June 29, 2019

Defend Democracy: National States of Emergency, Part 2

States of Emergency have been used widely to undermine and overthrow democratic electoral governments, and also to attack political opponents of unpopular autocrats. But they also may indicate that popular movements and established government bodies outside of the executive office are making headway in opposing autocratic or oligarchic, anti-democratic leadership. The effects of a declaration of a state of emergency depend on those political agents that are involved in the struggle for democracy, and how they respond to such declarations.

 Declarations of a national emergency have a long history, and have been used widely around the world for political gain by narrow interests. The Italian political theorist Giorgio Agamben has discussed such efforts of the head of state to rule outside the law, what he calls the state of exception. A brief overview of the use of declarations of a national state of emergency in the twenty-first century will help us get some sense of how political bodies committed to democracy can respond to this threat.

In the past decade or two, national states of emergency have been declared by autocrats and oligarchs, generals and military councils in order to remove elected governments, as seen in Bangladesh in 2007, Myanmar in 2012, and Thailand in 2014.  In these cases, the declaration is deployed as part of the arsenal of weapons to destroy electoral systems and replace them with autocracy.

Before the recent declaration by President Trump of a national state of emergency in the United States,  legal commentators were already concerned that the American President was not willing to submit to the established rule of law.  With the declaration of a state of emergency, Trump has greatly expanded the considerable range of powers that he is granted by the laws that make such a declaration legal, as discussed in last month’s post. As Trump’s poll numbers remain low and the 2020 election approaches, we will see whether Trump uses those special powers to promote his own election or even attempts to remain in office by other means.

With Trump’s declaration, the U.S. joins the small number of G20 countries that have used such declarations for political purposes: Argentina and Turkey. Among OECD countries, only Turkey has a history of using such declarations to pursue unpopular policies and consolidate political power. 

States of emergency also have a history of being used by autocratic, unelected governments to oppose popular movements pressuring them to change policies or attempting to remove them from political power, as in Argentina in 2001, Paraguay in 2002, Nepal in 2005, and Ecuador in 2006. In several of these cases, popular opposition proved to be strong enough to withstand the impact of the national state of emergency, and leaders were forced from power within a year or two after the declaration.

In recent years the national emergency has been a weapon used by elected leaders to attack opposition political movements, court decisions opposing elected leaders, and even opposition parties, as in Pakistan in 2007, Kyrgystan in 2010, and Turkey in 2016.  In some cases (as in Turkey), the declaration has successfully marginalized opposing organizations. However, in others (as in Kyrgystan) the state of emergency was not effective in weakening opposition to autocracy, and the leader fell from power.

In the United States there was some objection to Trump’s declaration of a state of emergency by a few commentators, but almost zero public opposition by social movements or political parties. Perhaps the citizens of the United States are so accustomed to electoral democracy, with its many compromises of popular will, that they did not feel moved to object to the establishment of another beachhead of autocratic governance. Since there is little public education in the United States about the high stakes of such a clear threat to electoral practices, perhaps it is understandable that there was so little popular opposition.

These historical uses of the declaration of states of emergency show why many supporters of democracy find these declarations problematic. But they also show that even when a political leader wields the cudgel of an emergency declaration, they still may be forced from office if popular opposition remains vocal and strong through the process.

April 30, 2019

Defend Democracy: National States of Emergency, Part 1

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. This misuse will be discussed further in next month's "Defending Democracy" post.

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.