++The pharmaceutical supply chain is broken, but if youâre facing a drug shortage, you have more power than you think. +
++By the time people get to Laura Bray, theyâve been failed by the US government, all of its agencies, and the entire global pharmaceutical supply chain. +
++So when someone calls her at Angels for Change, the patient advocacy organization she founded in 2019 with a mission of ending drug shortages, one of the first things Bray does is reassure them that theyâre not the problem. âI want you to know that drug shortages are real. You deserve access to their medicine,â she tells them. âAnd itâs not their fault, and somebody should have done better. And they all cry,â she says. +
++Bray gets it. When her young daughter was getting leukemia treatment, one of the chemotherapy drugs she needed was unavailable due to a global shortage. She was stunned: A professor of business in Tampa, Florida, she knew other distribution channels werenât nearly so brittle. A bank about to run out of cash would never be allowed to fail. Redundancy and resilience is built into our monetary, food, and oil supply chains, she thought, âbut itâs just not there for pharmaceuticals. Why?â +
++Five years later, drug shortages in the US are at a 10-year high. The putative reasons are manifold: As the Food and Drug Administration has scrambled to catch up on inspections of routine drug manufacturing facilities in the wake of pandemic closures, the deficits theyâre finding â and the production delays theyâre leading to â are piling up all at once, says Erin Fox, a doctor of pharmacy and medication shortage specialist at the University of Utah, whose drug information service provides content to a drug shortage database run by the American Society of Health-System Pharmacists (ASHP). Simultaneously, a large chemotherapy drug plant shut down due to quality problems; opioid settlement rules have reduced pharmacy ordering capacity for controlled substances, including ADHD drugs; and rising rates of syphilis are chewing through an already-low supply of injectable penicillin. +
++The real reason shortages keep happening, says Bray, is because patient outrage never reaches the supply chain. Sheâs on a quest to change that: After thousands of phone calls eventually got her daughter the treatment she needed, she created an organization aimed not only at serving individualsâ medication needs but at unifying their voices to demand better. +
++Few people have the time or the background to spend hours on the phone with hospitals, pharmacies, lawmakers, and pharmaceutical companies to get a medication. And while thereâs been more awareness about drug shortages in the past year than the US has seen in some time, theyâre not going away any time soon. +
++You can and should get hopping mad about drug shortages. And if youâre affected by one yourself, you have more power than you might think when it comes to getting the medication you need. +
++Broken financial incentives and a lack of transparency are at the heart of drug shortages +
++Fundamentally, shortages are related to problems that decrease a drugâs supply and increase its demand. Most shortages are rooted in supply problems â and in about two-thirds of cases that the FDA reports in its own drug shortage database, Fox says, quality problems at a manufacturing facility are at the heart. +
++Many of the quality problems affect the production of generic drugs, which are both most commonly used and cheapest for consumers. âItâs just a race to the bottom with these companies trying to gain market share,â says Fox. Pharmaceutical companies make so little money on generics that many eventually either stop making them, cut corners on quality, or opt not to upgrade the facilities that produce them. All of that makes production lines that produce generic drugs particularly vulnerable to shutdown â which, because the drugs are used so widely, ends up affecting a lot of people. +
++[Related: The ongoing, unnecessary Adderall shortage, explained] +
++Profit considerations also have a lot to do with the other one-third of drug shortages that the FDA reports, says Fox, which include related production stoppages unrelated to quality. For example, if a manufacturer can produce a more profitable drug in the same plant where it produces a less profitable drug, it might simply choose to make more of the one that nets more money. Nobody can force the company to make the less profitable drug. +
++Production problems related to raw material shortages or natural disasters â like Hurricane Maria, which shut down a Puerto Rico factory that made bags of saline, and a tornado that hit a Pfizer plant in North Carolina â can also cause big disruptions in the drug supply. +
++These shortages would be a problem even if there were a robust system for reallocating the drugs they affect. But that system doesnât exist, says Mariana Socal, a physician and researcher who studies the US pharmaceutical industry at Johns Hopkins Universityâs Bloomberg School of Public Health. Part of the reason: Nobody outside the FDA knows exactly where the problems are. +
++âThereâs no transparencyâ around what triggers any one shortage because private entities are allowed to keep that information under wraps, says Socal. She thinks about drug shortages every time she unpacks her groceries: âA box of fruit or vegetables says âProduced in Californiaâ or âOrigin: Mexico,ââ she says, but you have no idea where a container of generic Tylenol came from or whether you can feel confident in the product. +
++The opaqueness of the production system, and the absence of a method for equitably allocating drugs when there is a shortage, means that only the savviest pharmacies get whatâs left of a drug supply when itâs running low. âItâs like Hunger Games,â says Fox. âWhoever can order ahead, whoever has the most resources to kind of hear about a shortage first, to try to put in as many back orders with different companies as possible â those places are more likely to get some product in.â +
++Fox has tried to change this herself. Ten years ago, when there was a spate of pediatric cancer drug shortages, she asked the FDA and pharmaceutical companies to reserve the remaining drug supply for sale only to pediatric cancer centers. âEveryone was like âOh, itâs a free market â we canât tell these manufacturers what to do,ââ she says. +
++So when waves of illness increase the demand for certain drugs â as surging syphilis rates have done for penicillin, and as cold and flu season does for fever reducers and amoxicillin â consumers are left holding the (empty) bag. +
++Jesse Ehrenfeld, a physician and current president of the American Medical Association, says solving drug shortages requires a multipronged approach. Any fix should prioritize developing more capacity for producing key medications, putting plans in place to minimize supply chain disruptions, creating a larger pool of generic drug manufacturers, and changing FDA processes to allow more drugs into the marketplace. +
