The Judicial Equity Power, the Lawyer, and the Legalization of Politics: President Trump Issues Guidance on Demand for Security Where Courts Issue Injunctions or Restraining Orders

 

Pix credit here (Hogarth, the Bench 1758)

 

One of the great taboos of contemporary discussion revolves around the narratives of courts and their role within the political system of this (or in variation any) liberal democratic republic.  There are many excellent reasons, rooted in history, but also in the development of the normative bedrock on which the American Republic  has been erected, for both the development of this narrative and its protection. Foremost among these untouchable narrative premises (again on which our cognitive cage of all things judicial are grounded) are notions of (1) judicial neutrality (bounded by the disciplinary power of appeal, the role of precedent, rules of statutory construction bounded at some level by text, the requirement for decisions reasoning, the customs of deep embedding within jurisprudential conversations, and the threat of impeachment or removal), of (2) limited  powers (bounded by politically and constitutionally derived notions of jurisdiction), and of (3) a limited and rationalized framework from exercising a remedial authority.

That remedial authority, of course, has been evolving over the course of the last century and into this one. It has been moving from its centering in notions of post facto compensation of some sort (built into ideologies manifested in case or controversy limitations on bringing claims grounded in injury) and of the inherent limitations of the judicial power (grounded in history and tradition, and more recently around issues touching on separation of powers at the federal level) toward the sensibilities and broadening scope of remedial authority increasingly built into equitable remedies. By the end of the 20th century, the authority of courts to "do right" by infusing traditional forms of equity with new vigor and extending the scope equitable orders in time and place, courts increasingly bumped up against questions of the limits of remedial authority. And not just with respect to equity. Traditional notions of punitive damages, for example, have also been the subject of jurisprudential discussion. The development of a reinvigorated jurisprudence of official abuse of discretion (with a private sector analogue in breach of fiduciary duty), deploying at times bot the sensibilities of equity and its remedial palette continues into current times

There are many many reasons for this evolution. Some of it might be traced to the great social movements of the 20th century and the evolution of notions of equality and "right" with respect to identity issues. Some of it rooted in the relative efficiency of seeking remedy in courts rather than through the legislative or administrative authority of the political branches.  Some of it focused--and now increasingly so--on the use of the courts against the state and its apparatus itself. The courts, generally, have been welcoming, and most social organs have acquiesced--perhaps reflecting  evolving tastes for the practice of separation of powers in the US, and perhaps reflection willingness to judicialize disputes and conversations that had, in another age, been resolved within non political spheres, or which had focused energies on the political branches. The mountain of academic attention to the phenomenon, as well as (increasingly) academic sector advocacy around these (discerned) trends--and the construction of narratives of progress or threat built around them have occupied much space in those sectors in a way that might suggest that wit respect to courts, at least, political discussion has assumed a techno-bureaucratic and elite character which separates the debate "that counts" from the masses who are expected to receive the products of these debates and then exercise their (limited) franchise accordingly. That is fair, one can suppose, given the transformation of both governance and political tastes for popular involvement.  But the opposite is also fair. The absence of any sort of popular discussion about the nature and extent of jurisdiction, equity, and its remedial palette, in this respect might be lamented in a Republic that is supposed to be popular--or it might suggest that, as in the 18th century, popular meant masses guided by those whose social (and now economic and technical) positions suggest a position of authority to lead and guide.  

Nonetheless, while the focus might be on the judge, the lawyer plays a substantial role both in the evolution of judicial practice and in shaping the "fact bundles" through which this jurisprudence is developed. Lawyers have helped shaped the current culture and understanding of the judge and the judicial function. They have helped empower and enlarge the role of the courts not merely as sites for the resolution of private disputes, but also as sites for the articulation and resolution of political issues with respect to which the political branches may not be as helpful. Sometimes this requires action against the State; sometimes it requires actions in court to reconcieve law (text of common law/equity) in ways that serve social, cultural, political and other goals. In the process the scope and practice of politics has also been reshaped, and with it the role of lawyers and the understanding of what rule of law means, both with respect to "rule" and "law." (My earlier discussion Chroniclers in the Field of Cultural Production: Courts, Law and the Interpretive Process;Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of Judges). Judges make and shape; lawyers facilitate; these shape their relationship with the political apparatus of the state and in the process embeds them within it as both legal and political actors. That suggests, in turn, obligation, duty, and constraint under law.

It comes as no surprise that the objects of all of this activity in the courts, especially officials in the executive branch and its organs, and of the lawyers that fuel them, have sometimes found the divergence of what it might prefer to be political issues into courts to be either an annoyance or a threat. The current administration is no exception. Yet the intensification of these efforts, and their success, in the 21st century, inevitably would invite push back. And so, in that spirit, it is also no surprise that President Trump has issued an Executive Order on 11 March, Ensuring the Enforcement of Federal Rule of Civil Procedure 65(c), one that represents what is likely to be the first salvo in this "conversation" about the exercise of equity remedies in the courts. What has most annoyed this Administration (like its predecessors to some extent) has been the increasing effective effort to induce lowest level courts considering an issue within their jurisdiction to issue equitable permanent or provisional) with nationwide effect.  The counter thrust by the Trump administration is, as a function of their level of annoyance, fairly mild--to insist that such injunctive orders include security equal to the full costs of potential damage to the State. 

That requires application of Federal Rules of Civil Procedure 65( c) cover the full amount of potential injury to the state:

(c) SECURITY. The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security.

Of course, the Administration means to push the courts to focus on the potential costs to the State as they determine the extent to which they will issue injunctions and restraining orders under FRCP 65; and they may desire to use Mr. Trump's Memorandum as the basis for forcing situations that can be used to take refusals to require giving full and adequate security as a means of testing the limits of the proper exercise of judicial discretion under FRCP 65 (and also FRCP 65.1 on actions against security providers). The issues are not entirely hypothetical. There is caselaw, or at least discussion (however authoritative one wants to make it) in which judges have argued that it is within their discretion to require a security equal to no money.

[t]he law is clear that a federal district court has broad discretion to set a bond amount as the court sees fit and may waive a security requirement altogether as Judge Vorhees did here. Pashby v. Delia, 709 F.3d 307, 332 (4th Cir. 2013)(citation omitted); see also Aoude v. Mobil Oil Corp., 862 F.2d 890, 896 (1st Cir. 1988)("posting of a bond is not a jurisdictional prerequisite to the validity of a preliminary injunction"); Clarkson Co, v. Shaheen, 544 F.2d 624, 632 (2nd Cir. 1976)("[B]ecause, under Fed. R. Civ. P. 65, the amount of any bond to be given upon the issuance of a preliminary injunction rests within the sound discretion of the trial court, the district court may dispense with the filing of a bond." (citations omitted). (Bolier & Co., LLC v. Decca Furniture (USA), Inc., 2015 NCBC 52; cited in  Something That You Might Not Have Known About Injunctions (JD Supra).

