April 30, 2019

Defend Democracy: National States of Emergency



The recent declaration of a national state of emergency by U.S. President Trump exploits a weak point of democratic governance in electoral nation-states. That weakness has often been leveraged by national leaders to transform democracies into autocratic forms of governance.

Some critics, notably Carl Schmidt and Giorgio Agamben, have argued that the popular will in electoral democracies is always at risk of being overturned by executive decision. This argument, which some call the state of exception, is that what appear to be governments responsive to the will of the citizenry are subject to autocratic mandated decisions on exceptional occasions.

State of emergencies are just such occasions where the will of the executive is permitted to override the public will. Many nation-states have formal regulations governing declarations of a state of emergency, such as the U.S. National Emergencies Act. But any use of this mechanism puts democracy at risk.

A declaration of a state of emergency is one of the most common tools that elected leaders us to violate the popular will and install a state of exception. Through such declarations, executives give themselves substantially expanded powers that often are not balanced by other governmental bodies. In the case of the President Trump’s declaration, for example, one analysis suggests that in the simple verbal declaration the President gains 123 powers beyond those given him or her by the constitution.

But the misuse of emergency powers is a standard gambit among leaders attempting to consolidate power. Authoritarian leaders that Trump has openly admired — including the Philippines’ Rodrigo Duterte and Turkey’s Recep Tayyip Erdoğan — have gone this route.

The executive branch has a variety of powers that do not require a declaration of emergency, such as "laws that allow the president to deploy troops inside the country to subdue domestic unrest." Some legal scholars believe that the Constitution gives the president inherent emergency powers by making him commander in chief of the armed forces, or by vesting in him a broad, undefined “executive power.” At key points in American history, presidents have cited inherent constitutional powers when taking drastic actions that were not authorized — or, in some cases, were explicitly prohibited — by Congress. Notorious examples include Franklin D. Roosevelt’s internment of U.S. citizens and residents of Japanese descent during World War II and George W. Bush’s programs of warrantless wiretapping and torture after the 9/11 terrorist attacks.  

The Supreme Court has often upheld such actions or found ways to avoid reviewing them, at least while the crisis was in progress. Rulings such as Youngstown Sheet & Tube Company v. Sawyer, in which the Court invalidated President Harry Truman’s bid to take over steel mills during the Korean War, have been the exception. And while those exceptions have outlined important limiting principles, the outer boundary of the president’s constitutional authority during emergencies remains poorly defined.

The National Emergencies Act in 1976 gives the president the complete discretion to issue an emergency declaration — however, the Brennan Center notes that this law has been a complete failure, since Congress has pursued none of the limits to the law, such as regular review of their provisions and expiration of emergency declarations after 6 months. As a result, the president has access to emergency powers contained in 123 statutory provisions, as recently calculated by the Brennan Center for Justice at NYU School of Law. These laws address a broad range of matters, and for the most part, the president is free to use any of them; the National Emergencies Act doesn’t require that the powers invoked relate to the nature of the emergency.
President George W. Bush took matters a giant step further after 9/11, when he issued Executive Order 13224, International Emergency Economic Powers Act, or IEEPA. Executive Order 13224 prohibited transactions not just with any suspected foreign terrorists, but with any foreigner or any U.S. citizen suspected of providing them with support. Once a person is “designated” under the order, no American can legally give him a job, rent him an apartment, provide him with medical services, or even sell him a loaf of bread unless the government grants a license to allow the transaction. The Patriot Act gave the order more muscle, allowing the government to trigger these consequences merely by opening an investigation into whether a person or group should be designated.
Designations under Executive Order 13224 are opaque and extremely difficult to challenge. The government needs only a “reasonable basis” for believing that someone is involved with or supports terrorism in order to designate him. The target is generally given no advance notice and no hearing. He may request reconsideration and submit evidence on his behalf, but the government faces no deadline to respond. Moreover, the evidence against the target is typically classified, which means he is not allowed to see it. He can try to challenge the action in court, but his chances of success are minimal, as most judges defer to the government’s assessment of its own evidence.
Under this Executive Order, the president could determine that any American inside the U.S. who offers material support to the asylum seekers — or, for that matter, to undocumented immigrants inside the United States — poses “an unusual and extraordinary threat” to national security, and authorize the Treasury Department to take action against them. 
Such a move would carry echoes of a law passed recently in Hungary that criminalized the provision of financial or legal services to undocumented migrants; this has been dubbed the “Stop Soros” law, after the Hungarian American philanthropist George Soros, who funds migrants’-rights organizations. Although an order issued under IEEPA would not land targets in jail, it could be implemented without legislation and without affording targets a trial. In practice, identifying every American who has hired, housed, or provided paid legal representation to an asylum seeker or undocumented immigrant would be impossible — but all Trump would need to do to achieve the desired political effect would be to make high-profile examples of a few. Individuals targeted by the order could lose their jobs, and find their bank accounts frozen and their health insurance canceled. The battle in the courts would then pick up exactly where it left off during the Obama administration — but with a newly reconstituted Supreme Court making the final call.
States of emergency grant the executive branch considerable military powers, and the Insurrection Act of 1807 provides the necessary authority. As amended over the years, it allows the president to deploy troops upon the request of a state’s governor or legislature to help put down an insurrection within that state. It also allows the president to deploy troops unilaterally, either because he determines that rebellious activity has made it “impracticable” to enforce federal law through regular means, or because he deems it necessary to suppress “insurrection, domestic violence, unlawful combination, or conspiracy” (terms not defined in the statute) that hinders the rights of a class of people or “impedes the course of justice.”
As the Brennan Center has noted, the potential misuses of the Insurrection Act are legion. When Chicago experienced a spike in homicides in 2017, Trump tweeted that the city must “fix the horrible ‘carnage’ ” or he would “send in the Feds!” To carry out this threat, the president could declare a particular street gang — say, MS‑13 — to be an “unlawful combination” and then send troops to the nation’s cities to police the streets. He could characterize sanctuary cities — cities that refuse to provide assistance to immigration-enforcement officials — as “conspiracies” against federal authorities, and order the military to enforce immigration laws in those places. Conjuring the specter of “liberal mobs,” he could send troops to suppress alleged rioting at the fringes of anti-Trump protests.
The Brennan Center has also outlined a chilling scenario of how Trump can use emergency powers to win an election, even if he follows the law. Of course, Trump might also choose to act entirely outside the law. Presidents with a far stronger commitment to the rule of law, including Lincoln and Roosevelt, have done exactly that, albeit in response to real emergencies.
In Youngstown, the case in which the Supreme Court blocked President Truman's attempt to seize the nation's steel mills, Justice Jackson observed that broad emergency powers were “something the forefathers omitted” from the Constitution. “They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation,” Justice Jackson wrote. “We may also suspect that they suspected that emergency powers would tend to kindle emergencies.” 
When it comes to President Trump, who clearly loves to play with fire, allowing him to make the declaration may have been more than giving him fuel for setting fires. It may have been a step that damages democracy in the U.S. irreparably.
President Trump’s triumph was distracting the nation sufficiently that he could declare the state of emergency without the citizenry taking to the streets. But now that he has the emergency powers at his disposal, it will be very difficult to object to many possible behaviors. Who knows if electoral democracy in the U.S. will survive this emergency. Time will tell.