++Thereâs hope for seeing some of this happen: Despite the US governmentâs reluctance to regulate private business â especially in industries with powerful lobbies â Fox says thereâs been more advocacy before Congress on drug shortages this year than she has seen in her two decades following the issue. +
++Much of the draft legislation is what Bray describes as âpet projectsâ: bills too narrowly focused on one part of the supply chain to really fix the problem. However, she was pleased to see a more robust approach in a white paper the Senate finance committee recently released and says the Senate energy and commerce committees have also been doing good work. +
++Bray also says the White House plan to address drug shortages announced in late 2023 is a good start. Notably, that plan proposed designating a government employee to provide the service Bray has been providing for people who reach out for help. Currently, she is the only person she knows of who directly links people affected by drug shortages with emergency supplies of their medications â and sheâs a private individual, effectively a one-woman operation, alone in a Tampa office park except for a single employee who helps her with social media. âI could do it so much better if I had more people,â she says. +
++What to do if thereâs a shortage of a drug you need +
++Bray gets an average of four requests a day, and depending on whoâs calling, the work she does in response may help anywhere from a handful to thousands of patients. Although many of her calls come from clinics, hospitals, and manufacturers, she often hears from individual patients â and when she does, she suggests they take the series of steps outlined below, which Iâve interspersed with tips from the other experts I spoke with. +
++Although itâs easy to feel a sense of panic when facing down a shadowy tangle of dysfunctional institutions, take a deep breath and know that there is a path forward, and there are resources and advocates out there that can help. +
++Itâs obviously less stressful to have a few days to deal with a drug shortage rather than a few hours. When you can, plan ahead: If youâre reupping a drug youâre already taking, âgive it a few extra days as opposed to waiting until the last minute to request a refill,â says John Beckner, a pharmacist who directs strategic initiatives at the National Community Pharmacists Association (NCPA). +
++Before you do too much work, itâs worth seeing whether an independent pharmacy in your area can locate a supply of the drug you need. Theyâre less likely to just say âWeâre out of stock â we canât get it,â says Beckner. âTheyâre going to explore other means to try to obtain that drug.â That may mean calling around to smaller drug wholesalers or buying a small quantity of a medication that might not be on the radar of a drugstore that buys medications by the pallet. You can find a local independent pharmacy using the NCPAâs pharmacy locator website. +
++If youâre still unable to get the medication you need, hereâs what Bray counsels people to do. Parts of this process are things patients must do on their own, but Bray is happy to help people who get stuck at any point along the way and welcomes contact by phone or email. +
++1) Look for the generic form of the drug in the two drug shortage databases that contain all the information available to the American public about specific medicinesâ availability: the one maintained by the FDA and the one run by the ASHP. Theyâre similar, although the ASHP database has a lower threshold for reporting a shortage, says Bray. +
++This first step helps patients determine not only which brands and dosages of a drug are unavailable, but also which are available. +
++2) Call your insurance company, ask to speak with a manager, explain that you are affected by a drug shortage, and ask them to give you coverage for whatever alternative form, brand, or dose of the drug you might be able to get access to. +
++The reason to do this is that insurance companies cut deals with various drug intermediaries â called pharmacy benefit managers â for specific medicines within each class of drugs and specific dosages of those medicines. Ostensibly, they do this so they can buy those specific medicines in bulk quantities at a discount and cover most of their cost when they are prescribed to you. The list of medicines and dosages an insurance company covers, its hot list of sorts, is called its formulary. +
++But where thereâs a hot list, thereâs a not list: If youâre prescribed a dosage or brand of a medicine that isnât on your insurerâs formulary, or a similar medicine that isnât on its formulary, the company wonât cover it â and youâll have to pay for it out of pocket, which can be wildly expensive. +
++Patients can ask their insurers to temporarily cover a drug that isnât on their formulary in a shortage situation like this, says Bray. âSay, âIâm going to be talking to my physician about giving me access to the [forms, brands, or dosages of the drug] that are available here and changing my prescription. Can you ensure that you open up the formularies while this shortage is happening so that I can get access to any of them?ââ +
++Bray suggests explaining that you would not be asking for this change if the on-formulary drug were available to you, but itâs not. The conversation â one patients or their policy holders must have with their providers themselves â is usually successful, she says. +
++3) Contact the health provider who prescribes the unavailable drug, let them know thereâs a shortage, and ask which of the available alternatives they can prescribe you. Bray suggests sending them a link to these alternatives. Theyâre easy to find in the ASHP database â just click on the name of the drug in shortage and scroll down to âAvailable Products.â +
++Providers are often aware of shortages and generally want to do the right thing to help patients get through them, says Ehrenfeld. +
++If your provider sends the alternative prescription to your pharmacy (or a hospitalâs pharmacy, if youâre calling on behalf of a hospitalized patient) and the drug is in stock, this might be the triumphant end of your road. If not ⊠+
++4) Seek an alternative pharmacy. If your usual pharmacy is part of a large chain, staff may be able to check the inventory of other local chain outlets, either online or over the phone â just ask. +
++Again, nimbler independent mom-and-pop pharmacies may be better able to fill in drug availability gaps. In addition to having access to different supply lines, their staff may have more time to make calls about small quantities of scarce medications or their alternatives. In general, says Beckner, your pharmacist â whether independent or at a chain â âcan really become your advocate and confidant,â especially if youâve established a good relationship. +