Here the equity power of the courts meets the discretionary power of the judge in determining the equities of compliance with rules limiting the extent of equity remedial power. Whatever happens, it is clear that this is another issue that litigants will have to contend with as they choose when and whether to take their disputes with the Trump administration to the courts, the streets, the States, or Congress.  The object, of course, is to make the "real costs" of litigation more transparent and to shift that cost, or the risk of incurring that cost, more fully onto those who seek injunctive relief or restraining orders.The effect may be to reduce the willingness of litigants to seek these orders or perhaps to seek these orders with nationwide effect. For the political classes the question is whether or to what extent such actions are to be encouraged or discouraged when the object of the litigation is the state itself.

Nonetheless, the real object of this effort may not be primarily the litigants but the judicial system itself --lawyers and judges--and their jurisprudence and practice with respect to FRCP 65 injunctions and restraining orders. In his 6 March 2025 "Fact Sheet: President Donald J. Trump Ensures the Enforcement of Federal Rule of Civil Procedure 65(c)" the President made this clear in suggesting the rationale and approach that is carried forward to the 11 March 2025 Memorandum. The three rationales: (1) ensuring accountability in federal courts (2) ensuring government serves the American people; and (3) ensuring accountability clarify the nature of the objectives of which these actions forms a part. 

With respect to accountability, the "Fact Sheet" focuses on the determination of an accurate assessment of financial harm borne by the State in the context of injunctive or restraining order relief.  Here the issues of good faith and the methodologies used to calculate injury will be at issue.  The object is to increase the costs of such litigation to reduce the potential for what the State might view as frivolous claims. The larger issue, of course, is whether the State can be said to suffer financial harm in such cases. With respect to accountability, the focus turns directly  to judges, and indirectly to lawyers. "Unelected district judges have issued sweeping injunctions beyond their authority, inserting themselves into executive policymaking and stalling policies voters supported. Activist groups file meritless suits for fundraising and political gain, facing no consequences when they lose, while taxpayers bear the costs and delays." (Fact Sheet:). 

With respect to judges the claim focuses on abuse of discretion and separation of powers--but mostly abuse of discretion that creates a separation of powers issue. With respect to lawyers, the issue turns on the ethics of representation where the lawyer might or ought to know that the claim is frivolous. This, in turn, enlarges an much older debate about the ethical obligations of lawyers to represent and their duty (if any) to effectively avoid making frivolous claims. The issue, though has tended to turn on intent and a wide margin of error has been permitted (Cf., Fact Sheet: President Donald J. Trump Addresses Risks from Perkins Coie LLP). But the size of that margin of error and the extent of the due diligence obligations of lawyers before they take on a case that might be frivolous may be in the cross hairs of this policy. It is possible to the development of new rules of facilitation that is emerging in transnational law might find  a home in this new regulatory space.  Whatever the source, however, the risk of representation will likely increase, and with it the greater the likelihood of substantially enhanced due diligence requirements--without for the moment any safe harbor.

The last targets judges--and the jurisprudence of the extent of the judiciary's equity powers: "Multiple Supreme Court justices have recently warned that “single district-court judges” acting outside their judicial power are “abusing” the power entrusted to them." (Fact Sheet). Again the two issues align--aone, buse of discretion (here the allusion to incompetent judges in the (Fact Sheet); two, the constitutional limits of the judiciary's equity powers. The former, in normal curse, might hint at a much more aggressive use of the impeachment power (with pressure for the judiciary to better police its own house). These issues then touch on judicial independence and its limits in ways that have not been discussed for a very long time. The later brings back a discussion about the scope of equity power that had last been contentiously debated  during the era of judicial oversight of school integration cases (e.g., Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 30–31 (1971);  Milliken v. Bradley, 418 U.S. 717, 744 (1974); Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 434–36 (1976)) but also in play in cases involving other areas, for example elections: Race, "The Race," and the Republic: Re-conceiving Judicial Authority After Bush v. Gore). Here it is possible that new context will breath new life into old cases; or that old cases will be the springboard for some quite different jurisprudence.  The safer course would be to transpose emerging abuse of discretion jurisprudence from the administrative state to the judiciary--but such a transposition would harm the narrative of the judicial power as sui generis. And always, the lawyer in the middle.

These efforts will not go unchallenged. In addition to the expected litigation, the American Bar Association has issued several statements advancing their own view of the nature of the judicial power, the character of the law disputes about which the courts oversee, and the role of the lawyer. See, e.g., The ABA supports the rule of law (10 February 2025); and The ABA rejects efforts to undermine the courts and the legal profession (3 March 2025). The legalization of politics, and the judicialization of political disputes again advances its forms and characteristics in this new era (see further: "With the rarest of exceptions": Statement of the Association of American Law Schools on Executive Branch Compliance With Court Orders and Text of ABA Statement "The ABA Supports the Rule of Law").

The text of Ensuring the Enforcement of Federal Rule of Civil Procedure 65(c), Fact Sheet: President Donald J. Trump Ensures the Enforcement of Federal Rule of Civil Procedure 65(c)",  and Fact Sheet: President Donald J. Trump Addresses Risks from Perkins Coie LLP; The ABA supports the rule of law (10 February 2025); and The ABA rejects efforts to undermine the courts and the legal profession (3 March 2025) follow below.

Macquarie University's Business & Human Rights Access to Justice Lab Webinar: "The future of business and human rights under the Trump Administration"

 

Delighted to pass along information about this Webinar event very much worth attending. The magnificent Joanne Bauer, Marti Flacks, and Surya Deva always have quite important perspectives and much insight to impact. The event is scheduled for Wed, 12 Mar, 5pm - 6pm CDT.

This from the organizers:

 Do you want to know how the Trump administration is impacting (and/or might impact) the BHR landscape within the US and beyond?

📢 Look no further: join a webinar organized by B&HR Access to Justice Lab on 13 March 2025, 9-10am AEDT (it should be 12 March 2025, 6-7pm EDT). I will be moderating the discussion with two leading BHR experts - Joanne Bauerand Marti Flacks - with lot of insights on this theme.

Register here to receive a Zoom link: https://lnkd.in/e6UuZAaQ

The Event Description follows:

POSTSCRIPT: The video recording of the event may be accessed HERE as part of the B&HR Access to Justice Lab YouTube channel.

 

CfP ESIL Interest Group on International Business and Human Rights--Theme: “Reconstructing International Law: Structural Shifts Under the UN Binding Treaty on Business and Human Rights”

 

 

Delighted to pass along the Call for Papers of the ESIL Interest Group on International Business and Human Rights Workshop to be held in conjunction with the ESIL Annual Meeting in Berlin (10-13 September 2025). 

