Invoking the major questions doctrine is the wrong way to enforce nondelegation concerns.
Thirty years on from the ill-fated student protests for greater democratic participation and government accountability in Tiananmen Square, it is appropriate to sound the alarm about China’s foreseeable future, as the serious tensions there will be difficult to reconcile peaceably. Teng Biao is right that without the tightening of authoritarian rule, there would have been no Chinese economic miracle. The picture is even bleaker, however, because not only is the tradeoff substantial, but the payoff is not as great as it seems.
First, the cost of this economic prosperity in human rights, basic civil liberties and protections, and the rule of law is enormous, as Teng Biao notes in his Liberty Forum essay. More disturbingly, much of that cost is being paid voluntarily, as the Chinese Communist Party has grown very clever in how it combines its use of the stick and the carrot.
The gulags are still alive and well in the form of political imprisonment and “reeducation” camps, and China has dramatically increased its recent spending on internal security, which includes not just combating terrorism but also spying on journalists and dissidents and censoring online communications, such that every year in this decade, it has spent more on domestic “stability maintenance” than on the military. (Domestic security budgets for the legislature, the National People’s Congress, have since 2013 excluded spending by provincial and regional governments—the effect of which is a likely underreporting of total spending by at least 75 percent.)
At the same time, much of the population also gladly participates in its own oppression. Chinese self-censor and comply with all sorts of restrictions as they chase after the higher scores and accompanying prizes of the new social credit system.
One might argue that this is just a stage of development—that, after solidifying their economic gains, the growing middle class will eventually clamor for liberties and protections such as property rights and the rule of law, thus forcing party higher-ups to yield to growing democratic aspirations. This developmental notion is attractive but grossly incomplete. While economic advances play a role, the transformation of potentially comparable countries such as Taiwan and South Korea were driven by a number of other factors, including geopolitical pressures, idiosyncratic leadership (for example, Taiwan’s President Lee Teng-hui), and religious influences (such as Methodism and Presbyterianism in South Korea), and there is no sign that China’s middle class will propel this liberalizing metamorphosis. The CCP intends this trade-off to be permanent, and the population understands this.
The Price of Progress
Perhaps it is a small price to pay for the massive enrichment of ordinary Chinese people since the late 1980s, which has yielded unquestionable improvements in well-being. One should not read too much into this economic miracle, however. After the upheavals and persecutions of the Great Leap Forward and the Cultural Revolution, the country’s economy started from an extremely low base, to say the least, which helped make such rapid growth possible. Not to mention that the growth numbers themselves are suspect, and often invented.
This is not to say that the economic miracle is not real. Millions of ordinary people have been lifted out of poverty, which has conferred tangible benefits in the form of extended life expectancy, expanded education, and improved quality of life for many Chinese—but the “miracle” and China’s status must be put into the proper context.
The biggest factor in China’s present position as an economic powerhouse is its sheer size. Its overall GDP is about the same as that of the Eurozone, but that is achieved with four times the population. Much of China’s newly acquired status as a global economic and military superpower is an inadvertent projection of what it might become, say, 50 years from now if it sustained its astounding rate of growth (averaging 9.63 percent per year from 1989 through 2017). That is scarcely possible, however. And even if it were, China cannot maintain this pace much longer; in fact, as Teng Biao noted, its growth rate has already slowed in recent years. As the economy’s structure changes, as all the easy gains are achieved, its capacity for astounding expansion diminishes. The hard work on China’s economy still remains, and the reality is that the verdict on whether the “Beijing model” can deliver is still a long way away.
What Should the International Community Do?
Given the bleak outlook on China’s present and future, what should be done about this massive human rights debacle? As Teng Biao warns, opportunities for meaningful resistance are rapidly fading. To add to our pessimism, the reality of human history says that successful reforming forces must and should come primarily from within. External shocks such as a sharp global economic downtown or losing an unintended war can spur domestic agitation or revolution, but there are severe limits to what the outside world can do.