++5) Call Angels for Change if youâre still struggling to find the medication you need after all of this, urges Bray. She can work to identify the supply map for a medication, and she can reach out to its manufacturers to inquire about any emergency supply they may have on hand and clarify the timeline for having more supply available. +
++It might be tempting to look online for a medication when youâre affected by a shortage, either on social media or by ordering from a sketchy internet pharmacy. All of the experts I spoke to recommend against this approach. You never know whether the medication was stored properly or whether itâs counterfeit, and youâre at risk for being price-gouged, says Fox. +
++Brayâs strategy is one âthat requires sophistication and a lot of work that just should not be necessary in this day and age, with all the technology that we have and all of the resources in the nation,â says Ehrenfeld. âItâs because we have erected barriers to getting people the care that they need.â +
++
++Nations like the US have more firepower than ever before â but they also appear weaker than ever. The upshot is a world that feels out of control +
++The world, we are told, is entering a new era of âgreat-power rivalry.â Or at least, it was supposed to be. +
++The most recent US National Security Strategy, issued by President Joe Bidenâs administration in 2022, confidently asserted that âthe post-Cold War era is definitively over,â and that we were entering an era defined by âcompetition between the United States and the worldâs largest autocraciesâ â namely, China and Russia. +
++The strategy explicitly states that the US does not seek a ânew Cold War,â but its framing of the world as an ideologically driven competition between democracy and autocracy makes it hard to avoid the comparison, particularly since the same superpowers are involved this time around, just with a little economic and political rebranding. +
++But is the Cold War the right analogy for whatâs happening now? There is no shortage of alternatives. Pointing to Vladimir Putinâs territorial aggression, Ukraineâs leaders and their defenders have cast their comparison to World War II, with Russia now in the role of Hitlerâs Germany. (Putin himself wouldnât argue â he just portrays the other side as the Nazis.) Perhaps, some cautious ârealistsâ suggest, the entangling alliances drawing Western countries into conflict make this moment more like the lead-up to World War I. Certainly the reemergence of trench warfare on the European continent for the first time in decades makes it hard to resist the comparison. +
++To suggest as the Biden administration has that weâre entering a new age of superpower conflict, whatever historical comparison you reach for, is also to argue that weâre turning the page on an era in which Americaâs main national security concern was not other powers, greater or lesser, but non-state terrorist groups. There was reason to think this after the decimation of al-Qaeda and ISIS. But the October 7 Hamas attacks on Israel were a shocking reminder that, while we might not be interested in non-state terrorist groups, theyâre still interested in us. +
++The result is that the US now finds itself operating in two strategic eras at the same time. In one, heavily armed industrial militaries fight a catastrophic war over a chunk of Europe (with a potentially even more catastrophic invasion scenario lurking in Asia). And in another, a Yemeni rebel group using rudimentary drone and missile technology shows itself capable of causing a disruption to global supply chains on par with Covid-19. +
++To comprehend this chaotic era â one in which nation-states boast historically destructive firepower but in many ways appear weaker than ever, unable to mobilize their populations around a common call or control their international environment â we need to go beyond the well-worn 20th-century analogies. We need to get medieval. +
++Back to the future +
++A recent paper published by the RAND Corporation argued that to understand the risks involved in superpower competition between the US and China, itâs vital to understand that we live in what the authors describe as a âneomedieval era.â +
++âThereâs so many anomalous things about our current situation that I found existing theories very unsatisfying,â said one of the paperâs co-authors, Timothy Heath, a senior defense researcher and China specialist at RAND. He points to unexpected events like the increasing centralization of power in Xi Jinpingâs China and the political fault lines exposed by the January 6 insurrection in the US. â What Iâve realized is that the last 200 years in many ways stand out as an incredible anomaly in human history, and that the situation weâre in now actually has a lot more features in common with the pre-1800 world than the recent past.â +
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Ahmad Hasaballah/Getty Images
++Saying we live in a âneomedievalâ moment doesnât mean that a US-China war would be fought with broad swords and chain mail. The authors define the neomedieval era, which they argue began around 2000, as being âcharacterized by weakening states, fragmenting societies, imbalanced economies, pervasive threats, and the informalization of warfare.â +
++Thinking about the world this way requires a bit of a mental adjustment, largely because weâre accustomed to thinking of states as the core units of international relations. âStates,â according to the sociologist Max Weberâs classic definition, are the entity that claims a monopoly on the legitimate use of force within a given territory. And the world map as we know it is divided up into 193 or so of these territories, which we call âcountries.â They have flags, capitals, and United Nations ambassadors. +
++But this is a relatively recent arrangement. Historians generally date the emergence of the modern state system back to 17th-century Europe. Before that, nationality had what the historian C.V. Wedgwood described in her history of the Thirty Yearsâ War as a âfluidity which is startling to the modern mind.â Governmental authority was often divided between royal families and religious authority. Royals could be of a completely different nationality from the people they governed, with authority rooted in heredity and marriage rather than popular consent. (Britainâs ruling House of Windsor, currently led by King Charles III, traces its origins to what is now Germany.) The authority of a king could be challenged by local barons and dukes. âNo one thought it strange that a French soldier should command an army against the French and loyalty to a cause, to a religion, to a master, was commonly more highly esteemed than loyalty to a country,â Wedgwood wrote. +
++The idea that geopolitics might be going back to the future isnât new. Back in 1977, the international relations theorist Hedley Bull wrote that it was âconceivable that sovereign states might disappear and be replaced not by a world government but by a modern and secular equivalent of the kind of political organization that existed in Western Christendom in the Middle Ages.â He defined this organization as one in which âno ruler or state was sovereign in the sense of being supreme over a given territory.â In other words, the state is no longer the only game in town when it comes to governance. +