The 2025 theme is “Reconstructing International Law: Structural Shifts Under the UN Binding Treaty on Business and Human Rights.”  While it is an old theme, going back more than a decade, it is also a theme that requires a fresh examination in the quite dynamic international context of 2025. This from the CfP Workshop Overview:

Aligned with the theme of the ESIL Conference, ‘Reconstructing International Law’, this workshop examines the potential of the UN Treaty on Transnational Corporations and Other Business Enterprises with Respect to Human Rights to reshape the relationship between international business and human rights. The treaty seeks to go beyond the voluntary framework of the 2011 UN Guiding Principles on Business and Human Rights by introducing binding corporate accountability mechanisms. This entails changes to the architecture of International Business and Human Rights Law (IBHRL), with potential spillover effects on other branches of international law.

Discussions will explore how this instrument can address existing gaps in international law, considering both the impact of transnational corporations on fundamental rights and the opposition of some states and corporations, which argue that the treaty could negatively affect investments and competition.

The workshop will bring together inter-, pluri – , and transdisciplinary perspectives to examine how the treaty may contribute to the reconstruction of the international legal landscape, the strengthening of corporate legal responsibility, and the protection of vulnerable communities. Among other aspects, it will assess the treaty’s implications for international business law, 1enforcement mechanisms, and the balance between international regulations and global economic interests.

While the focus of the workshop is on the prospective UN Business and Human Rights Treaty, we also welcome contributions, which seek to explore the impacts and implications of introducing mandatory and legally binding rules in this context with reference to other developments taking place in a comparative and global perspective.

The CfP follows below with submission information. 

ABA Section of Environment, Energy, and Resources (SEER) for the “ESG & Sustainability Roundtable SEERies: "ESG & Sustainability Roundtable SEERies: Implementing ABA Resolution 513 on Sustainable Development"

 

Happy to pass this announcement along.  Looks really interesting:

Join the ABA Section of Environment, Energy, and Resources (SEER) this Wednesday, March 12, at 11:00 AM ET for the next session of the ESG & Sustainability Roundtable SEERies! Led by @Jonathan Nwagbaraocha and @John Dernbach, this session will focus on Resolution 513, which was overwhelmingly approved by the ABA House of Delegates on August 4, 2024. The resolution reaffirms the ABA’s longstanding support for sustainable development and emphasizes the importance of incorporating sustainability into the practice of law. What does this resolution mean for practitioners, and how is it being implemented? How can and should the ABA support lawyers to incorporate sustainable development into their practice and pro bono activities? How can YOU get involved with this initiative? We will discuss these questions and more during this roundtable.

Register here

More information follows below.

Historical Materialism--邓野 “没有共产党就没有中国”口号的提出 [Deng Ye; on the Origins of the Slogan "Without the Communist Party, there is no China"] Discussed in 虞和平, 2008年中国近代史研究综述 [Yu Heping, A Review of the Research on Modern Chinese History in 2008]

 

The historiography of modern China remains both contested and of great interest. I recently ran across a quite fascinating slice of the debate within official circles in China from 2008, during the time of the leadership of Hu Jintao. General Secretary of the Communist Party of China. The essay, posted ot the CASS website, is entitled 2008年中国近代史研究综述 [A Review of the Research on Modern Chinese History in 2008] authored by Yu Heping [虞和平]. Its historiography Theory [史学理论] is worth considering:

如何对待马克思主义唯物史观,是近几年来史学理论研究中的核心问题。2007年10月9日在复旦大学召开的“唯物史观与历史评价”研讨会上,一些学者就如何以唯物史观评价历史,并使之符合历史本身的逻辑,提出了思考。丰子义认为,从大的方面来看,历史评价的尺度有历史尺度与价值尺度两种。前者,主要着眼于社会历史发展的客观规律,以能否有利于社会生产力的发展和社会文明水平的提高作为评价标尺,属于客体尺度;后者,主要着眼于历史发展对人的存在和发展的意义,以一定的道德准则和主体性原则作为评价标尺,亦即道德尺度,属于主体尺度。这两种尺度,就历史发展长过程和总的趋势而言,是一致的;就历史发展的特定阶段和特定问题来说,又可能存在某种不一致,甚或相反;在两者发生冲突时,历史评价是首要的,价值评价则是第二位的。陈学明认为,唯物史观在认识、看待历史时,充分注意到两个环节:事实的历史性与事实的整体性。以此观察历史,可以帮助我们思考人类是否还需要理想的问题,即人类是否需要从历史事实的整体出发,为自己的行动设立一种奋斗目标。唯物史观在面向历史的时候,把过去所有历史事件和历史总体联系在一起,把当前塑造的一切和历史总体联系在一起,这充分彰显理想和目标的现实意义。2007年10月29日在厦门大学召开的第14届全国史学理论研讨会上,吴英对唯物史观的基本概念作了新的解读,认为生产力和劳动分工的演化牵动生产关系整体发生变革,而社会经济结构与上层建筑的矛盾运动决定着这种变革实现的迟速,由此推动人类社会由低级向高一级的演进。[How to treat Marxist historical materialism is the core issue in the research on historical theory in recent years. At the "Historical Materialism and Historical Evaluation" seminar held at Fudan University on October 9, 2007, some scholars proposed thoughts on how to evaluate history with historical materialism and make it conform to the logic of history itself. Feng Ziyi believes that from a broad perspective, there are two scales for historical evaluation: historical scale and value scale. The former focuses on the objective laws of social and historical development, and uses whether it is conducive to the development of social productivity and the improvement of social civilization as the evaluation standard, which belongs to the objective scale; the latter focuses on the significance of historical development to human existence and development, and uses certain moral standards and subjectivity principles as the evaluation standard, that is, the moral scale, which belongs to the subjective scale. These two scales are consistent in terms of the long process and general trend of historical development; in terms of specific stages and specific issues of historical development, there may be some inconsistency or even opposite; when the two conflict, historical evaluation is primary and value evaluation is secondary. Chen Xueming believes that when the materialist conception of history understands and views history, it fully pays attention to two links: the historicity of facts and the integrity of facts. Observing history in this way can help us think about whether mankind still needs ideals, that is, whether mankind needs to set a goal for their actions based on the overall historical facts. When facing history, the materialist conception of history links all past historical events with the overall history, and links everything currently shaped with the overall history, which fully demonstrates the practical significance of ideals and goals. At the 14th National Symposium on Historical Theory held at Xiamen University on October 29, 2007, Wu Ying gave a new interpretation of the basic concepts of historical materialism, arguing that the evolution of productivity and division of labor has led to changes in the overall production relations, and the contradictory movement between the social and economic structure and the superstructure determines the speed of this change, thereby promoting the evolution of human society from a low level to a high level.]