February 28, 2019

Other Democracies: The Yellow Vest Movement in France.


The protests against austerity policies in France that blossomed into the Yellow Vest movement in November, 2018 present challenges to those who still carry faith in electoral democracy.  While initially centering on fuel taxes, participants also are demanding raises to the minimum wage and the rollback of recent tax cuts for the wealthy and other pro-business policies.

Like other protests by the poor against pro-business policies that have bloomed across the world for decades, these protests against fuel price rises push back against neoliberal economic policies.  Although the Macron government argues the fuel price tax increase was to move the French economy towards a greener economy, French truck drivers, secretaries, care workers, and others with no room in their budgets are forced to pay costs they cannot bear. This is the cost of living in an electoral state where the leadership is not interested in popular opinion, but in its own narrow interests.

The history of policies generous to the rich and attacking the poor in France and many other economies worldwide often produces protest from the poor. But when do electoral democracies listen to the poor?

The difference of the Yellow Vest movement in France from many other protest movements is its lack of a center. This is a structure for democratic demand that does not replicate the centralized hierarchies of electoral governments, an organizing tactic that produces other politics. The turn away from centralization and towards openness to many constituents and viewpoints characterizes many political practices, what we term “Other Democracies.”

Commentators who are only familiar with centalized organizations assume that the Yellow Vest movement will be overtaken by already established political parties. This shows that commentators are not familiar with non-party movements, and can only conceive of politics in the narrow terms offered by electoral party policits. Yet the Yellow Vest movement has refused to align itself with established political parties, since they recognize the danger of participation in a centralized system tilted towards social elites.

The success of French democracy hangs in the balance of this struggle over public discussion.

Other struggles in Europe against neoliberalism, such as the Greek anti-austerity movement of 2010-2015 and the 2011 indignado movement in Spain, have shown the costs of allowing a popular movement to morph into political party activism. Austerity policies have continued apace after both of these movements were captured by political parties, and the pressures on low-wage workers, the unemployed, the disabled, and even the middle-class have not been reduced significantly.


One strategy of the privatization and wealth redistribution upwards policies known as neoliberalism or austerity is to attack public spaces. Presenting private spaces, such as shopping streets, mini-malls, and megastores, as gathering places for the public makes it more difficult for the public to do the important business of discussing urgent concerns. These privatized spaces displace citizenry roles to make roles as consumers more central in the life of the public.