++The neomedieval analogy had a moment of popularity in the 1990s, when theorists sought to capture the sudden political and economic complexity of a post-Cold War world torn loose from the two poles of the US and the Soviet Union. Neomedievalism was dusted off to explain a world in which multinational corporations, often with senior executives from multiple countries and little loyalty to the country where they were based, could acquire a level of political power that rivaled national governments. âThe hierarchies of international capitalism resemble the feudal arrangements under which an Italian noble might swear fealty to a German prince, or a Norman duke declare himself the vassal of an English king,â the journalist Lewis Lapham wrote in 1988. +
++Neomedievalism was also used to explain arrangements by which governments would voluntarily surrender a certain level of sovereignty to multinational bodies, as the nations of Europe did with the European Union, culminating in the introduction of a common currency in 1999. +
++In an influential and controversial 1994 Atlantic article â later expanded into a book, The Coming Anarchy â journalist Robert Kaplan portrayed West Africaâs chaotic civil wars, fought in territories where national boundaries drawn by colonial powers that often had little relation to ethnic realities on the ground, as a preview of a world where national borders were less relevant and âa pre-modern formlessness governs the battlefield, evoking the wars in medieval Europe.â +
++In more recent years, the idea has been taken up by writers like the paratrooper-turned-military contractor-turned-academic Sean McFate. His 2015 book The Modern Mercenary argued that the increasing prevalence of private military contractors, such as Americaâs Blackwater or Russiaâs Wagner Group, in conflicts around the world presaged a neomedieval world in which âstates did not enjoy the monopoly of force and subsequent special authority in world politics.â +
++âStates are not timeless,â McFate told Vox. âTheyâre not universal. They had a beginning, a middle, and they may have an end.â +
++The court of Putin +
++For all its resemblances to 20th-century warfare, the ongoing Russian war in Ukraine has some clearly premodern characteristics. Which makes sense, given who is prosecuting that war âthe UK-based Russia analyst Mark Galeotti describes Russia under Vladimir Putin as âa peculiar hybrid: an almost medieval court perched atop a modern, bureaucratic state.â +
++Galeotti explained to Vox that in terms of âday-to-day aspects of governance,â Russia is âreally not that different from any other European country,â with typical bureaucracies running day-to-day affairs â your ministries of finance or foreign affairs. But, he says, âfrom time to time, someone from far, far above reaches down and changes things, whether itâs something as basic as arranging for someone to be arrested, or having someoneâs driving offenses erased, or dramatic changes to macroeconomic policy.â The power of the people who can make these changes is determined â as in a medieval court â solely by their proximity to the absolute ruler. âThose people who have the favor or the ear of Putin can basically do whatever they want.â +
++This dynamic was illustrated most dramatically in the decision to invade Ukraine, and in how war has been conducted. âThis war is being fought the way that Putin and his collection of cronies, none of whom have military experience, decided to fight it rather than the war that the generals would have fought,â said Galeotti. It was the act not of a president, which Putin technically is, but a king â or, better, an emperor. +
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Eugene Hertnier/Global Images Ukraine via Getty Images
++And for all of Putinâs constant invocations of the Great Patriotic War, as World War II is known in Russia, it is abundantly clear that Putin has little hope of mobilizing society on the level that Josef Stalin did during that conflict. Russia is set to spend about 6 percent of its gross domestic product on defense and military spending this year. This may be an unprecedented number in modern times, but it is nothing compared to the 61 percent of GDP the Soviet Union spent during World War II (or the 50 percent spent by the US in that war, for that matter). +
++For all that Russians may support what Putin calls the âspecial military operationâ in principle, they donât seem particularly eager to put their lives, or their childrenâs lives, on the line for it the way their grandparents did in the Great Patriotic War. Nor does Putin have the ability to compel service as Stalin did without risking his own position. In the fall of 2022, Russia announced a âpartial mobilization,â to call up around 300,000 men to fight in the war, but a far greater number than that â perhaps as many as 700,000, according to some estimates â chose instead to flee the country. +
++Galeotti cautions against thinking of this unwillingness to die for the cause as just a Russian issue. âI was talking to someone recently from the British Ministry of Defence, who was saying, âGod only knows what would happen if we had to try and call up our reserves.ââ Indeed, a recent poll found that nearly a third of Britons ages 18 to 40 say they would refuse to serve in the military if a world war broke out and the country was under imminent threat of invasion. +
++The Ukraine war has also exposed the unreadiness of most Western powers to produce the firepower needed for an all-out industrial-scale conflict. The US has had to scramble to ramp up production artillery shells after it became clear that Ukraine was firing about half the number of shells in a day that the US was producing in a month before the war. According to one estimate, near the start of the Ukraine war, Germany had only about enough shells in its reserves for two days of heavy fighting. +
++Ukraine may end up being the exception that proves the rule. Itâs a throwback to mid-20th-century warfare, but the Ukrainian conflict makes it very clear that 21st-century countries are not at all equipped to fight that kind of war. +
++âThe only way to fight a total war is to basically become an authoritarian socialist system,â said Galeotti. âThe point of the matter is modern states arenât used to doing this kind of thing.â +
++Between the lines in the Middle East +
++A neomedieval perspective can be helpful in analyzing the dizzyingly complex interlocking conflicts in todayâs Middle East â and not only because itâs one of the few regions where absolute monarchies, like Saudi Arabia and its Gulf neighbors, are still major power players. +