From this, one might understand that from a conceptual perspective among leading scholars in China, the problem of history, then, is actually the realization of a dialectics of interpretation. That is, that history is itself  the rationalization of facts  which must, to be authoritative, align precisely with the logic of history. And the logic of history is in essence, the manifestation of the political economic model in time. As such, history must itself represent a field of dialectics between the development of Marxist Leninist theory and its elaboration in the Basic Line, and the rationalization of temporal narratives that chronicle this journey and that correctly point the way forward. Yet that may also be understood as a fundamental problem of fixity and thus an expression of anti-historical nihilist aproaches. See discussion In Search of Fixity--Historical Nihilism and the Dictatorship of Relativism in 王瑾 "1949～1989年《人民日报》对历史虚无主义的解析 " [Wang Jin, Analysis of Historical Nihilism in the People's Daily from 1949 to 1989]: Text and brief analysis.

Certainly this Marxist-Leninist historiography does not align with perspectives elsewhere. But it is essential for engaging with the organization of self-awareness in time within this political-economic model.

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One article discussed caught my eye:  邓野 “没有共产党就没有中国”口号的提出 [Deng Ye; on the Origins of the Slogan "Without the Communist Party, there is no China"], one which may be emblematic of the challenge of history and its representation within ideology, broadly understood as the cognitive cage within which it is possible to order the world in a way that makes sense given the core premises on which this rationalization emerges. It considers a fairly sensitive issue during a  delicate period in the multi-front war  that preceded the last phase of the civil war that brought the Communist Party of China to power. It marks an quite interesting historical moment the meaning and placement of which within narrative proves to be an essential element of this historical dialectic within its materialism. The history is even more delicate as it centers on the proper interpretation of the events that eventually saw the publication of Chiang Kai-shek's "China's Destiny." This is what  2008年中国近代史研究综述 had to say about the essay:

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 对于蒋介石在1943年出版的《中国之命运》一书,邓野另文指出,从政治背景来看,蒋在此时出版此书,是利用国民党从形式上完成中国废除半殖民地地位的政治宣传。其核心在于,将一个本来是中国与英美之间的民族平等问题,转换为国共之间的政治选择问题。围绕“中国之命运”这道命题,中国产生了两个排斥性的选择,即“没有国民党就没有中国”和“没有共产党就没有中国”。但这种排斥性的选择提出于国共合作的框架之内,意味着国共在继续保持抗日民族统一战线的同时,又进一步澄清了彼此的阶级关系。从这个意义上讲,所谓“中国之命运”,实际上就是国共合作之命运。此书的出版及其政治后果集中表现为这样一个问题:它以著书立说的方式,为国共合作的政治前途,完成了理论意义上的埋葬。[Regarding the book "China's Destiny" published by Chiang Kai-shek in 1943, Deng Ye pointed out in another article that from the perspective of political background, Chiang published this book at this time to use the Kuomintang to formally complete the political propaganda of China's abolition of its semi-colonial status. The core of this is to transform a national equality issue between China and Britain and the United States into a political choice issue between the Kuomintang and the Communist Party. Around the proposition of "China's Destiny", China has two exclusive choices, namely "there is no China without the Kuomintang" and "there is no China without the Communist Party". However, this exclusive choice was put forward within the framework of the cooperation between the Kuomintang and the Communist Party, which means that while the Kuomintang and the Communist Party continue to maintain the anti-Japanese national united front, they have further clarified their class relations. In this sense, the so-called "China's Destiny" is actually the destiny of the cooperation between the Kuomintang and the Communist Party. The publication of this book and its political consequences are concentrated in such a problem: it has completed the theoretical burial of the political future of the cooperation between the Kuomintang and the Communist Party in the form of writing a book.]

The complications of the historical embedding of both the context in which the book was written and the facts to which it relates,becomes even more interesting when considered against the assessment of  George Atcheson, Jr., the U.S. Chargé in 1943. The complete essays follows below in the original Chinese and in a crude English translation along with the text of Mr. Atcheson's report on the work to the U.S. Department of State. 

 

Dialectical Reflections--Shift: "The European Commission’s ‘Omnibus Simplification Proposal’: Shift’s Preliminary Reflections"

 

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 By now virtually everyone with an interest in a number of related fields--business and human rights, supply chains, surveillance, systems theory and regulatory governance, national security, data and tech, and macro-economic policy within national and international domains--has heard of and probably tried to digest the European Commission's innocuous sounding "Omnibus Simplification Proposal." (for official explanations and justifications, built around a "competitiveness compass" produced to facilitate those ends, see, Commission proposes to cut red tape and simplify business environment; Questions and answers on simplification omnibus I and II; Simplifying EU rules and boosting competitiveness – Omnibus I; InvestEU - European Union – Omnibus II; Clean Industrial Deal; Press release: Commission simplifies rules on sustainability and EU investments, delivering over €6 billion in administrative relief). Omnibus I was released (after the usual leakage common to hot-house self-reflective techno-bureaucratic cultures and serving as an instrument of its internal politics) on 25 February 2025 and had in its cross hairs the essence of the global business and human rights regulatory project hubbed in Europe: the Corporate Sustainability Reporting Directive (“CSRD”), the Taxonomy Regulation,  the Corporate Sustainability Due Diligence Directive (“CSDDD”), and the Carbon Border Adjustment Mechanism (“CBAM”) (text may be accessed here).

On its face, an effort to simplify (and sold that way for as long as possible), the project has always been about reformulating the years long regulatory projects that had been enacted over the last decade or so. Yet, perhaps, the easiest way to understand the path from regulatory cages developing over the last quarter century (including its increasingly orthodox academic theorization to enhance both authority and legitimacy within Europe) to retrenchment is fear. What sort of fear? The fear expressed by EU Commission President von der Leyen in her speech at Davo (considered here) that flowed from the (official) warning in the Draghi Report, “The Future of European Competitiveness," a 400 or so page document detailing what might be understood as a notice of a potential hard turn in the regulatory project of Europe, and thus in the template for the construction of the structures of a policy driven regulatory governance of economic activity more broadly). It was a fear that was the grandchild of the fear of  Europe in 1945, stuck between largely intact powers with an appetite for consuming lesser states within new structures of dependence and inter-connection. It was a fear, as well, of the long term relevance of Europe as a near apex power within whatever was emerging as the post-global global order. And it was a fear that in an environment in which Europe would be shrinking the resulting political. social, ethnic and religious instabilities  would increase in prominence in ways that could spiral out of control in the absence of foreign intervention of some sort of other.

