Reading the news every day, I’m regularly astounded by people and organizations declaring themselves “gravely concerned” (or just “concerned”) over some governmental action such as the manhandling and detention of New York City Comptroller Brad Lander or the similar videos of the detention of California Senator Padilla. Has the general American population not yet noticed that there is no government? It’s a little late to be concerned.
The American people voted democratically to replace a constitutionally defined democratic government by a business. That possibility was always the Achilles heal of the whole idea of a government by the people. A democracy has a built-in self-destruct mechanism. Actually, this government, which was constitutionally structured around the idea of law (Congress makes laws, the judiciary interprets them, and the Executive branch acts on them), essentially became dysfunctional before its formal demise. Democratic law grows out of open discussion, or, rather, out of the belief in the social and political benefit of open discussion both in and out of the Capitol. That belief fell into general decline – we all saw it happening on the internet – when name-calling and dismissive attacks became the normal mode of discourse, and discussion was memified.
The perception that democratic law making (Congress) is entirely dependent on the liberal belief in rational discussion comes from Carl Schmitt’s 1923 description of the Weimar government in Germany, The Crisis of Parliamentary Democracy. Schmitt was law professor, attorney for the state, the leading jurist defending the legality of the Nazi take-over of Germany, and a political theorist whose analysis of the failings of the liberal idea of government has guided the creations of dictatorial authoritarian governments ever since, including the present American variety, guided as well the left-wing critique of liberal political theory.
Schmitt’s most famous saying is probably the opening sentence of his 1921 Political Theology: “Sovereign is he who decides on the exceptional case” (Soveraen ist, wer ueber den Ausnahmezustand entscheidet). The translation is wobbly (the original is ambiguous), but the sentence has a strong leaning towards meaning that real sovereignty is demonstrated by the power to decide on an exception to the law, a suspension of constitutional law. This is precisely what happened to allow Hitler to create laws by decree (think Presidential Orders and Proclamations) during an emergency (after the German parliament building burned down) and then force the passage in 1933 of the Enabling Act which allowed Hitler and his cabinet to rule Germany until its capitulation to the Allies in 1945 without legislative or judicial interference as an exception to law. For 12 years, Hitler and his cabinet, but not the rest of Germany, were above the legal framework of the German constitution because of a decree of exceptionalism.
Those who have followed the arguments about immigration in the US over the past decades can see this country going towards a declaration of exception. For decades the media has used words like “crisis” to describe what, in fact, was a natural migratory situation bolstered by innumerable economic, political, and climatic factors. Then, our President started using the term “invasion” to describe migration. This war metaphor was available to him because of our earlier transformation of a figure of speech (war on cancer, etc.) to a more vaguely literal usage in the “war on terror.” Trump seized on this opportunity to move the discussion of immigration towards exceptionalism, and he is today treating immigration quite literally as war (as per Secretary Noem on LA).
The stand-off between the President’s cabinet and the federal courts over illegal deportation should be seen as an assertion of Schmitt’s definition of sovereignty, including the Administration’s invocation of the Alien Enemy’s Act, which echoes Schmitt’s 1932 Concept of the Political, where the political is based on the distinction between friend and foe. The political, says Schmitt, is war, identifying the enemy, which is not a person you dislike, not a person you hate, but just your enemy. It is the creation of an us/them boundary, the expression of exclusivity. It is the coordination of equals as equals and the debasement of the unequals as inferiors. This idea of the political is behind the Administration’s erasure of and attack on diversity, equity, and inclusion. It drives the attempt to fire the whole bureaucracy and replace it with political friends. It is the logic of @realDonaldTrump’s designation of the Democratic Party as fake Americans. Secretary Noem called LA demonstrators “Socialists,” assuming, I suppose, that demonstrators had to be Democrats, and Senator Mike Lee called the assassinated Democratic lawmakers in Minnesota “Marxists,” as if the Secretary and the Senator thought they were back in 1920s Berlin, where indeed the Nazis targeted Social Democrats and Communists.
We live now in a state of exception, supported by a Supreme Court which granted our President immunity from law. So much for those Trumpian supporters who thought themselves defenders of the Constitution or for those who believed in law and order. Congress seems happy to conform to its powerlessness. The judiciary still has not given up its ideas of justice or law, but soon, after the new budget bill is passed, it will be powerless to persist. We are getting our Enabling Act in bits and pieces.
America’s turn toward Schmitt’s view is somewhat ironic. In American history, the term “exception” has normally referred to the idea that as a liberal democracy America was an exception, a standout and standalone, among nations. America’s form of government was a beacon to the world and justified its position as world leader. America was “chosen,” as it were, to evangelize and spread the word of freedom and liberty. Much of the social support of the new, Schmittian exceptionalism, is based in the popular mythology of this nationalistic exceptionalism (MAGA), yet the new exceptionalism is very precisely a deliberate destruction of that liberal ideal, replacing the liberal democracy with the form of government Schmitt called a state of exception, a dictatorship. Forget about the next election; remember that January 6 is now extolled, and alternate state electors are a dime a dozen.
Yet, as with everything that this Administration does, it is incompetent at following Schmitt’s analyses as a blueprint. Thus, even as it asserts sovereignty by constantly breaking the law, our President is forever on Truth Social, propagandizing, as if he is unsure of his sovereignty, always seeking approval and support. Sovereignty, according to Schmitt, is a decision, and he uses the word for a judicial, court decision (entscheidet). That kind of examination in determining exceptions, which Schmitt characterized as a boundary problem (what is normal and what is exceptional) is not itself a matter of law but of judgment. The Administrations seems to lack people who can make that decision, and so instead of the exercise of sovereignty, we witness daily the chaos perpetrated by unthinking people acting arbitrarily, using force and violence: not exercising sovereign rule but mimicking it. This situation should be more than “concerning.”