++The escalating regional crisis set off by the October 7 attacks is one in which questions of nationality are as fluid as they were more broadly in the premodern era. The territory referred to as âPalestine,â including Gaza and the West Bank, is geographically noncontiguous, politically divided, and not fully sovereign in terms of having a monopoly on the use of force over its territory. The groups in Iranâs âAxis of Resistanceâ â Hamas, Hezbollah, the Houthis, the various Shia militias of Iraq and Syria â occupy a sort of in-between status in the international system, not quite one thing or another. +
++Hezbollah is a political party serving in Lebanonâs internationally recognized government, and the de facto governing authority in parts of the country, and a militia group fighting against Israel as well as on behalf of the Bashar al-Assad regime in Syria, and a kind of vassal force on behalf of its chief patron, Iran. Yemenâs Houthis are routinely referred to as ârebelsâ and not recognized as the legitimate government of Yemen by the international community, even though they control the countryâs capital. Hamas is viewed by Iran as a tool for projecting regional power but often seems to act independently. +
++In other words, itâs a region where looking at the lines on the map will only tell you half the story of whatâs happening. +
++A different kind of superpower clash +
++What would a true World War look like in a neomedieval world? The RAND paper argues that during the 19th and 20th centuries, industrial societies experienced a strong degree of âsocial cohesionâ that included a âstronger sense of collective purpose, shared culture, and common values.â This cohesion often came at the expense of ethnic and sexual minorities who experience discrimination and exclusion within those societies, but it also made possible the social and industrial mobilizations necessary to fight world wars. +
++Thatâs not the case today. âIn China and the United States, social disorder has grown, to which governments have struggled to respond. The result has been a further erosion in state legitimacy,â the paper suggests. Even as tensions between the two superpowers have grown, âNeither side has mobilized its citizenry against the other, and strategies of mass mobilization do not appear plausible for the foreseeable future.â +
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Greg Baker/AFP via Getty Images
++A theoretical US-China war, most likely over Taiwan, would look nothing like what Americans have gotten used to in the last 50 or even 75 years. Even one of the more optimistic simulations of combat over Taiwan foresees the Americans losing half as many troops in three weeks as in 20 years of fighting in Iraq and Afghanistan. Americans have gotten used to a world in which a small fraction of the population fights its wars: Less than 1 percent of adults are in the military, and less than 6 percent have served. Americaâs armed forces increasingly rely on what some experts have termed a âwarrior casteâ of multigenerational military families. The US military now regularly falls short of its recruitment goals. +
++Perhaps American society would ârally around the flagâ in what seems like it could be World War III. But public trust in the military, while still high, has been falling dramatically in the US in recent years, including among conservatives during the years when President Donald Trump was frequently feuding with his military commanders. Events like the January 6 insurrection and Texasâs conflict with the federal government over border policy do not suggest a level of societal cohesion remotely necessary for global conflict as we knew it in the 20th century. +
++China might seem at first like well equipped for such a conflict: a relatively ethnically homogeneous society with a powerful authoritarian state and little public dissent. But, RANDâs analysts argue, appearances can be deceiving. Modern China, they say, is struggling with âcorruption, malfeasance, and the failure to reverse destabilizing levels of inequality,â and has resorted to brute force to quell regional discontent in places like Xinjiang and Hong Kong. The social strains exposed by Chinaâs âzero-Covidâ response to the pandemic, which included rare public protests and a new wave of out-migration, raise some questions about the Communist Partyâs ability to maintain public commitment to a deadly and protracted all-out war. +
++âCompare Xi Jinpingâs power to Mao Zedongâs,â says RANDâs Heath. âThe people tried their best to carry out Maoâs schemes, even when they cost tens of millions of lives. By contrast, Xi Jinping has admitted on numerous occasions that the Chinese state simply can no longer meet the needs of the people.â +
++Analysts have suggested that China, which has not fought a war since an ill-fated invasion of Vietnam in the 1970s, would need to send 1 million to 2 million troops across the Taiwan Strait to have a hope of taking the island. (Russiaâs pre-invasion ground force in Ukraine, for comparison was around 360,000, and did not need to make an incredibly complex amphibious landing.) Its forces would likely take heavy losses even if they were successful. Is Xi Jinping really willing to bet the future of his regime on the assumption that many Chinese families would be willing to sacrifice their only children to his war? +
++The significance of all of this, the authors argue, is that great power rivalry in the years to come will âbear little resemblance to the titanic struggles of the past two centuriesâ and that âshould the U.S.-China rivalry escalate to hostilities, the weakness of the states will seriously constrain their options. Incapable of mobilizing their societies for total war, the two sides might instead fight through proxy conflicts or by provoking political unrest in the rivalâs homeland.â +
++A blockade scenario, cutting Taiwan off from food, energy, and other vital supplies, would be very much in the spirit of neomedievalism, evoking the siege tactics of centuries past. +
++The center cannot hold. But does that matter? +
++Neomedievalism also seems an appropriate framework for a time when national leaders of major industrial power are, with a few notable exceptions, universally unpopular. There are increasing doubts about the ability of modern states to cope with factors like the climate crisis, geopolitical instability, financial volatility, demographic decline, and rapid developments in technologies like artificial intelligence â a set of interlocking complex challenges some commentators have termed the âpolycrisis.â Itâs also a sobering worldview to consider when looking at what appears to be a pronounced uptick in the number of armed conflicts around the world and the number of casualties in those conflicts, after years of declines in both. +