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The result, when the actual nature of the effort was unmasked, was to be expected--especially by those groups and actors who would rightly feel betrayed both by the discourse of simplification and especially by the project itself (detailed here in a useful timeline).  These were projects a long time in coming. They were meant to cement the leadership role of adherents to a certain orthodoxy of view about markets, human rights, economic policy, the role of the state sector, and the modalities of surveillance and control in an environment in which markets and private actions were to increasingly express the objectives and aspirations of public policy in its apex ideological forms--human rights, sustainability and through them (appropriate) development. And they were meant to do this without challenging the pricing model of economic activity under which business activity was otherwise regulated. In a sense, these regulatory structures were built alongside that of  the classical model grounded in the ideologies of finance and value the essence of which was that everything can be priced and that the state facilitated the assignment of cost and risk (premises anathema in many respects to those who, following the international model, grounded regulatory approaches on the fundamental idea that human rights, including sustainability, are universal, indivisible and interdependent and thus could neither be priced nor negotiated away). In the end, and in its most extreme manifestation of the thrust of the emerging orthodoxy, markets were to be subsumed within and serve as part of a seamless techno-bureaucracy overseeing all aspects of human relations within the framework of a proactive liberal democratic apparatus in which guided masses could be enlightened into exercising voting authority in the appropriate ways. That was the project that was worth saving, and one that was at the core of the threat posed by what otherwise might be understood as either innocuous bureaucratic and regulatory simplification, covering what civil society feared was a deregulation effort undoing the regulatory advances that were the object of Omnibus (eg here).

It is with this in mind that one might read the extremely useful analysis of The European Commission’s ‘Omnibus Simplification Proposal’: Shift’s Preliminary Reflections, prepared by Shift--an organization that John Ruggie helped create and that has remained an influential voice in the evolution and adaptation of the UN Guiding Principles for Business and Human Rights in an altering environment (certainly an environment which is in some respects has been radically altered from that taken for granted during the rime of the development of the UNGP). The analysis follows below and may be accessed online. A few brief analytical points worth considering perhaps.   

Pix Credit Tomb of Sancho Sánchez Carillo (Burgos, 1295) Catalan Museum

1. Timelines matter. Radical change  generally is undertaken gradually. That had been the approach advocated by John Ruggie and embedded in the UNGP)--principled pragmatism. But impatience can be a potent political force. Radical change, then, also might be undertaken swiftly. Yet that requires a sufficient enough control of the power apparatus to enforce radical change; and the ruthlessness to let nothing stand in the way of change. The European seeking accelerated change chose a middle ground--moderate speed and the suffocation of regulatory compliance that might have been complex enough to effectively shift discretionary authority either from the private to the public sector, or to transfer it to interlocking compliance bureaucracies in public and private entities to which overall decision making authority would be vested. One speaks, of course, of political risk in framing regulatory objectives.  It was a pity, ironically of course, that those responsible for the cluster of measures now in the cross hairs of simplification that no one bothered to undertake the sort of risk-based due diligence with respect to regulatory reform strategies the implementation of which is the critical at-risk element of the simplified regulations. Perhaps they did; in that case the suggestion that risk based assessments are neither perfoect nor can they avoid catastrophe is made clearer.   

2. Complexity as a political instrument. It might follow, then, that regulatory complexity is not a "thing" in itself but rather a means to an ends. One might, then, wish to consider the value of complexity--layered regulations that might or might not align, traps for the unwary, shift of operationalization from regulatory text to officials and decision making bodies, assessment and sanctions schemes that  mask shifts in authority and risk allocation, and the like.  In this sense the debate about complexity may actually be a debate about something quite different--a debate about the face of power and the means of its assertion in the service of higher objectives. In addition, time as a function of measurement also represents a political choice when reduced to regulation. This mirrors the challenge in the field of corporate governance through the nudging of financial reporting rules. Focusing on immediate effect and immediate right in relation to a narrowly defined event will produce quite distinct consequential risk avoidance behaviors, and value assessment, than one in which the focus is on middle to long term risk effects across a broader scope against which effects are measured. 

3. Risk is not a single layered concept. The object of the regulatory projects now subject to simplification was, as Shift correctly notes, was straightforward and in its own way quite simple--to manage risk-based due diligence. That is true enough. Nonetheless thee are a number of risk distinctions that merit some consideration. One touches on the assignment of risk bearing and risk controlling functions. To some extent, the business and human rights project sought an alignment between risk bearing and risk controlling, placing both within an entity engaged in economic activity. The alignment, of course, could not be perfect, but it might be workable in markers. The alignment becomes mroe complex where the state tales to itself a measure of risk control functions.  And that risk control function becomes more difficult still where what is controlled is both the nature of risk controlling decisions and the quantum of tolerable risk that may be taken. From an international human rights environment, especially one in which one starts from the premise that the risk negative human rights impacts must be prevented in the ideal state, the trajectories are toward risk avoidance cultures. That produces a conflict with risk taking cultures sometimes necessary for (1) innovation and (2) development. To sort that out a more nuanced se o distinctions between tolerable and less tolerable risks is required, but more importantly, the acceptance of the idea that one sort of negative human rights impact (short term, specifically contextual, etc.) might be balanced against positive human rights impacts (the argument of some in the "development first" camp). The idea here isn't to argue among these but rather to suggest that "risk-based" measures cover a substantial amount of ground. Indeed that is the essence of the dialectic between the Draghi Report, on the one hand, and the vision of human rights and sustainability organization, on the other. They necessarily talk past each other because they have not yet been able to align their language, objectives, goals, and the way in which "things," events, actions, consequences, are identified (much less measured). But this disjunction is as old as the Norms project on the ashes of which John Ruggie sought to find a bridge.

4. Outcomes are also not a single layered concept.  The idea here mimics that of risk. It is true enough that if the sole or paramount objective was risk based due diligence measured against reductions in negative impacts (in whatever form agreement about the meaning of all of these terms is achieved, and further assuming agreement on the allocation of authority to define and to apply those meanings), then the idea of simplification ought to be equally straightforward. The difficulty here is the lack of alignment between the objectives against which measurement is possible.  The case of the oppositional nature (sometimes) between a more absolutist human rights impacts objectives measured in the short or long term) and a more development oriented approaches are clear. Yet simplification in this case also suggests that the binary--positive/negative human rights impacts--is itself deeply complicated by the environment in which it is meant to have an effect. 

5. At the end of any simplification process lies complexity. That is not because simplification is impossible; the challenge is that even simplification, in context, is complex and produces complexity. That is the case even when one starts from the proposition that simplification requires or is a process of shedding. Shedding might be understood as an exercise in essentialization and reduction. That produces either less detail, or a narrowing of scope. With less detail there is a shift from rules based to discretionary decision making (as well as interpretation). In either case, shedding also requires a delegation of authority to create and interpret between the elements retained. And delegation itself produces what appears be be order at the level of simplification and a devolution of complexity down (or aside) to those spaces in which what has been shed now appears. The complexity of simplicity is as much an issue in the evolution of virtual governance tools as it is in the organization of human to human regulatory structures (eg Hermann Kopetz, Simplicity is Complex (2019)).

