Mussolini’s party headquarters in Rome. Palazzo Braschi, 1934.
The So-Called Judges: “Please State the Nature of the Emergency”
In this post, I return us to the scene of the POTUS’s “travel ban” Executive Order. I know. As I write this only a couple of weeks later, it already seems like a lifetime ago when we all watched the unfolding horror of hundreds of travelers disrupted or detained, thousands of visas cancelled, and perhaps hundreds of thousands beset by anguish, alarm, and worry. If we include the jolt that went through the general community of green card holders and permanent residents and their loved ones, the number goes to millions; If you also include decent Americans who believe everyone should be treated with dignity, perhaps none more so than the weak and vulnerable, then tens of millions were affected. No wonder street-level protesters were mobbing the nation’s airports.
Despite the great sigh of (temporary) relief at the Ninth Circuit’s refusal to lift the Temporary Restraining Order (TRO), it’s very important to pause for a moment to review some of the arguments made by the Government before the appellate court. It is my contention that this first engagement was, in the language of fencing, actually a feint. By looking carefully at this first engagement, it is possible to discern the riposte that I believe is likely to follow.
Evidence of Harm and Standing to Sue
In the opening to the decision, the court lays out its jurisdiction, saying that where TROs have the character of a temporary injunction, as is the case with the District Court’s TRO in favor of the State of Washington, the appellate court can review the lower court’s decision. In the case at hand, they say that they have jurisdictional authority to issue a stay on behalf of the Government, or not, if the Government’s case is not likely to succeed, or doesn’t indicate a compelling public interest. They also rule on the Government’s argument that the stay should be granted because the states (Minnesota joined Washington) have no standing to sue the Government, because the individuals affected by the Executive Order have no rights under the due process clause of the Fifth Amendment to the US Constitution. With respect to the issue of standing, the circuit court’s decision insists that the states, in describing specific harms to students, faculty, and visiting research scholars of the state Universities they operate describe harms traceable to the Executive Order, and so have in fact made a sufficient showing to support standing to sue the Government. The laundry list of harms included denial of reentry to lawful permanent residents and non-immigrant visa holders without notice or opportunity to respond, denial of similar people’s right to travel abroad and then reenter, and contravening the procedures provided by Federal statutes for refugees seeking asylum.
With respect to the Government’s opposing claim to harm, the court writes, “despite repeated invitations to explain the urgent need for the Executive Order to be placed into immediate effect, the Government has submitted no evidence.” Instead of explaining the nature of the immigration emergency that would counter-balance the obvious harms to the citizens of the states affected, the Government instead takes the position that the Executive Order is not reviewable by the court.
Invocation of the Unreviewability of Executive Orders
It is useful to stop for a moment to reflect on what is transpiring here. The District Court issued a TRO stopping the Executive Order from going into immediate effect, based on the evident harms that were occurring to residents of the state of Washington. The Executive Branch then goes before the higher Appeals Court, to argue that the court should grant an emergency stay of the TRO pending the Government’s appeal, because the Executive Branch says that the present unexplained state of emergency, and the President’s authority to make this determination, is itself tantamount to establishing that there is a compelling public interest that obviates all other considerations in legal review. In short, the Government went before the Court of Appeals in order to argue that the stay should be granted because neither the District Court nor the Court of Appeals have any authority to review the President’s Executive Order.
What then can we learn from the administration’s arguments? First, that the President, less than a month into his presidency, has insisted that the only thing that matters in reviewing executive action, is that the President has the authority to take the given action.
In response to these arguments, the Court of Appeals first acknowledges that while it is an uncontroversial principle of our jurisprudence that the courts owe substantial deference to the immigration and national security policy determinations of the political branches, the Government is here arguing something that goes far beyond this: “the Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections.” The court’s response to this bizarre request that the court, which apparently has no authority, should decide to stay the lower courts TRO pending an appeal, is unequivocal: “There is no precedent to support this claimed unreviewability, which runs counter to the fundamental structure of our constitutional democracy…the political branches lack the power to switch the Constitution on and off at will.”