++Yet while the concept of a neomedieval world might bring to mind images of a Hobbesian war of all-against-all or a Mad Max-like anarchy, many advocates of the term are not so pessimistic. The Princeton professor Philip Cerny instead predicts that the neomedieval world will be one of âdurable disorder,â where some power is distributed from state to non-state actors but where key problems and global challenges can still be addressed. The dark ages were not always dark. Cerny points out that the medieval era in Europe âwas one of increasing social, economic, and political developmentâ as well as âgrowing surpluses [and] the spread of knowledge and innovation.â +
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Richard A. Brooks/AFP via Getty Images
++Neomedievalism âhelps people make sense of a world that doesnât have order, but itâs not collapsing,â said McFate. âAnd I think increasingly, thatâs what the 21st century kind of looks like.â +
++And Heathâs framing of the risks of a potential US-China conflict shows that, rather than being more violent, a neomedieval world might actually be somewhat more peaceful, or at least one in which powerful states are more constrained in their ability to wage all-out war on each other. +
++To be sure, though, one factor that neomedievalism canât account for is nuclear warfare, which could allow leaders to inflict far higher levels of destruction with far less effort. If leaders are unable to mobilize their societies or industrial sectors to fight total wars, pushing the nuclear button might become more tempting. +
++Neomedievalism might help us understand how the wars of the future will begin, but leaders today have a lot more firepower they can use to end them than they did 400 years ago. +
++
++
++Itâs hard to imagine this Supreme Court removing Trump from the ballot. But his lawyers gave the justices very little to work with. +
++Well, the Supreme Court fight over our insurrectionist former president is finally upon us. +
++On Thursday, the Court will hear oral arguments in Trump v. Anderson, the case asking whether Coloradoâs highest court was right to remove former President Donald Trump from the ballot because of his role in the January 6 insurrection. If the justices affirm the state court, that would most likely mean that Trump is removed from the ballot everywhere â because a constitutional ruling by the Supreme Court binds every judge in the country. +
++Section 3 of the 14th Amendment provides that no person who previously held high office may serve in such office again if they âhave engaged in insurrection or rebellionâ against the Constitution. The Colorado Supreme Court ruled that Trump violated this clause when he incited his followers to attack the US Capitol, in a failed attempt to overturn the 2020 election. +
++Anyone who thinks Anderson will be the deus ex machina that saves America from the Bad Orange Man, however, would do well to remember who sits on the Supreme Court of the United States. The Court has a 6-3 Republican supermajority, and half of the Republican justices were appointed by Trump. +
++That said, Trumpâs lawyers, in their brief to the justices, gave his fellow partisans on the Court little to work with. As election law scholar Rick Hasen writes, âthe arguments that Trump has advanced in his most recent brief are weaker and more hedged than I would have expected,â and âitâs hard to know exactly where the court goes from here,â given this meager performance by the former presidentâs attorneys. +
++So, if you are a gambler, youâd be wise to bet on Trump prevailing in the Supreme Court, even though it is far from clear how the justices will justify such a decision. +
++Trumpâs legal arguments, briefly summarized +
++Trumpâs brief leaves what is probably his strongest legal argument on the table. +
++In the Colorado Supreme Court, two of the dissenting justices suggested that the somewhat truncated process a trial court used to determine whether Trump should remain on the ballot did not provide him with due process. But Trumpâs brief does not make this argument. Indeed, it only mentions it in passing, in a section of the brief describing what happened in the lower courts. +
++One possible explanation for this oversight is a decision holding that Colorado committed a process violation wouldnât resolve the question of whether Trump gets to stay on the ballot. Some other state could disqualify Trump by conducting a trial that meets whatever procedural threshold is required, and Colorado could even reopen this issue by retrying Trump. +
++But Trumpâs brief leans into other arguments that would merely delay a reckoning over Trumpâs eligibility to be president. Specifically, Trump accuses Coloradoâs highest court of violating the stateâs laws when it ruled against him. This is a weak argument because each stateâs highest court, and not the US Supreme Court, is generally understood to have the final word on all questions of state law. +
++In its last term, however, the Court considered a many-times-rejected legal argument, known as the âindependent state legislature doctrineâ (ISLD), that would allow the justices to bypass this rule. But the Court almost entirely neutralized the ISLD after a bipartisan array of legal experts warned the justices that this theory would lead to chaotic and untenable results. Even Steven Calabresi, the co-chair of the conservative Federalist Society, told the justices that the ISLD âflout[s] core tenets of the American Founding.â +
++Trump, in other words, is asking the Court to open a Pandoraâs box that it slammed shut after hearing widespread alarm from across the legal profession â including some of the conservative movementâs most dedicated activists. +
++And then thereâs Trumpâs primary argument for staying on the ballot. The 14th Amendment uses the term âofficer of the United Statesâ to describe former officials who are disqualified from serving after engaging in an insurrection. Trump makes the extraordinary argument that the president, the highest-ranking officer-holder in the United States and the commander-in-chief of its military, does not qualify as an officer of the United States. +
++In support of this argument, Trumpâs legal team points to a handful of constitutional provisions â all drafted nearly a century before the 14th Amendment was ratified â that seem to exclude the president from the term âofficers of the United States.â One provision, for example, says that the president âshall Commission all the Officers of the United States.â Read in isolation, this provision does suggest that the president is not an officer. +
++But the Constitution is riddled with other provisions suggesting the president is, in fact, an officer of the United States. As the Colorado Supreme Court noted, âthe Constitution refers to the Presidency as an âOfficeâ twenty-five times.â +
++The plaintiffs challenging Trumpâs eligibility point to myriad evidence indicating that, by the time the 14th Amendment was ratified in 1868, the term âofficer of the United Statesâ was understood to include the president. This includes an 1823 opinion by Chief Justice John Marshall, which states that if an office-holder is âemployed on the part of the United States, he is an officer of the United States.â +