6. What next? Shift, like many organizations committed to an architecture of business sustainability/ human rights focus on saving what they can, pushing back, arguing from logic, history or values--the values and narratives of which would appeal more to them than to their opponents. In that respect Shift offers an excellent set of ideas. Perhaps there is a little room for bargaining; that will depend less on the power of their logic than on the reality and risk of the circumstances in which Europe now finds itself.  Events have overtaken, to some extent, that long and steady human rights project which needed as a base, a stable global system. It also requires a willingness to confront the larger issues within which this regulatory framework is bit a part--the question of the forms, ideologies, purposes, and manifestations of regulation (and with it the relationship between a regulatory state and autonomous individuals whose autonomy is exercised in economic, social, cultural, religious, and political market places (platforms today). I can only hoe there is a space within which both important social objectives might be aligned within a European normative space. 

 

Volume 34, Issue 152, March 2025 issue of The Journal of Contemporary China (JCC) is now published

Suisheng Zhao (赵穗生), Professor and Editor, Journal of Contemporary China (JCC) has announced the publication of Volume 34, Issue 152, March 2025 issue of The Journal of Contemporary China (JCC) is now published available online. For your convenience, below is the Table of Contents of the March 2025 issue of The Journal of Contemporary China.

The Suspension of Tariffs Against Mexico-- A Mexican Perspective ("México fue tratado con mucho respeto y llegamos a este acuerdo” [“Mexico was treated with great respect and we reached this agreement”]")

 

 

It was announced that after a meeting between the presidents of the United States and Mexico, the United States side suspended imposition of tariffs for a month. The U.S. side of this communication and its consequences were well described in the (English speaking) press.  As interesting, perhaps, was the characterization of the event from the Mexican side. To that end, the press release issued by the Office of the President of Mexico might be a good starting point.  

The Press Relse follows below:  “México fue tratado con mucho respeto y llegamos a este acuerdo”: Presidenta; no se pagarán aranceles en productos dentro del T-MEC; “Llegamos a este acuerdo que realmente beneficia a ambas naciones, seguir colaborando, cooperando en distintos temas y al mismo tiempo en el marco del respeto”, destacó [“Mexico was treated with great respect and we reached this agreement”: President; no tariffs will be paid on products within the T-MEC “We reached this agreement that really benefits both nations, continuing to collaborate, cooperate on different issues and at the same time within the framework of respect,” she stressed].

It goes without saying that the contrast between this and the meeting with the President of Ukraine is quite telling in virtually every respect, bus suggests the parameters of the new protocols and expectations  when dealing with U.S. leadership.  This is something the press is both picking up and distributing in their role as agent of capacity building among other foreign officials (eg,  How Mexico’s Leader Is Rewriting the Rules for Handling Trump: President Claudia Sheinbaum impressed Trump by sticking to her guns without antagonizing him). What President Sheinbaum adds is the internal narrative necessary to translate the protocols and performance roles for US relations with the national expectations of the local elites and electorate. In that context the festival idea might well be a master stroke, at least within the parameters of Mexican politics:

Mexican President Claudia Sheinbaum is planning a festival on Sunday in the capital’s historic main square facing the National Palace, after President Trump suspended tariffs on Mexican exports until April 2. Sheinbaum had initially called Mexicans to a mass rally at the Zócalo, the capital city’s main square, as an act of unity to announce retaliatory measures had Trump followed through with his tariff threat. But now, there was no need, she said on Thursday. Sheinbaum said Sunday’s mass gathering would go on, but with a radically different tone: it would now be a party to celebrate the suspension of the tariffs. “We will have a festival and invite musical groups,” she said. (Mexico’s Sheinbaum to Hold ‘Festival’ Sunday as Trump Pauses Tariffs).

Pix credit Wall Street Jourrnal Print edition 7 March 2025, p. A1

 

The Phenomenology of America First and its New World Ordering of Merchants in this New Era of Global Historical Development: President Trump's Address to Congress--Text and Brief Reflections

 

Pix Credit White House Web Page

 Mr. Trump delivered an address to Congress on 4 March 2025.  The White House sounded positive about the address.  See President Trump’s Historic Address Captivates America (Articles March 5, 2025); What They Are Saying: President Trump’s Masterclass Before Congress  (Articles March 5, 2025); Democrats Showed Whose Side They’re On — And it’s Not the American People (Briefings & Statements March 5, 2025). And so on.

Pix credit New York Times

The text of the address to Congress follows below along with a very brief set of reflections.  The text is drawn from a transcript published by the New York Times and available HERE. The New York Times trumpeted the speech, or at least its essence in the following way: "In a speech to Congress in his first weeks in office, the president laid out his vision to remake U.S. policy on the military, trade, immigration and foreign aid." (Ibid.). One would have to agree that there were many facts and accomplishments described, which together might suggest a vision; and there were many sentiments expressed, which might provide a framework for the ideology of that vision. That is all quite welcome; it is just not as clear that the vision and its experience is quite fully developed yet. What is clear, though, is that this President, unlike many of his predecessors of the last century is more a creature of phenomenological envisioning, than a conceptual one. That is, that whatever will pass for the vision-ideology of this administration, its phenomenology will be far more important, and telling, than any sort of conceptual or ideological textual  summarizing. To be clear, the reference to the phenomenological points to the style of this administration to develop its self-conception from an iterative and dynamic flow of actions that are both iterative and which expand to reach the outer boundaries of the "vision space" intended; in this case by reoriented the political lebenswelt of the Republic, one which might require an epoché or suspension of judgment. Only what is what is directly given in experience serves as the basis for deriving the essence of that thing President Trump and his supporters share (or impose) within a community seeking common meaning. 

To understand Mr. Trump and America First, one must avoid listening to words and pay close attention to actions. This is in effect a strongly phenomenological presidency of the 21st century in which ideology is action, and action is distilled in text.    

