Monday, February 6, 2017

Bad Negotiation Tactics

As I'm writing this, the Muslim Ban (call a duck a duck) is currently not being enforced due to a court denial of a brief submitted by the Trump Administration to reinstate the ban immediately.

Now, I'm no lawyer (and no law school debt to go with it!), but I did study negotiation and conflict resolution in grad school, and the argument in the brief is befuddling. The brief states that "The injunction contravenes the separation of powers; harms the public by thwarting enforcement of an Executive Order issued by the nation's elected representative responsible for immigration matters and foreign affairs; and second-guesses the President's national security judgment..." Putting aside the elected representative issue, note how the argument is built - there is a separation of powers, so a judge telling the President what to due isn't fair.

And, this is submitted to a judge.

When constructing an argument, you need to think about the audience that you are presenting this to.  Noel Francisco is the acting solicitor general, who has a bio on the Federalist Society website, so I'll assume at some point he read Marbury v. Madison and heard that judicial review is a thing. Separation of powers is a great place to start, but not for Trump. Unilateral action by one branch is checked by the other two, including the United States Senate having a role to play in foreign affairs. Calling the injunction "second-guessing" of the executive by the judiciary negates the role of the separation of powers.  And what judge is going to agree with this?

Noel Francisco attended the University of Chicago Law School.  Strangely, he was attending school while Barack Obama was teaching Constitutional Law, but it appears that he didn't learn anything there.  It's especially embarrassing, since he seems to have written a brief that would make Trump happy, but without any knowledge of negotiation tactics.  Like, crafting an argument to appeal to the audience, not for one's master.

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