++It also includes an opinion by Henry Stanbery, who served as US attorney general while the 14th Amendment was in the process of ratification, which said that the term âofficers of the United Statesâ includes any âperson who has at any time prior to the rebellion held any office, civil or military, under the United States, and has taken an official oath to support the Constitution of the United States.â +
++So the bulk of the evidence supports the unremarkable proposition that the highest-ranking official in the United States government is, indeed, an officer of the United States. And itâs hard to imagine any judge signing onto Trumpâs argument in a case that didnât involve the same brain-scramblingly high political stakes as Trump v. Anderson. Trumpâs lawyers claim that the framers of the 14th Amendment intended to ban former officials who engage in insurrection from holding office, unless they held the most powerful office in the United States government. +
++Indeed, their argument is even more absurd than that. As the Anderson plaintiffs note in their brief, Trump is proposing a âTrump-only exceptionâ to the 14th Amendment because he is the only president (aside from George Washington) who never served in a sub-presidential office. Everyone agrees that former senators (like Presidents Biden and Obama), former governors (like President George W. Bush), and the like are disqualified if they engage in insurrection. So Trump is claiming that he and he alone among former presidents is immune from the 14th Amendment. +
++Itâs clear that Trumpâs lawyers think this is their strongest argument. Trumpâs brief spends about 26 pages laying out its case for leaving Trump on the ballot. Half of those pages are devoted to the claim that the president is not an officer of the United States. +
++Trumpâs lead attorney is Jonathan Mitchell, a lawyer who specializes in trying to convince judges to give legal texts the same sort of malicious construction that âThe Monkeyâs Pawâ gives to wishes. Mitchell is best known as the mastermind behind Texasâs SB 8, an anti-abortion law enacted while Roe v. Wade was still in effect, which allows private bounty hunters â and only private bounty hunters â to collect limitless bounties from abortion providers. +
++The law was written that way because the Supreme Court has held that plaintiffs alleging that a state law violates the Constitution should sue the state official charged with enforcing that law, and Mitchell reasoned that, if state employees did not enforce the law, it could not be blocked. +
++The Supreme Court backed this play in its 5-4 decision in Whole Womanâs Health v. Jackson (2021). So the fact that Mitchellâs primary argument in support of Trump would lead to an absurd result is no guarantee that it wonât prevail. This Supreme Court has already shown that it is willing to endorse truly preposterous arguments raised by the very same lawyer Trump hired to represent him, at least when those preposterous arguments align with the justicesâ personal preferences. +
++Trump asks the justices to revive the most dangerous legal argument the Court has heard recently +
++Last June, the justices decided a case that filled even many sober-minded conservatives with a sense of dread: Moore v Harper (2023), the case that led one of the Federalist Societyâs top leaders to warn that the Republican Party was pushing an argument that âflout[s] core tenets of the American Founding.â +
++Moore turned on a pair of constitutional provisions that say the method each state uses to elect federal office-holders shall be determined by the âlegislatureâ of that state. +
++The Supreme Court first held in Davis v. Hildebrant (1916) that the word âlegislature,â when used in this context, refers to whatever body within a state has the power to make laws. So a state governor may veto an election-related bill, even though governors are typically members of a stateâs executive branch and not its legislative branch. Similarly, a state may use ballot initiatives or other forms of direct democracy to enact election laws, even though most people who vote for such initiatives are not members of the stateâs elected legislature. +
++Davis has been reaffirmed by the Court many times over the course of the last century. Nevertheless, the independent state legislature doctrine claims that these decisions were wrong, and only a stateâs elected legislative branch may decide how a state conducts federal elections. +
++If taken seriously, this theory is an existential threat to US democracy. Under the strongest version, state governors cannot veto laws impacting federal elections, state courts cannot strike down those laws if they violate the state constitution, and state constitutional provisions protecting voting rights effectively cease to function. It could have allowed gerrymandered state legislatures to cancel the 2024 presidential election and simply award their stateâs electoral votes to Trump. +
++The good news is that none of this parade of horribles is likely to happen. Though five of the Courtâs six Republican appointees had, at some point in the past, endorsed various versions of the doctrine, the Courtâs opinion in Moore largely shut it down. +
++That said, Moore included an ominous line suggesting the Supreme Court could revive the doctrine if five justices think that a state court read that stateâs own law very badly. âState courts,â according to Moore, âmay not so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures.â +
++Itâs not at all clear what this line means or just how badly a state court must depart from the federal justicesâ preferred reading of a state statute. But Trumpâs brief claims that Anderson is such a case. +
++Specifically, Mitchell points to a provision of Colorado law that says âeach political party that has a qualified candidate entitled to participate in the presidential primary election pursuant to this section is entitled to participate in the Colorado presidential primary election,â and he accuses the state Supreme Court of misreading this provision to exclude presidential aspirants who arenât âqualified candidates.â +
++Itâs fair to say that this provision has more to say about which parties can participate in a presidential election than it does about which individuals may do so â although the reference to âa qualified candidateâ does imply that some candidates do not qualify. +
++But even if you accept Mitchellâs reading of this provision, a different provision of Colorado law says that the stateâs law governing presidential primaries should âconform to the requirements of federal lawâ â and Section 3 of the 14th Amendment, like all provisions of the Constitution, is a federal law. So, at most, the state Supreme Court is guilty of citing the wrong provision of state law to support the proposition that constitutionally ineligible candidates may not appear on a presidential primary ballot. +
