What Is An Emergency?

On the southern border

Feisal G. Mohamed
A stack of old issues of The Yale Review. Courtesy Pentagram
Courtesy Pentagram

Imagine for a moment that you own property on the U.S. southern border. Alarmed by the prospect of a presidential declaration of national emergency, you consult with an attorney on how you might challenge the federal government’s expropriation of your land. The necessary motions are filed, and you expect to have your day in court, or, more likely, several days in court as the case works its way through trial and appeal. In your private moments of fantasy-cum-nightmare, you imagine that you might be a litigant in a landmark Supreme Court case on the executive’s expansive interpretation of its powers—the current composition of the Court makes you worry that it might go a lot like Korematsu v. United States (1944). Win or lose, you know that the government is fully equipped to implement the decision of the judges.

Everything in this scenario indicates that, by all pertinent legal standards, there is no emergency whatsoever on the southern border. This is obvious. (One suspects that it is obvious even to members of the current administration, even as they contemplate a declaration of emergency.) The scenario I’ve just described depends in several ways on the existence of an intact legal system: a person claiming some form of injury can find a competent attorney who can be relied upon to represent her interests, and can turn to a court system that can be reasonably assumed to follow the law, rather than blindly to acquiesce to political authority. All of this indicates that the border is a space “covered” by the agents, procedures, and letter of the law. It is a space where, in legal terms, a normal situation obtains. The space of emergency, on the other hand, is one where a normal situation does not obtain: no lawyers or judges can be found, or the ones who can be found are thoroughly corrupt; a fair and impartial hearing cannot take place; even if a fair hearing could take place, the decisions of the courts could not be implemented because the government’s agents are inept, overburdened, or absent. Under such conditions one could conceivably argue for the exercise of emergency powers, with the aim of creating the kind of normal situation allowing for rule of law.

But it is still worthwhile to clarify in our own minds just what an emergency is. And to contemplate why deep in the DNA of the republican tradition dictatorial powers are viewed as the natural response to emergency, and to ask whether those genes that evolved in ancient Rome would best be excised in the twenty-first century American republic. In contemplating a state of emergency, the modern context that often comes up is Weimar Germany, which remains the only case in the modern West where a major power devolved from a liberal constitutionalist state into a ruthless authoritarian regime that radically destabilized world order. (I will make clear now that it is not the point of this piece to liken Donald Trump and Adolf Hitler, so don’t get your hopes up.) It was a decline in the making years before the Nazi Party’s major gains in the 1930 election, and born especially of the cacophony of regional and party interests in the Reichstag, leading to numerous presidential declarations of emergency from 1923 to 1929. Liberal jurists reacted with alarm to the use of emergency powers, and their most famous spokesman, Hans Kelsen, made the argument that modern law had developed to the point where there was no longer room for the exercise of personal authority: no matter what contingency arose in the state, it could be addressed by the application of statutes and constitutional norms. The law covers all. Opposing this view, and energetically arguing that in fact emergency powers ought to be deployed, was Carl Schmitt, the conservative jurist who would infamously join the Nazi Party in May 1933.

It is easy in retrospect to see the Schmitt of the 1920s as a Nazi in the larval stage, and to dismiss his thought completely. But this would be to ignore his intellectual complexity and formidable learning. Schmitt rightly claimed that republics had always provided against the threat of instability by depositing emergency powers in a single individual or a small council. In times of crisis, the Roman senate would temporarily grant broad powers to a commissarial dictator. Lucius Quinctius Cincinnatus is for the Roman historian Livy the model dictator: eminent in civic virtue, he is selected by the senate to put down a rebellion led by Maelius, and after successfully doing so he hands power back to the senate and returns to private life. In the Discorsi, perhaps the most influential text in the republican tradition, Machiavelli pointed to the Roman appointment of dictators as good for the republic. It is not the dictatorial powers that made Rome slide into tyranny, but abuse of dictatorial powers: “while the dictator was appointed according to public orders, and not by his own authority, he always did good to the city.”

At least one of this country’s founding fathers took a strikingly similar view of dictatorial power. In Federalist 70, Hamilton sounds a lot like Machiavelli in declaring that “every man the least conversant in Roman story, knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of Dictator.” This to argue for “the necessity of an energetic Executive,” which can respond to national threats with the “decision, activity, secrecy, and dispatch” more typical of the “proceedings of one man” than “of any great number.” From his lips to later presidents’ ears: Wilson, Roosevelt, Truman, and Nixon all declared national emergencies, each unleashing what a 1973 Senate report termed “extraordinary powers, ordinarily exercised by Congress, which affect the lives of American citizens in a host of all-encompassing manners.” These powers include the President’s ability to impose martial law. The Senate was moved to investigate the question because Nixon had in fact declared national emergency twice—on March 23, 1970 and on August 15, 1971—and they were alarmed to find that no fewer than four presidentially-proclaimed states of national emergency remained in effect at the time of their reporting. The 1976 National Emergencies Act, which by several reports the current administration is reading closely at the moment, sought to limit this presidential power by subjecting national emergencies to Congressional review and requiring presidents to declare exactly which statutory powers they will use in a declared state of emergency. Congress did not eliminate the emergency powers of the executive, nor did it seek to do so.

That such powers can be manipulated by over-reaching rulers is a commonplace of history and of political thought. The counter-example to Cincinnatus is Cornelius Sulla, who used dictatorship to advance his own power and permanently to mar the constitution of the Roman republic. The history of the American republic also raises questions on this score. If we really think about it, how comfortable are we that Lincoln launched a civil war by presidential proclamation? Did the attack on Fort Sumter justify him raising 75,000 troops without approval from Congress? It might seem instead to be akin to the kind of decision about which we now worry: a matter that falls under the scope of the law, but is raised to the level of national emergency to justify extraordinary presidential action.

And here we come to core problems of the question of emergency. The American war machine that has developed over the past half century has obviated the need for action like Lincoln’s: no need to raise an army when presidents have a million troops at their beck and call. We might thumb our noses at republican forebears who thought there was such a thing as a good dictator; they would scoff in return at those who have never seen the light of liberty from under the shadow of a standing army. Libertarian non-solutions to that condition fail to recognize the concrete situation of the modern state. In order for emergency powers to operate the way they ought to, they must be deposited in an individual who stands apart from interest groups, or political parties, or any other form of faction. Only that individual might act out of disinterested civic virtue and in defense of constitutional order, rather than out of a desire to advance narrowly political aims. And it is precisely the effect of the modern state to assure that no such individual exists. All of our associations—of region, religion, family, profession—are readily translatable into associations of interest group and political party. For all of his growling and belching about citizenship founded in blood and soil, if President Trump is invested in anything at all it is the stock market and his television coverage, things that he takes to be indicators of future electoral success. As such this president is thoroughly a product of his time, one where bitter factionalism and a language of existential threat are the quotidian tools of partisan politics. This is also to say that those who wish to raise the impeachment of President Trump to the level of national emergency should also be viewed with skepticism. The emergency has not yet arrived. When it does, we will find that Cincinnatus lives only in the history books.

Feisal G. Mohamed is a professor of English at Yale. Also trained in law, he is the author, most recently, of Sovereignty.
Originally published:
January 14, 2019


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