Donald Trump’s threat to declare a national emergency in order to fund a wall along the Mexican border is chilling. But Charlie Savage’s front-page story in yesterday’s Times is even worse because it endorses a unilateral declaration before Trump even takes such a drastic step. It’s more than a bit redolent of the Weimar Republic when centrists laid the basis for authoritarian government long before Hitler was at the point of seizing power.
Savage’s logic is dizzying. While a state of emergency “would be an extraordinary violation of constitutional norms,” he writes, it may be “the only politically realistic way out of the shutdown” since it would allow government to resume while shifting the question of whether a state of emergency is legal onto the courts.
There, he assures us, it will languish for years, “keeping lawyers far busier than construction workers, at least initially, as his [i.e. Trump’s] term ticks away.” If the declaration loses, Trump will happily bash away at liberal judges on the 2020 campaign trail. If it’s sustained, he adds, he’ll still be tied up for years in litigation with border property owners unwilling to give up their land.
So a wall will be put off while Congress gets back to the business of government (such as it is). To be sure, the article acknowledges “the risk of longer-term damage to the American constitutional system,” or at least quotes Elizabeth Goitein of NYU’s Brennan Center to that effect. But this is hardly adequate. It’s not merely a question of damage, but of taking a constitutional system that is already in an advanced state of decay and tossing it over a bridge.
An exaggeration? Not at all. Washington has seen a growing civil war over the last quarter of a century or so. Three major government shutdowns have occurred, one for 26 days in 1995-96, another for sixteen days in 2013, and now one approaching the end of its third week. Each has left Congress angrier, more polarized, and more gridlocked than ever. A state of emergency would therefore seem to be a logical next step, one in which the executive branch gives up on a cumbersome legislative process and decides to bypass it altogether.
But once that Rubicon is crossed, what’s to stop it from doing it again and again? The answer is nothing. The more unilateralism becomes the norm, the more the presidential party will be inclined to drag its feet on Capitol Hill in the hope that the White House will break the logjam by issuing yet another emergency decree. Congress will grow more dysfunctional as legislative power shifts ever more decisively to the executive. Instead of a democracy, the US will wind up with a kind of Bonapartist presidential dictatorship interrupted every four years by elections distorted by big money, dirty tricks, and a lopsided Electoral College. (For more on the Bonapartists threat, see what I wrote about Trump in Jacobin in December 2015.) Checks and balances, the hallowed eighteenth-century mechanism that supposedly steers American politics firmly to the center, will become a dead letter. Politics will grow even more elitist, corrupt, and dysfunctional than they already are.
Comparisons with Weimar are unavoidable. Thanks to the abortive German revolution of 1918, the constitution that emerged a year later was an ungainly mix of the democratic and authoritarian. Since the Reichstag was elected according to strict proportional representation with no minimum required for entry, a party could gain a seat with as little as 0.4 percent of the vote. As a result, 28 parties were represented as of 1930 and forty as of 1933. But contrary to decades of liberal propaganda, this was not the problem. The problem, rather, was Weimar’s notorious Article 48, which gave the president sweeping emergency powers, thereby allowing him to cut short the legislative process and rule directly on his own. This is precisely what President von Hindenburg, first elected in 1925, did once the crash of 1929 hit Germany with gale-force winds. As the Reichstag descended into irrelevance, power retreated into an inner sanctum presided over by an arch-conservative ex-field marshal well into his eighties. With the economy plummeting and major street fighting erupting between Nazis and Communists, the equally conservative Franz von Papen, Hindenburg hand-picked prime minister even though he didn’t have a seat in parliament, figured he had no choice but to bring in a real strongman to take matters in hand. Von Papen assured his fellow rightists that he could keep Hitler under control, but that’s not quite how things turned out.
America’s constitutional fault lines are curiously similar. The problem is not a multitude of small parties since the “Repocrats” are by now history’s oldest two-party system since the Guelphs and Ghibellines of late-medieval Italy. Rather, it’s an arcane division of power among three or four branches of government, the executive, the judiciary, plus the two houses of Congress. The older the system grows and the more polarized politics become, the more the rickety old machinery freezes up in moments of stress. The more it does so, the more emergency rule looms as the only practical alternative. The United States finds itself treading the same path as Germany whether it likes it or not.
And now, to complete the analogy, we have the Times urging on emergency rule just as conservative parties like Konrad Adenauer’s Zentrum did decades earlier. The Times doesn’t approve of radicalism, of course. It’s constitutionally averse, so to speak. But like German centrists, it figures it has no choice because it’s the only thing that will break the deadlock. It assumes that the system will right itself once Trump is out of office — but, but, then, people like Von Papen lulled themselves to sleep with fairy tales as well. Once a precedent is established, authoritarianism will in fact acquire a logic that is all but unbreakable. It’s happened before, and it will definitely happen again.
America’s antiquated governmental machinery fairly cries out for an overhaul. But Article V, the US equivalent of Weimar Germany’s Article 48, makes it impossible by allowing tiny minorities – just thirteen states representing as little as 4.4 percent of the US population – to veto the slightest constitutional reform. Just as a revolution was the only thing that would have averted a democratic collapse in Germany – something that Stalin rendered impossible with his insane doctrine of “after Hitler, our turn” – a revolution sweeping away an absurd eighteenth-century governing structure is the only thing that will avert democratic collapse today. America’s huddled masses are desperately in need of a genuine democracy that speaks to the needs of the working class. But they can’t get there from here under anything resembling the present system. What will they do – suffer in silence or take the measures needed to save society?