RUTHFULLY YOURS

One hundred years ago, on Feb. 26, 1917, President Woodrow Wilson learned about the telegram that would pull the U.S. into World War I. The Zimmermann Telegram—a secret offer by Germany to help Mexico reconquer the American Southwest—not only compelled Washington to end a tradition of neutrality, but transformed the balance of world power for the next century. It’s a historical episode with important lessons as President Trump contemplates how to conduct international politics in the 21st century.

In 1914 Germany had launched its U-boat campaign, using submarines to sink ships without warning, including those from neutral nations. In May 1915 a German sub torpedoed a British civilian liner, the Lusitania, killing 128 Americans. Wilson threatened military action if it happened again, which forced Germany to impose restrictions on its U-boats.

As the war ground on, however, Germany began to view submarine warfare as its route to victory. By 1917 the German high command believed it could bring Britain and France to their knees in six months by sinking neutral ships and depriving the Allies of food and supplies. Yet the Germans knew this would arouse the ire of Wilson, who had won re-election only months earlier, running on the slogan “he kept us out of war.”

How to counter America’s potential response? On Jan. 19, 1917, Germany’s foreign minister, Arthur Zimmermann, sent a coded telegram to his ambassador in Mexico. The ambassador was instructed to offer the Mexican president, Venustiano Carranza, an alliance: If America entered the war, Germany proposed that Mexico open a second front against the U.S. The Germans would then help “regain by conquest her lost territory in Texas, Arizona and New Mexico.”

In some ways, it was a clever move. Carranza was still smarting from President Wilson’s decision three years earlier to send an American force to occupy Veracruz, as well as Gen. John J. Pershing’s 1916 expedition against the bandit Pancho Villa. If there was a country in the Western Hemisphere ready to ally with Germany against the U.S., it was Mexico.

But if anything was set to turn American public opinion against neutrality, it was a secret plan to invade the U.S. The British, who had intercepted the diplomatic cable, knew this. So once they had fully decoded the Zimmermann Telegram, they made sure it landed on Wilson’s desk. They gave it to the U.S. ambassador in London on Feb. 24.

When Wilson released it to the public, the telegram rallied patriotic sentiment like nothing since the burning of the White House during the War of 1812. Yet the president remained hesitant. He still believed American neutrality was the best way to promote peace. Even after Zimmermann confirmed the authenticity of the message on March 3, Wilson waited nearly a month before asking for a declaration of war.

Every military tactician fears the Pyrrhic victory—winning a battle but losing the war. Defense Secretary Jim Mattis might want to brush up on his Plutarch, as he continues to fight a one-man personnel skirmish.

President Trump promised to rebuild our hollowed-out military, a cause as urgent as any domestic priority. Years of Obama budget cuts and neglect slashed force sizes and provoked a readiness crisis. Over half the Navy’s aircraft are grounded. Of 58 Army brigade combat teams, only three are ready to immediately join a fight. The Air Force is short pilots and aircraft maintenance workers.

Mr. Trump chose a man singularly gifted to take on such a huge challenge. “Mad Dog” Mattis is a highly intelligent and revered Marine, whose time on the battlefield has made him intimately familiar with the needs of a fighting force. He’s a steely-eyed warrior who’ll fight for the rebuild mission, and who is willing to speak truth to his boss and Congress about what it will require. That is, if he will stand down long enough to get the project started.
Because right now, Mr. Mattis is fighting alone in the Pentagon, a situation of his own design. He was confirmed on Inauguration Day, yet as March approaches the White House hasn’t nominated a single subcabinet position in the Defense Department. No deputy secretary. No undersecretaries. No assistant secretaries. This is because Mr. Mattis is battling with the White House over who gets the jobs.

A soldier first—a politician only by presidential request—Mr. Mattis hews to the honest belief that defense should always be a bipartisan cause. He wants to choose his own team based on the strength of their views, political affiliations be damned. He wanted, for instance, former Obama undersecretary Michèle Flournoy for a top post. He’s looked to recruit from Ms. Flournoy’s liberal-hawk think tank, the Center for New American Security. And he’s pushed for some names who hail from Never Trump backgrounds, including Mary Beth Long, an official in George W. Bush’s Pentagon.