Since the Court’s view is that the Government has not shown that the Executive Order provides “what the Due Process Clause of the Fifth Amendment requires” — the procedural Constitutional protections are not limited to citizens, and they apply even to aliens in the US unlawfully — it is likely that the Government’s appeal will be unsuccessful, the Court writes, because it contains elements that are likely to be found unconstitutional. Further, along with the equal protection clause, the State of Washington is also arguing that the Executive Order violates the First Amendment’s Establishment Clause, since there is ample evidence that it was intended to disfavor Muslims.
In other words, the Court of Appeals recognizes and anticipates that on appeal, the constitutionality of the Executive Order will be reviewed. Within our system, the court writes, “it is the role of the judiciary to interpret the law, a duty that will sometimes require the resolution of litigation challenging the constitutional authority of one of the three branches…neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action.” In fact, the Supreme Court has repeatedly and explicitly rejected the notion that the political branches authority over immigration, or national defense are unreviewable. It’s the job of the courts to “preserve unimpaired the constitutional safeguards of civil liberty…in war and in peace, in all circumstances.” The fact that a statute deals with foreign relations does not grant the executive totally unrestricted freedom of choice. It is beyond question, the judges write, that the judiciary retains the authority to adjudicate Constitutional challenges to executive action.”
State of Emergency and Executive Decision
What then can we learn from the administration’s arguments in favor of a stay of the temporary restraining order? First, that the President, less than a month into his presidency, has insisted through his attorney that the only thing that matters, in reviewing executive action, is that the President has the authority to take the given action. The only thing that matters, is the legality of the action, without regard to its rightness, as determined by a review of whether it accords with the values, norms, and rules found within the US Constitution. This is what explains the strange contortionism of arguing for a ruling before a court the authority of which you do not recognize for reviewing the action. The country, the President has decided, is in a state of emergency. This emergency has to do with our immigration laws, norms, procedures, and rules. What is the nature of the emergency? The emergency is that America has ceased to be great, and we must make it great again. The President’s decision is validated by the election results (Americans agree with his decision). As the President’s Senior Advisor Stephen Miller spat out just this week, on Face the Nation, his face contorted into a Nazi sneer right out of a Hollywood movie, “…our opponents, the media and the whole world will soon see as we begin to take further actions, that the powers of the president to protect our country are very substantial and will not be questioned.”
Perhaps the notion of executive rule by exception under conditions of national emergency has begun to ring a few bells. Surely, you might think, we can’t mean that the American Presidency, under conditions of strong unitary executive theory, is coextensive with European fascism.
Strong Unitary Executive Power on Steroids
Before turning to a discussion of the underlying political theory animating the new Trump administration, it’s important to point out that the strange scene we are witnessing, where the judicial branch and the executive branch mutually accuse one another of violating separation of powers, actually has its basis in a long simmering constitutional law dispute that has reached a rolling boil since the Presidency of George W. Bush. Article II of the Constitution vests executive power in the President of the United States; but there have been both weaker and stronger intonations of what that “unitary power” over executive functions and agencies and officials ought to mean. In his book, Broken Government, Howard Dean writes, “In its most extreme form, unitary executive theory can mean that neither Congress nor the Federal courts can tell the President what to do and how to do it, particularly regarding national security matters.” As Arthur Versluis has written, the Bush Administration’s invasion and occupation of Iraq took place without Congressional authorization and the imprimatur of the UN, in violation of US and international law; as such it was essentially conducted under the invocation of strong unitary executive power. The same can be said for the Bush Administration’s selective abrogation of the Geneva Conventions (Abu Ghraib, Guantanamo) as well as the abrogation of FISA in the mid-2000s. Both Bush and Obama inherently asserted unitary executive power by the use of signing statements to over-ride legal provisions with which they did not agree.
In general, until now, the Constitutional argument about strong unitary executive power has revolved around competing versions of the overlap between Congress and the President. To the extent that the Judiciary has been implicated in the matter, the discussion has tended to revolve around whether, under the weak interpretation, parts of the Executive Branch might sue other parts. This all brings us back to the travel ban and the Ninth Circuit, where Trump has invoked strong unitary executive power over and against the courts where it pertains to matters of constitutionality like the abrogation of civil liberties. Three weeks into the Trump administration, we see strong unitary executive power on steroids.
