal institutions and civil society. Lower courts have curbed several instances of presidential overreach, while civic and community groups have successfully spoken out in support of a variety of victims, from scientists to homebuyers. These developments lend some support to Cass Sunstein and Jack Goldsmith’s view that wartime civil liberties protections are structurally predisposed to improvements over time. If current conflict dynamics endure, it may well be that troubling policies are enacted but soon modified or reversed, in a continuous ebb and flow that never reaches the level of historic tidal waves. Even this should be of great concern, however, as such policies will still have real victims and costs. And if U.S.-China conflict ultimately turns into a hot war, whether in the Taiwan Strait or beyond, the pathologies of war will likely revisit American law with far greater force and impact.