Perhaps only to make a point, Mr. Mattis is blocking some rock-star conservative talent. One is Mira Ricardel, a former Boeing executive and Bush Pentagon alum who helped with the Trump transition. Mr. Mattis continues to nix a long list of names offered by the White House team.

This defense secretary has one of the biggest jobs in the administration, and he’s right to want to be consulted and to have a team he trusts. There’s also nothing wrong with looking outside the partisan box.

At the same time, Mr. Mattis surely understands the chain of command. This isn’t just a question of choosing random “staff.” These are presidential appointments for consequential positions, with authority over budgets, personnel and operations. The Trump White House has a right to want people it trusts as much as it trusts Mr. Mattis. The former Marine is accorded influence. The president is accorded the call. CONTINUE AT SITE

The Framers designed a system whereby the primary method of protecting individual rights lay in dividing the power of government both vertically and horizontally (federalism and the separation of powers, respectively). This innovation, applying a blend of ancient and Enlightenment-era political philosophy, would prevent anybody in the ruling class from gaining too much power over the people.

But our constitutional jurisprudence has not always reinforced this structure. Indeed, over the past century we have seen more and more power transferred from the states to the federal government — and from the judicial and legislative branches to the executive. The main protection for freedom became what the Founders originally considered a redundant afterthought, the Bill of Rights (which, as the late Justice Scalia liked to say, most tin-pot banana republics have). With the nomination of Judge Neil Gorsuch to the Supreme Court, however, there is renewed hope for a renaissance in enforcing the Constitution’s structure as the means for securing and protecting ordered liberty.

Like Justice Scalia — whose seat Gorsuch is tapped to fill — the nominee applies the Constitution’s original meaning to these structural provisions, and he recognizes the importance of limiting government to protecting rights. But Gorsuch has been more willing than Scalia was to take them seriously and not just defer to executive agencies, because he recognizes the damage that the modern administrative state has wrought on individual liberty.

In United States v. Nichols (2015), Gorsuch confronted the delegation of the legislative power to the executive branch. And so he considered the “non-delegation doctrine,” which comes directly from Article I of the Constitution: “All legislative powers herein granted shall be vested in a Congress of the United States.” That seems pretty clear, but the Supreme Court, in nodding toward the practicalities of modern government, has allowed congressional delegation of the lawmaking power if there is an “intelligible principle” for the executive to follow. In practice, Congress gives very few principles, much less intelligible ones; instead, it passes vague statutes with little guidance for how to implement them. This gives the executive free rein to promulgate rules that have the binding force of law.

In his Nichols dissent, Gorsuch invoked the Framers to explain the importance of keeping legislative power in Congress:

The framers of the Constitution thought the compartmentalization of legislative power not just a tool of good government or necessary to protect the authority of Congress from the encroachment by the Executive but essential to the preservation of the people’s liberty. . . . By separating the lawmaking and law enforcement functions, the framers sought to thwart the ability of an individual or group to exercise arbitrary or absolute power.

Gorsuch’s opinions have also questioned the constitutional implications of granting deference to administrative agencies through judge-made doctrines. These doctrines — emanating from the cases in which they were derived, such as Auer, Chevron, and Brand X — require courts to defer to agency interpretations of ambiguous statutes and regulations. Chevron and Auer deference allow agency “experts” to fill gaps in these ambiguities to craft policy — essentially letting the executive write legislation. Brand X, for its part, requires courts to defer to post-hoc executive interpretations of statutes even after a federal court has already construed the statutes’ meaning — conferring on the executive the judicial power to have the final say on “what the law is” (to quote Chief Justice John Marshall in the foundational case of Marbury v. Madison). Gorsuch wrote a much-heralded opinion (and separate concurrence!) in Gutierrez-Brizuela v. Lynch (2016) analyzing whether these doctrines violate the Constitution’s separation of powers.