From Unitary Executive Power to Political Decisionism
Perhaps the notion of executive rule by exception under conditions of national emergency has begun to ring a few bells. Surely, you might nonetheless think, we can’t mean to say that the American Presidency, under conditions of strong unitary executive theory, is coextensive with European fascism in the first half of the twentieth century. After all, the USA is a constitutional democracy, a nation of laws, and no one, not even the President is above the law. Our positive laws (the legal code) refer to the Constitution, and the Constitution is reflective of our universalist moral values and social and political norms. Further, our Constitution, as an artifact of the Enlightenment, relies upon popular sovereignty and the social contract. In the seventy years since the defeat of European fascism, we have become accustomed to the assumption that social contractarian theories, or their contemporary derivatives (e.g., Rawls, Dworkin, Habermas) are the only game in town, where it comes to explaining sovereignty and the foundation of law and the exercise of state power and authority. Democracy has its problems, we say; it’s messy. It has become so bureaucratic and filtered, that it is difficult to discern the ‘will of the people’ in its products. It is the captive of special interests. Political parties have lost most of their function as a point of orientation for their members. We find it hard to believe that we have leaders that can manage the complex decisions, the plurality of values and interests (ever more differentiated) that have to be taken into account in order to believe that the “will of all” is somehow being fashioned into a “general will.”
As Muller writes, “The nature of state power is revealed most clearly in the state of emergency…here decision and norm diverge, and authority proves that it need not have a basis in law in order to dispense justice.”
As Claus Offe saw already in the 90s, in Modernity and the State, “modern societies are condemned to rely solely on the will of the people as it ensues from equal and free rights of participation when it comes to…the final agency of and impetus for, collectively binding decisions…but the will of the people exhibits three problematic features: it is fictitious, fallible, and seducible.” All these things taken together, Offe concludes, “improves the chances of those on the political market who use populist ‘direct sales’ by appealing to innate resentment or the individual’s instinct for greater wealth.” For Claus Offe then, the challenges of representative democracy just sketched are to be taken as part of the human condition, where human being is understood to be “homo democraticus.” The problem was one of managing these unfortunate trends, or recognizing that they did not amount to a totalizing critique, and that anyway, there really aren’t any viable alternatives to the will of the people. If it was the case that the state, under these conditions amounted to nothing more than an aggregate of compromises between heterogenous groups, the sum total of their agreements, then surely people should recognize that this still must be the best possible world, all other things considered. The trick must simply be to find ways to renew the spirit of our patriotism, so that our institutions might be reflective of a unity found through shared commitment to democratic values, rather than allowing them to devolve into the ‘pacta sunt servanda’ or the ethic of civil war.
The Political Theory of Carl Schmitt: Sovereign is He Who Decides the Exception
In the 1920s, the German jurist and legal scholar Carl Schmitt became known for criticisms of the Weimar Republic’s parliamentary system in similar terms to those described above. Insisting that the state had become subordinate to the various social and economic associations that made up the contemporary political landscape, Schmitt believed that a decision could not be eluded; as Dominique Leydet describes it, “either the state must collapse, or there must be a re-affirmation of unity through authoritarian presidential rule based on plebiscitary acclamation.” That the German judiciary after WWI was generally attracted to authoritarianism is of course, of no great surprise, since they were the generation of judges that had thrived under Bismarck. For most of this generation, as Ingo Mueller has written in Hitler’s Justice, the constitutional democracy of Weimar was considered illegitimate, a break in the political culture imposed from without by the treaty of Versailles, which in turn had come about because of internal enemies, the so called ‘stab in the back.’
Under the state of exception, the criminal law becomes all about protecting the state from the individual rather than the other way around.
