Let’s take a moment to deeply consider the concept of coercion.
When a foreign nation modifies its trade policies in a manner that negatively impacts the United States, it is reasonable that the United States — likely through action from Congress — should have the capacity to adjust its own trade policies in response. There may even be arguments for allowing the president to change trade policy without needing Congressional approval, though this remains uncertain. However, if a foreign nation engages in actions unrelated to trade — such as prosecuting a former government official for alleged corruption — should the president be given the authority to retaliate by altering U.S. trade policy?
This scenario mirrors actions taken by President Donald Trump. Recently, Brazil initiated legal proceedings against Jair Bolsonaro concerning accusations linked to an alleged coup. In response to this, Trump has unilaterally enacted a staggering 50% tariff on goods imported from Brazil.
Brazil’s alleged misconduct is disconnected from trade matters, yet Trump seems to view U.S. trade policy as a tool for coercion.
If Trump’s perspective holds true, it grants the president unchecked authority to compel other nations to comply with his demands. For instance, if Trump disapproves of the prime minister of a hypothetical country, Nowhereistan, could he impose exorbitant tariffs until that government changes its leadership? The implications are vast; the president might exert pressure on any foreign nation to conform to his wishes.
Now, let’s shift our perspective. Instead of focusing on foreign countries, consider the dynamics among American states. Each state enacts its own laws governing local crimes and corresponding punishments. However, Trump has recently expressed dissatisfaction with the practice of cashless bail — a curious stance given his own history of being released on such bail. Although the federal government lacks authority over state bail procedures, Trump has threatened to withhold federal funds from states that do not abolish cashless bail. His executive order is vague about which federal funds might be affected, suggesting a desire for maximum coercion over the states — for example, threatening to eliminate all federal funding to states that maintain cashless bail practices, including critical resources like highway funds and welfare programs.
Trump appears to be seeking expansive power to compel states to comply with his preferences: if states do not conform to his demands regarding laws on abortion or gun control, he might threaten to withdraw vital federal funding.
This raises serious questions about the integrity of states’ rights.
Let’s change our focus once again. Think about universities. If an academic institution engages in unlawful discrimination against a particular group — for instance, if diversity programs are found to unfairly disadvantage white students or if the university allows antisemitism to proliferate unchecked — it is appropriate for the federal government to intervene by cutting off funds related to such discriminatory practices: for example, withdrawing funding for diversity initiatives.
However, does the federal government truly possess the right to employ such a blunt instrument in this context? If the federal government disapproves of a university’s approach to diversity initiatives, does it have the authority to revoke hundreds of millions of dollars in grants allocated for critical areas like medical research?
This is the reality facing universities, and it undeniably feels like coercion.
What about law firms? If the federal government suspects that certain law firms are engaged in vexatious litigation that is detrimental to the national interest, it may have a legitimate interest in such matters. The government could pursue legal action against these firms, win cases, and seek court-imposed sanctions against offending entities. But can the government truly prohibit a law firm’s litigators from representing clients in court and deny approval for mergers involving corporate clients of those firms in an attempt to coerce compliance with federal preferences?
Under Trump’s administration, the federal government appears to be attempting to exert coercive influence over a wide range of entities: foreign governments, state administrations, universities, and law firms. What could be the next target of this coercive strategy?
Consider this: if the federal government takes issue with a specific individual, it can initiate an investigation into that person. Just ask New York Attorney General Letitia James, General Mark Milley, special counsel Jack Smith, or others who have faced similar scrutiny. The financial burden of defending oneself against a federal investigation, regardless of whether any formal charges are ever filed, can be extraordinarily coercive.
Could the situation deteriorate further?
Absolutely.
President Trump made the contentious decision to order the military to destroy a boat carrying 11 Venezuelans he suspected of drug trafficking. Instead of simply intercepting the vessel and arresting its occupants, which would typically result in prison time, the more extreme action of eliminating the individuals entirely — without any formal charges — represents a far greater level of coercion.
Could Trump extend this authority to authorize similar military actions against individuals he labels as terrorists? Or perhaps those he suspects of being drug traffickers within the United States? Is anyone safe from such potential actions?
While it is clear that the federal government wields significant power and that the president is a formidable figure, we must ponder whether we truly want to grant the president unrestrained authority to coerce individuals, governments, and organizations based on arbitrary criteria.
Mark Herrmann has an extensive background, having spent 17 years as a partner at a prominent international law firm, and later managed litigation, compliance, and employment issues at a large multinational corporation. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can contact him via email at <em>inhouse@abovethelaw.com</em>.
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