This does not, however, necessitate accepting as fact China’s regional dominance, future superpower status, or domestic oppression. First, we should first recognize the nature of China and the CCP: not only the economic reality on the ground but all the state oppression that goes into making the Chinese market so attractive to foreign companies desperate to tap into it. We should also recognize the extent to which the CCP’s foreign policy is driven by domestic developments—not by concern for its people, but rather by the internal stability required to maintain its monopoly on power. Chinese rulers’ freedom from the constraints of political accountability (having to please voters) is not a stage in a theory of liberalizing development; it is meant to be a permanent condition.
Second, all liberal democratic societies (or aspiring ones) should prioritize a foreign policy that is consistent with their domestic values. As I have observed elsewhere, values and principles, including self-interest, do not end at one’s border, and acquiescing to another country’s internal oppression damages one’s own domestic interests.
International accommodation of the CCP is driven by the geopolitical goal of taming a potential adversary and preventing war as much as by the desire to access China’s market and resources. But accommodation will not incentivize the CCP to cooperate. In fact, maintaining the status quo or offering concessions—for example some kind of “grand bargain” involving Taiwan—do the opposite. When the international community sacrifices its own values for the sake of regional and international stability and economic growth, it only tells the CCP that it need not cooperate or reform, as it already gets what it wants by pursuing its current course.
Even as countries prioritize their own self-interest, they must still distinguish between more or less trustworthy partners, between short-term coalitions of convenience and long-term alliances of like-mindedness. In this area, a country’s domestic values and practices are the most telling. While scruples may seem superfluous, even a handicap, in the anarchic world of geopolitics, shared values are not in fact an ethical luxury. Shared values are strategically prudent because there are necessarily few guarantees of reliability in the international realm, and grave dangers in failing to judge one’s partners accurately.
This means calibrating one’s foreign policy to assist the liberal democracies in China’s vicinity—South Korea, Japan, and also Taiwan, which is an existing model of the kind of Confucian democracy that people hope China might one day become. Promoting one’s values abroad is not required in a Westphalian-based system of sovereign states, but the strength of a country’s domestic principles is called into question when they are blatantly disregarded by the same country in its foreign policy. It is the burden of universalistic theories and those aspiring to them to be held to a higher standard.
Disturbing the “Harmony”
The Chinese leadership has described its domestic and foreign policies as driving toward a “harmonious society,” but the CCP’s appropriation of the traditional Confucian concept of harmony has been used in large part to justify domestic oppression in the name of “stability.”
If reform and/or revolution must come primarily from within China, then the greatest barrier is the censorship and brainwashing that is occurring inside the country itself. Given how open the Chinese society and economy seem, the relative ease with which foreigners can travel to China now, and the enormous numbers of Chinese students studying overseas, the isolation of the average Chinese person is usually underestimated. We are biased by what we see, and do not realize the extent to which most Chinese are restricted in both overseas and even domestic travel, and in accessing information that we take for granted.
One can, for example, help the Chinese in China acquire more information about both the outside world and their own regime with public and private ventures to make cheap and effective VPNs available, to better evade censors and firewalls. If this is the only life and societal system you know, it can be difficult to realize that there is something wrong with it. And even then, it is hard to imagine what the alternatives might be without any examples. Without any idea of genuine possibility, few people will act.
One can also plant the seeds of Chinese reform in one’s own country. Large numbers of Chinese students, businessmen, and tourists come to freer societies for good reasons—among them more reputable educational credentials, more predictable governance, better private property protections and contract enforcement, and rule of law—and we should not squander these advantages.
Chinese students now study abroad in large numbers but tend to congregate with each other, reproduce the social system they had at home, and otherwise isolate themselves from their non-Chinese peers. There is little that an educational institution can or should do if these young men and women choose to use their time this way and, consistent with genuine security concerns, research universities should continue to educate post-graduate students across national boundaries, as their mission in particular is greater than those students themselves.
