One February evening in 1933, the Reichstag building in Berlin was set on fire. Immediately, the Reichstag Fire Decree was issued, limiting German civil liberties and, according to Hitler, giving the Nazi party the power for “ruthless confrontation” of the Communist Party which could not be “made dependent on judicial considerations.” In the name of defending the country against terrorism, the Nazis had given themselves free reign over Germany.
Hitler’s Germany was a unique historical period with its own cultural influences, but his rise to power shares something in common with other democracies and republics that have handed power over to the executive branch. The political philosophers Carl Schmitt and Giorgio Agamben called it the “State of Exception,” and it happens when a ruler transcends the rule of law in the name of public good.
In the United States, we often call it a state of emergency. Throughout history, it has also been variously called the state of necessity, emergency decree, a state of siege, martial law, emergency powers and many other labels. It does not need to be officially declared, since many past presidents—from Lincoln during the Civil War to Wilson during World War I—have set the precedent of suspending habeas corpus and other civil liberties to protect the nation. It was employed by Franklin D. Roosevelt to save the country from The Great Depression and for the internment of Japanese Americans during World War II. George W. Bush’s Iraq War, his suspension of trials for foreign combatants and the Patriot Act all stepped outside the Constitution in the name of defending the country.
Those who establish a State of Exception always employ the necessity of defending the nation as their defense, and Trump’s Muslim Ban follows this playbook to a tee. “This is not about religion. This is about terror and keeping our country safe,” Trump said about his executive order titled “Protecting The Nation From Foreign Terrorist Entry To The United States.”
To be clear, Trump is not Hitler, and America is a very different nation than the Weimar Republic. In one aspect, this is good news, because Carl Schmitt once described the German susceptibility to dictatorship by saying “no constitution on earth had so easily legalized a coup d’état as did the Weimar Constitution.” On the other hand, Hitler did not take Germany by surprise when he used the Weimar Constitution’s State of Exception clause. It had been used several times in the aftermath of World War I to take control of the failing economy and suppress political opponents, as Agamben has pointed out.
In other words, a populace can become desensitized to the growing extralegal power of the executive branch, and this does not bode well in light of the fact that the 15-year-old Patriot Act is still in effect (except for a cosmetic change concerning the NSA’s data collection).
When a president attempts to create a situation in which emergency becomes the rule, ‘the distinction between peace and war becomes impossible.’
Obama’s troubles with closing Guantanamo also seem to be rooted in the fact that the State of Exception steps outside the law. Due to Bush’s efforts, Agamben says, “Not only do the Taliban captured in Afghanistan not enjoy the status of POWs as defined by the Geneva Convention, they do not even have the status of persons charged with a crime according to American laws.” The State of Exception has trumped both constitutional and international law, causing Guantanamo to be filled with a group of non-entities in an extralegal realm where there is little legal recourse to process them.
This limbo was shared by those detained at airports because of Trump’s executive order. Only after rulings by federal judges were the detainees released or their deportation blocked. Now, the appeals courts have rejected Trump’s efforts to immediately lift the stay on his executive order, but he has responded with an all-out assault on the judges and, failing victory in the courts, has said he will simply assert his authority by releasing a new executive order
As part of the executive branch, having been given its power to fight the judicial branch by an executive order under Roosevelt, the Justice Department is the tool Trump is using to try to enforce his State of Exception. This involves delegitimizing the judicial branch in favor of executive powers, which Trump addressed openly in his now famous tweet on February 4, 2017: “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!”
And of course, Trump’s arguments follow the same logic of necessity in the face of crisis. An official statement on the Justice Department’s appeal says, “The president’s order is intended to protect the homeland and he has the constitutional authority and responsibility to protect the American people.”
This constitutional authority has been established mostly through precedent. Unlike in other countries, especially in the early 20th century, there is no explicit part of the Constitution that gives the president free rein in cases of emergency. The closest thing we have is part of Article 1 of the Constitution, which states, “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” However, this has been broadly interpreted by past presidents to mean anything from economic troubles to international terrorism.
Furthermore, aside from the Constitution’s allowances, Congress can also grant the State of Exception to the President. The Justice Department is arguing that, based on a 1952 law, the president can restrict immigration if he determines their entry “would be detrimental to the interests of the United States.” The vagueness of this law and the way it is justified by protecting the nation are, of course, right in line with the logic of the State of Exception.
Since the State of Exception has been firmly established throughout our history, the president need only justify it with the rhetoric of rebellion, invasion, and public safety—even metaphorically. In this regard, Trump’s Twitter is a one-man propaganda wing with the purpose of rationalizing his various campaigns against his foreign and domestic opponents. And with each tweet seems to come another executive order. The law struggles to keep up, and we are thrown into a perpetual State of Exception.
This so-called national emergency has no end in sight, and when a president attempts to create a situation in which emergency becomes the rule, to quote Agamben one last time, “the very distinction between peace and war (and between foreign and civil war) becomes impossible.”