1. Historical processes are perhaps driven by and as economics but they are driven by and appear in the form of cultural infinitive to the conceptualization of leadership.  In human history there appears to be a movement between priests, warriors, bureaucrats, merchants, peasants and undesirable in the constitution of the class of social sub-collectives that a culture designates as the source and form of its leadership. Modernity might have been understood as the passing of the mantle of collective leadership from priest to warrior. That passed, in turn from warrior to  bureaucrats (from noblesse d'epée to noblesse de robe), and then, from bureaucrats to merchants and peasants. That appears to be the age in which one continues to operate. In the United States, merchant elites rather than peasant elites appear to have reclaimed the authority to populate the ruling apparatus. They have taken it form the bureaucrats. To understand that is to understand both the phenomenology of the actio0ns that merchant leaders take, and the signification of the world around them,. It also suggests the ways in which conflict and stability can be imagined between merchant, warrior, bureaucrat, priestly, and peasant leadership collectives. To understand the new ordering and its revolutionary potential in the United States under President Trump, one must understand first the conceptual cages of merchant leadership--their lebenswelt--as well as the way in which they process conceptualization, their phenomenology of leadership. Both were well illustrated in the speech, 

2. God is mentioned five times in the address.  The first is with reference to a "National Wildlife Refuge, a pristine, peaceful 34,000-acre sanctuary for all of God’s creatures on the edge of the Gulf of America.". The second is in reference to the baseline referent for biological construction of humans: "And our message to every child in America is that you are perfect exactly the way God made you." The third was with respect to the manifestation of a Divine will for a Divine purpose: "I believe that my life was saved that day in Butler for a very good reason. I was saved by God to Make America Great Again." The fourth was as a traditional invocation of Divine assistance in an earthly task which is itself a human effort to understand and implement the Divine will: "This will be our greatest era; with God’s help over the next four years, we are going to lead this nation even higher, and we are going to forge the freest, most advanced, most dynamic and most dominant civilization ever to exist on the face of this Earth." And the last was to extend the blessings of the Divine to the audience and the Nation: "Thank you, God bless you, and God bless America." No invocation of Biblical wisdom, just the alignment of God, the natural order, and the Divine--this is a phenomenological God, known by Divine action rather than the (Greek) malaise of philosophizing one's way to enlightenment). It is in things and action, rather in concepts and presumptions, that concepts and presumptions are manifested, understood, and most importantly where conception and action become one.  One appears to have returned to the alignment of the natural and the divine, each a reflection of the other, or perhaps better put, the perception of the natural is the means by one can discern the eternal and unchanging cognitive orderings of the divine; or perhaps, the face of God is manifested in the objects and relations among the Divine creation. And so on.  Anything beyond that might be best left to religious institutionalists  and their justifications.

3. Like many of his predecessors, this speech was marked by the "I."  The United States, like many many other places, has a long way on a pathway of the personal and the therapeutic.  Nothing makes sense unless it relates to the person who is attempting to make sense of things; and things make sense only as a function of the person seeking to rationalize thew world around them.  It is from this kernel of insight that the rest follows. This is neither critique nor particularly a habit of Mt. Trump--Mr. Trump in this sense is merely an outsized expression of a cultural affection which is deeply embedded not just in politics but in business.  Perhaps a distortion of the heroic vision, which them amalgamated with the self actualization mania of the last century. When then tied to hierarchies and notions of merit and authority, it can produce a toxic mixture in which  everything is personalized, and the personal is judged in relation to others. But that is a general problem , though one also on display here. Perhaps there is no help for this among the current generation; and while it may be tolerable among merchants, its transposition to the operations of a democratic republic may require some refinement.  Certainly merchants have long thought in the "I"--but not just merchants.   That I manifests, even as the "we" is sometimes substituted (consciously and deliberately) in textual tropes within the speech.

4.  One might, then,  be excused for wondering, then, whether the  fundamental operating assumptions of the "coding" for representative democracy within a federal system are aligned with any plausible version of its theory. If elective office is a prize attained by individuals for their greater glory (or at least the greater glory of what they think best), then every election that produces a winner also produces a mandate to go along with it--a mandate for the winner to exercise imperium at least during the length of their term in office. Imperium is personal and subject only to withdrawal of that mandate in a subsequent election. That appears to mark the thinking of enough "thought leaders" (whether their leadership derives from economic, social, cultural, religious, or other collective source) to merit some consideration.  As President Trump declared (but in a manner that mimics similar declaration from other leaders  over the long history of the Republic): "The presidential election of Nov. 5 was a mandate like has not been seen in many decades. We won all seven swing states, giving us an Electoral College victory of 312 votes. We won the popular vote by big numbers and won counties in our country." (President Trump Address to Congress). That gets to the essence of the notion of election.

It is, in the end, perhaps as good a way of understanding the nature of republican liberal democracy as any other, at least if it is aligned with the popular tastes for the way in which the masses are content to have themselves governed. And it aligns, in some fashion, with the fundamental notion of delegation--to persons (and now perhaps to process under evolving conceptions  of "rule of law")--grounded on the "personality" of that delegation, to elected officials who act to further their own personal relationship with office, to techno-bureaucrats who do the same within the scope of their mandates, etc. . The issues and approaches are quite similar to a sort f coded debate along the same lines within Marxist-Leninist circles.  And it is that convergence, quite apparent since 2013, which ought to be worthy of even greater consideration. For it might seem to some that while global economic convergence has been fracturing unmistakably since 2008 or so, the forms of governance appears to be more amenable to global convergence, even across political-economic models that on their face appear  incompatible. 

5. Also notable was the descent of political speech making into a sort of routinized bricolage that is the essence of the phenomenological turn in political visioning.  Certainly, it is likely that large language models can now, after digesting the speeches of leaders in liberal democratic states, effectively write (in a descriptive and predictive way) any political speech at any point in time as long as the model has been able to digest the latest facts and assess them on the basis of the ordering resumptions ("make America great", "protect democracy," return to a golden age" in this era, and their analogs during the leadership of people from opposing parties.  It doesn't really matter for the model. What matters id the trope--from "facts"s to vision, structured on what would be the liberal democratic form of the contemporary "basic line" which itself is a set of markers that define the form of policy objectives to meet the challenge of the current general social contradiction facing the nation.  President Trump's speech provides an excellent example of the type. And that, as a function of an expectation of listeners (who matter) provides  the essential modalities f the dialectics between speaker and audience which enhances their relationship--but which is an essential ingredient for the development of the position of the opposition (also using the same tropes but to different ends and with a variation on the "basic line", the policy articulations that collectively point to the underlying vision).

6. The essence of the current vision, in the style of a "silver age", appears focused on a return to a prior state rather than on the attainment of a more developed state.  The path forward, like all silver age civilizations, lies in the past. One REcreates; one REbuilds; one REturns; one COMES BACK.

I return to this chamber tonight to report that America’s momentum is back. Our spirit is back. Our pride is back. Our confidence is back. And the American dream is surging — bigger and better than ever before. The American dream is unstoppable, and our country is on the verge of a comeback the likes of which the world has never witnessed, and perhaps will never witness again. Never been anything like it. (President Trump Address to Congress)

Pix credit here

None of this is either good or bad on its own.  It is.  But what exactly is it? In one sense, the notion of REturn is as old as the American revolution, where part of the object was to REturn to a state of government rejecting newfangled experiments in Parliamentary supremacy being trotted out in the U.K. metropolis. Part of it is an expression of even more ancient notions of the protection of the customs and traditions of polity that might go back certainly to Aristotle (with respect to laws and governance). Another part, of course involves the tropes of returning to a golden era state as a means of interpretation of while it looks back discursively actually propels the society forward. There is something to be said of the tactic for leaders of fundamentally conservative social orders when they mean to transform them or their fundamental understanding of who they are and what is expected of them. It embraces the insight that for some the only way to walk forward is by looking backwards. A collective sometime ave to have the comfort of believing it is going back to a comfortable (at least in its ideal form) past while being managed forward, That, in part, requires the invocation of older imagery and discourses the meaning and fulfillment of which has been filled with what may be something new.