What then, was the nature of the decision to be made, in order to save the State, in its sovereignty, from the polarized pluralism that increasingly besets it during Weimar? In keeping with the general drift of the conservative, militarized political class, the content of the decision, per Schmitt, was the sorting out of “friend or foe.” According to Schmitt’s decisionism, the foundation of law is not to be found in the values and norms from which law derives, the content of the law, if you will; the validity of the law comes from the fact that it reflects the decision of the rightful authority, the Leader, on behalf of the people, in response to the state of emergency. The ultimate authority of government lies not with the constitutional process of making legislation, and not with the law as the ultimate standard to which we must appeal. The ultimate authority of government is found in the executive power to abrogate or suspend the law, to declare a state of exception. Thus, the meaning of Schmitt’s aphorism, “sovereign is he who decides the exception.”
Lest anyone think, even for a minute, that this is all just theoretical stuff, one need only continue to revisit the run up to the Nazi seizure of power with the Reichstag Fire Decree, as does Ingo Mueller. After WWI, writes Mueller, the courts increasingly recognized the distinction between “friend and foe” in legal opinions. It can be seen in the generalized leniency toward the right, and severity toward the left; it can be seen in the disappearance of the notion of the ‘loyal opposition’ which had been a great achievement of the nineteenth century legal system. Most importantly, as should be obvious, it resulted in the decline of the rule of law. Murderers attorneys regularly pleaded for acquittal based on self-defense on behalf of the Government (which couldn’t defend itself because of the treaty of Versailles). The doctrine of defense of the State under conditions of national emergency were to be understood as justification for the defendant’s actions. The German courts regularly accepted the notion that belief in the state of emergency could justify breaking the law.
The apotheosis of all of this, of course, came with Reichstag Fire Decree, which annulled nearly all constitutionally guaranteed basic rights, including freedom of speech and assembly, the right to form organizations, protection from unwarranted search and seizure, privacy rights, etc. With the decree, the National Socialist State exempted itself from any normative constraint based on its claimed right to national self-defense. Under the state of exception, the criminal law becomes all about protecting the state from the individual rather than the other way around. Where previously what was not expressly forbidden was allowed, post decree, what was not expressly allowed was to be taken as forbidden. As Mueller writes, “The nature of state power is revealed most clearly in the state of emergency…here decision and norm diverge, and authority proves that it need not have a basis in law in order to dispense justice.” Schmitt’s aphorism, ‘sovereign is he who decides the exception’ describes how Hitler in fact took power, with the unilateral abrogation of civil liberties in Germany. The doctrine of national emergency came to be used as a justification of everything the National Socialist regime did. As David T. Pan has written, “The very existence of the Jews in German society constituted a state of exception for Hitler because of his conviction that they constituted a basic threat to German national unity. The state of exception was the judicial basis for the Nazi death camps.
The Conceptual Priority of the Decision Over the Norm
In the POTUS’s invocation of unitary executive power to make the case that executive orders in the realm of national security/immigration are unreviewable (because all that matters is whether he does or does not have authority to determine a condition of national emergency) we hear strong echoes of fascist decisionism. Whatever one thinks about the strengths and weaknesses of various legal-philosophical projects to explain our heretofore modern conviction that the laws follow from reflecting shared universal moral values and norms, the project as a whole is reflective of the moral intuition of most people who live in modern societies. The notion that political decision by an authoritarian leader somehow founds an order of being, such that sovereignty somehow coalesces in the leader’s decision as the will of the people, presumably to choose their greatness, finds credibility only where a mythology of the ‘Volk’ as the superior racial-spiritual essence of a nation holds sway. For two hundred and forty years, American popular sovereignty is generally expressed in and through our commitment to the universalist values and norms reflected in the US Constitution, and the Constitution checks the authority of the President who is not above the law.
Earlier in this post, I indicated that to claim that the Executive Order is “unreviewable” before the Appellate Court (from whom you are asking for a stay) is tantamount to denying the authority of the court, and that this bizarre contortion struck me as something of a feint. Nazis don’t generally argue their case before courts (it results in a reductio ad absurdum). Instead, they suspend constitutions by declaring a state of emergency and relocate sovereignty in the Leader’s absolute power of decision. By arguing about it, rather than just doing it, they show themselves to be wavering. Let’s see if they have the balls.