++It would be extraordinary if the Supreme Court ruled that this alleged, penny-ante citation error so âexceed[s] the bounds of ordinary judicial reviewâ as to justify invoking the independent state legislature doctrine â a doctrine the Supreme Court has rejected many times over the course of a century and that it recently rejected after an array of retired generals and admirals warned the justices that it threatens national security. +
++And what would the US Supreme Court hope to accomplish by such a decision? If the justices rule that the Colorado decision must be tossed out because of a minor error in the courtâs construction of state law, that would do nothing to resolve the broader question of whether Trump is disqualified under the 14th Amendment. +
++The Court, in other words, would deploy one of the most dangerous weapons in its doctrinal arsenal in order to delay resolution of this case by maybe a few weeks. +
++Trump makes the weakest version of his best argument +
++As noted above, Trumpâs brief does not even raise his strongest argument: the argument that Coloradoâs courts failed to provide him with due process. +
++That said, the brief does make one argument that is, at least, plausible. But Mitchell devotes only about two pages to his best argument, and he makes a weak version of this argument to boot. +
++The Colorado Supreme Court concluded that Trump engaged in an insurrection when he made a series of public statements that incited his supporters to attack the Capitol, including a January 6 speech where, in the state Supreme Courtâs words, Trump âliterally exhorted his supporters to fight at the Capitol.â +
++Among other things, Trump told his supporters that âweâre going to walk down to the Capitolâ where they âhave to show strengthâ and âfight like hell.â +
++Mitchell argues that the First Amendment does not permit Trump to be sanctioned for these and other, similar statements. The reason why this is a relatively strong argument, at least compared to the other arguments in Trumpâs brief, is that, while the Supreme Court has held that speech that incites people to illegal action is not protected by the Constitution, the legal standard for what constitutes âincitementâ is very hard to clear. +
++The seminal case is Brandenburg v. Ohio (1969), which held that the government may not âforbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.â And it is notoriously difficult for the government to meet this test. +
++Brandenburg involved a speech at a Ku Klux Klan rally, attended by â12 hooded figures, some of whom carried firearms,â where a speaker said that âif our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, itâs possible that there might have to be some revengeance taken.â Yet, even though this speech advocated violence against the highest US officials, the Court tossed out the law used to prosecute this speaker, holding that a state cannot punish âmere advocacyâ of violence, but only âimminent lawless action.â +
++Trumpâs speech, however, was quite different from the Klansmanâs speech in Brandenburg. For starters, while the Brandenburg speech took place at a farm in Ohio â far away from the president, Congress, or the Supreme Court â Trump delivered his speech to a crowd of angry supporters as they gathered to march on the Capitol itself. +
++There were also strong indications that many members of this crowd understood Trumpâs speech to be a direct call for an immediate insurrection. According to the Colorado Supreme Court, âafter President Trump instructed his supporters to march to the Capitol, members of the crowd shouted, â[S]torm the capitol!â; â[I]nvade the Capitol Building!â; and â[T]ake the Capitol!ââ +
++And, of course, Trumpâs speech was, in fact, followed by a mob of his supporters â many of whom had just listened to his speech â invading the Capitol in an attempt to overthrow the election that Trump had just lost. +
++Mitchellâs discussion of Brandenburg is brief and difficult to parse, but he appears to argue that Trumpâs speech was not âlikelyâ to result in violence. As Mitchell correctly notes, Trumpâs speech is unprotected by the First Amendment only if it was ââintendedâ and âlikelyââ to incite imminent violence,â and he notes that a speech cannot lose First Amendment protections solely based on âthe intent of the speaker.â So, read together, these two claims suggest that Mitchell thinks Trumpâs statements were not likely to result in violent or lawless action. +
++But this argument is difficult to take seriously. As the Colorado Supreme Court explains, Trumpâs January 6 speech was only one in a series of statements where Trump seemed to encourage violence or where Trump cheered on his supporters after they committed violence on his behalf. +
++Georgia election official Gabriel Sterling, for example, publicly warned Trump âto âstop inspiring people to commit potential acts of violenceâ or â[s]omeoneâs going to get killed,ââ but Trump responded by âretweeting a video of Sterlingâs press conference with a message repeating the very rhetoric that Sterling warned would result in violence.â Similarly, after a November 14, 2020, pro-Trump rally turned violent, Trump responded by justifying this violence âas self-defense against âANTIFA SCUM.ââ +
++The single most damning piece of evidence against Trump, meanwhile, is that one hour after Trump learned that a mob of his supporters had attacked the Capitol, the former president tweeted that âMike Pence didnât have the courage to do what should have been done to protect our Country and our Constitution.â So, at the very moment that the January 6 insurrection was underway, Trump didnât just egg on the insurrectionists, he suggested that they target Pence. +
++While Brandenburg sets a high standard for incitement, Trumpâs lawyers do not make any arguments that could justify tossing this case out on First Amendment grounds. Most statements that advocate violence are not likely to result in imminent violence. But Trump told a mob made up of his supporters to target a specific individual as that mob was actively engaged in criminally violent activity. +
++This is the equivalent of standing on the sidelines of a fistfight and yelling at one of the combatants to âbeat him harderâ while the fight is ongoing â and the law generally permits someone who actively cheers on an ongoing fight to face legal consequences. +
++Trump v. Anderson is a frustrating case. Itâs hard to imagine this Supreme Court removing Trump from the ballot. But Trump and his lawyers give the justices very little to rely on when they sit down to write an opinion ruling in favor of Trump. Mitchellâs arguments range from silly (the president is not an âofficer of the United Statesâ) to unpersuasive (Trumpâs many statements encouraging violence were not likely to result in violence) to outright dangerous (the entire independent state legislature doctrine). +
++If thatâs the best that Trumpâs supporters can come up with, it will be very difficult for the justices to show their partisan loyalty without embarrassing themselves. +