The yellow vest movement members claims on traffic circles as meeting places revived the important activity in any democracy of a discussing those topics of concern for citizens.  When austerity policies remove safety nets ensuring all can meet basic needs and place intense pressures on the public, citizens would respond in any full democracy with discussion of how to meet basic needs and reduce the stresses of a lack of resources. So discussions in open, public spaces become important on a time frame driven not by parliamentary elections but by increasing pressure on the poor.

Macron’s attempts to reclaim public discussion and manage it to serve his own interests is an attempt to disrupt competing claims to represent the public’s interest by the Yellow Vest movement.  The smear tactics of sending in thugs and vandals to reduce public support for the Yellow Vest movement is an old tactic found since the nineteenth century in France (275-80), when the wealthy began using thugs to divide the poor and prevent mass movements.

Outside Europe similar struggles have led to different outcomes, as when multiple presidents were thrown out by popular meetings in public places in Argentina of 2001 and when the South Korean president was removed from office in 2017. Certainly Macron is aware of the high stakes, and will do whatever he can to remain in office.

Perhaps the greatest fear of those in command of electoral political systems is that they will lose their monopoly on the claim to represent the public. As Michel Foucault argued (271-88), unexpected associations of groups in horizontal solidarity is a major threat to the modern regime that enforces individuation in an effort to interrupt horizontal solidarities. Such horizontal solidarities were very successful in Europe between around 1780 and 1848, demanding accountability of political leaders to widespread concerns and changes in unequal distribution of wealth and political power.  These horizontal solidarities also attempted to disrupt actions of the wealthy that were harmful to common people, such as labor exploitation and the theft of family wealth through financial markets.

Democracy can thrive only when the urgent concerns of large social sectors are addressed by political leaders.  Yet electoral democracies in Europe and beyond have shown for decades that they are more responsive to the interests of the few than to the interests of the many. That is why structures for democratic practice other than the electoral state have long received wide support, even if these movements are overlooked by news commentators and policy experts.

December 26, 2018

Misnaming Democracy: The Colonial Heritage of National Democracies


                The British empire is coming under criticism in news reports about recent court decisions striking down legal bans against same-sex relations in India and Singapore. Section 377 in the Indian penal code criminalizing certain sexual acts was the direct model for penal codes in other colonies, such as Section 377A in Singapore’s criminal code. In borrowing from the Indian penal code and other legal conventions, Singapore took India’s legal system as a model adaption of the British legal and constitutional system.
                Little is being said about other aspects of the colonial heritage that remain embedded in democratic governance and legal practices globally. The adoption of electoral democracy and bicameral parliamentary systems after gaining independence from direct European control was widespread, for example, even though the European claims to democracy were also part of the colonial heritage. Even those countries who were not directly colonized by European powers, like Japan and Thailand, drew on European models for their constitutions and legal systems. These colonial practices at the founding of modern nation-states is one form of the founding violence of many national democracies.
                The Kenyan social critic Ngũgĩ Wa Thiong’o’s essays and novels have explored multiple ways in which the Kenyan postcolonial political and legal system reproduces the British colonial governance system and legal order. Like Section 377 in the Indian penal code, Kenyan practices were put into place after the British lost direct political control, and they have proven very effective in producing small economic and political elites rather than social equality for all. Ngũgĩ has detailed specific legal codes, government departments, and other aspects to the Kenyan postcolonial state that were effective in putting him in prison and then chasing him out of the country, just as these codes and departments have been effective to silence other critics in other postcolonial nations. This oligarchic pattern may be found across the former colonies not only of Britain but of France and other European colonial powers.
                In the United States and other British settler colonies, the legal framework used by nations claiming democracy as their own is not always so directly related to the colonial legal heritage. Take the important 1823 U.S. Supreme Court decision, Johnson v. McIntosh which provides the foundation for the U.S. legal system of private property. This decision, taught in every introductory course on property law, draws not on British but on Spanish and Portuguese legal doctrines known as the Doctrine of Discovery that continue to rely on papal bulls issued from Rome. This legal decision was central to the theft of the heritage lands of Native Nations in the United States. It continues to provide an important pillar for colonialism in the Americas long after the Spanish, the Portuguese, and the British have lost direct political control of their colonies.
                None of these legal instruments and government practices produce the equality that democracy promises. They were put in place centuries ago in order to produce and preserve inequality between colonizers and their subjects.
When they are left in place in postcolonial, settler colonial, and other national legal and constitutional after the colonizers have left, they do not serve democratic ends. Rather, they contribute to the inequality that characterizes so many national political systems that claim democracy as their own.  
A wide range of organizations have opposed various specific items in these legal codes, as has been seen not only in the recent Section 377 decisions but also in the opposition to the Doctrine of Discovery by the Presbyterian Church, the Episcopal Church, and other religious organizations. It will take longer for consolidated opposition to emerge against other aspects of the colonial, neocolonial, and postcolonial heritage of present-day democratic practices. Only then will democracy become a decolonized form of government.