7. There is a bit if internal mimesis that reminds us that what appears new, in the style of this Presidency, is  to some degree (I leave the measurement of that degree to others) an imitation of the apocalytic and "othering" style of its predecessor.  President Biden spent much of his discursive moments, through the end of his leadership, developing the notion of threat to the essential nature of the Republic by Mr. Trump and his supporters. That was meant to pay political dividends, one can suppose, but also was thought to resonate with a divided electorate. Now that sensibility (if not that sense) is replicated, but in the ridiculing style of the current leader.

Pix credit here

This is my fifth such speech to Congress, and, once again, I look at the Democrats in front of me and I realize there is absolutely nothing I can say to make them happy or to make them stand or smile or applaud. Nothing I can do. I could find a cure to the most devastating disease, a disease that would wipe out entire nations or announce the answers to greatest economy in history or the stoppage of crime to the lowest levels ever recorded, and these people sitting right here will not clap, will not stand, and certainly will not cheer for these astronomical achievements. They won’t do it no matter what. Five, five times I’ve been up here. It’s very sad. And it just shouldn’t be this way. So, Democrats sitting before me, for just this one night, why not join us in celebrating so many incredible wins for America? For the good of our nation, let’s work together and let’s truly make America great again. (President Trump Address to Congress)

What may be amazing is not that this has become a sort of "go to style" in the nature of political speech across divides (real or manufactured), but that those who use the tool appear to be amazed and surprised when their opponents use it--though that, too, might be the other critical element of this dialectical discourse. It does, though, seem to amuse the electorate, or at least those who signal to the electorate how they ought to respond to this show. . 

8. And what is the essence of the vision, the phenomenology of which occupied much of the space of the speech? It was to clean up. The lyrics of Betty Wright's famous "Clean Up Woman" comes to mind:

A clean up woman is a woman who
Gets all the love we girls leave behind
The reason I know so much about her
Is because she picked up a man of mine
Jumpin' slick was my ruin
'Cause I found out all I was doin'
Was makin' it easy for the clean up woman
To get my man's love, oh yeah
Just makin' it easy for the clean up woman
To get my baby's love, uh-huh, mm-hm

President Trump is, discursively, the "Clean Up Woman" who gets all of the Republic's love by giving it what it wants--that is the discourse of action on offer. Mr. Trump suggests, in effect, that Mr. Biden made it easy to get the love he was fussing about with. 

Upon taking office, I imposed an immediate freeze on all federal hiring, a freeze on all new federal regulations and a freeze on all foreign aid. I terminated the ridiculous “green new scam.” I withdrew from the unfair Paris climate accord, which was costing us trillions of dollars that other countries were not paying. I withdrew from the corrupt World Health Organization. And I also withdrew from the anti-American U.N. Human Rights Council. We ended all of Biden’s environmental restrictions that were making our country far less safe and totally unaffordable. And importantly, we ended the last administration’s insane electric vehicle mandate, saving our auto workers and companies from economic destruction.(President Trump Address to Congress)

And so on.  And, discursively, at least, and before Congress, President Trump got all the lovin'.

9. That gets one, at last, to the nature of the presidential vision in a phenomenological age.  In 2016 I suggested its parameters ( "Let's Make a Deal" as Economic Policy). The context was the withdrawal of the United States from the Trans Pacific Partnership that it has carefully nurtured (as a sort of new and improved Free Trade of the Americas v. 20). I had suggested then that the withdrawal appeared to mark the abandonment of a multinational American project to build global systems. While the focus was on economics, the reach was fairly comprehensive.  That movement, which was among President Trump first actions as President, and which was then was characterized as from systems to serendipity, provided the clue to its maturing form in President Trump's 2nd Administration. What might have been understood as serendipity when evaluated against a half  a century of systems building in 2016, now is better understood as action sequences, the accumulation of which reveals vision, and in the process, a system building of a vastly different sort. That system is more closely aligned to the inductive, mimetic, and iterative systems of virtual analytics than it was to the old fashioned functionally differentiated bureaucratic systems on which the post-1945 global order was built.  

President Trump's speech may reveal in clearer form that it is perhaps more accurate to speak not of action but of transaction as the experiential basis of inductive vision and systems building. That is, of course, the fundamental premise that marks the phenomenology of the merchant (rather than of the warrior, the priest, the official-bureaucrat or the peasant). It is dialectical and iterative (and in this sense repetitive), the template for which are transactions (results rather than objectives), the accumulation of which reveals--post facto--objective as the expression of transaction. And what result? Perhaps that was best gleaned from President Trump's offer to the people of Greenland: "We will keep you safe. We will make you rich. And together, we will take Greenland to heights like you have never thought possible before. It’s a very small population but very, very large piece of land and very, very important for military security." (President Trump Address to Congress). Within that, round and round one goes because in this model the objectives, the vision, is not stationary but effectively the product of that iterative accumulation of results built around naturalized premises about how the world (and its objects) ought to be working from the centering perspective of the deal makers. There is no end goal here--other than the capacity to continuously engage in transactions that produce results that may be assessed as value positive in accordance with whatever measure proves to be useful at the time.

This is not invented out of thin air; it is the essence of an idealized late twentieth century American corporate model (the essence of which emerged in the 1980s) operating in markets.  These actors are internally authoritarian--complete with market versions of democratic centralism, democratic dictatorship and mass line elements--but externally democratic in the sense of developing relations through constant bargaining for positive impacts (the America Fist variation of the Chinese win-win). Among corporate hierarchs there is bargaining; within the structures of the body corporate, internal relationships will be different. This is the way in which merchants build systems; officials-bureaucrats build the sort of system that for a short while appeared to be strong enough to last a long time; priests build altogether different forms of systems with quite different ways of valuing interactions; ad warriors build the much more old fashioned systems that sometimes in league with priestly and official-bureaucratic elements, framed much of the world  before modernity (eg "And any federal bureaucrat who resists this change will be removed from office immediately. Because we are draining the swamp. It’s very simple. And the days of rule by unelected bureaucrats are over." (President Trump Address to Congress)). Things are messier and more complicated, more nuanced, and less "pure" in reality than any of this. But starting points, orienting points help understand the conceptual cage that drives thinking and explains the manifestation of that thinking in the approach to governance.  One ought to be grateful, in that respect, to the transparency into the thinking of the current American leadership, that President Trumps remarks make possible. The White house version of the address, posted  days later, may be accessed here: Remarks by President Trump in Joint Address to Congress.