But what all educational institutions (public and private) should do is remove any official endorsement of foreign student isolation, starting with the Confucius Institutes. The increasing concerns about Chinese spying on the host country via staff and visitors at the Confucius Institutes (even when many of the staff are local citizens or full-time staff of the host university) are legitimate. Legitimate, too, are the questions being raised about the content of the institutes’ cultural and historical teachings, and their institutional practices denying freedom of religion and conscience—a message that contradicts the principles and values of the host countries and host schools.
What is largely overlooked but should also be of great concern is the use of these Confucius Institutes to surveil Chinese citizens who have gone abroad. To be clear, the CCP does not need the Confucius Institutes to do this—there is and will continue to be surveillance regardless, including by students themselves on each other. But liberal democracies should not make it easy for the CCP to oppress Chinese on their own territories. They should not be complicit by legitimating the operation of such organizations. After all, overseas Chinese are not unaware of the contrast between their governmental system back home and that of the one they work or study in, even if they are critical of the latter. To see self-professed liberal democracies permitting a blatant and pernicious arm of the Chinese state can only strike them as sheer hypocrisy, suggesting that liberal democracies are no better, or are even autocracies in disguise.
These institutes should be shut down, and ensuing gaps in Chinese language training and cultural education filled by other organizations. China is not the only source of Chinese culture and language, and nowadays not even the best source. For better sources, one need only look across the strait.
Also of value would be more overseas professional education for Chinese in key positions—genuine training, not the credentialing mills that only give Chinese officials more legitimacy to continue doing their dirty work once they return home. Essential areas that would have the greatest impact on the rule of law and humanitarian improvements should be targeted, such as the training of judges.
Foreign influence on judges in China has already made a difference, in fact. The last two decades have seen a dramatic drop—from about 15,000 to about 3,000—in the number of death sentences carried out annually. The decrease has mostly been due to the efforts of a small number of judges driven by the desire to be more professional and to modernize in light of international ethical standards. This is an issue that Teng Biao has worked on and, while the death penalty will not be abolished in China any time soon, these small, incremental procedural reforms have saved perhaps hundreds of thousands of lives thus far.
Programs like the American Bar Association’s Rule of Law Initiative and the Representation Project, which help train Chinese legal professionals to improve quality and adherence to international standards, could be enhanced in other areas, such as police forces. Granted, the concern there is to provide instruction that makes trainees better and more consistent enforcers of just laws, rather than better oppressors through the use of law. But if carefully done, such programs can have long-term effects that will be calculated most importantly in the number of individual lives saved.
While the outlook might be grim, it is not hopeless—either for ordinary Chinese or for others interested in China for principled or selfish reasons. But everyone must understand the reality of the situation, work on what realistically can and should be done, and tread carefully.
 The word “harmony” is now subtly deployed by dissidents to refer to censorship. And because, in Mandarin Chinese, the word for “river crab” is a near homophone for “harmony,” it is common to describe someone who has been censored on line as having been “harmonized” or “river crabbed.”
 See for example, “Formed in Formosa: China Worries about How Study in Taiwan Might Affect Its Students,” The Economist, May 9, 2019.
 The similarly state-run Chinese Cultural Centres are also a concern.
 See, for example, Rachelle Peterson, “Outsourced to China: Confucius Institutes and Soft Power in American Higher Education,” newsletter of the National Association of Scholars, June 2017; Elizabeth Redden, “Closing Confucius Institutes,” Inside Higher Ed, January 9, 2019; U.S. Senate Permanent Subcommittee on Investigations, Committee on Homeland Security and Governmental Affairs, “China’s Impact on the U.S. Education System” (staff report), February 27, 2019; Elizabeth Redden, “Who Controls Confucius Institutes?,” Inside Higher Ed, February 28, 2019.
 For example, “Culture Wars: The Communist Party Capitalises on Foreign Interest in Chinese Culture,” The Economist, Feb 7, 2019.
 “Strike Less Hard: The Death Penalty,” The Economist, August 3, 2013.