“I didn’t need to do this, but I’d rather do it much faster. I just want to get it done faster, that’s all.” (US President Donald Trump, February 15, 2019)
President Trump’s declaration of a
state of emergency is constitutionally dubious as well as politically
irresponsible for reasons that have been usefully highlighted by other contributors.
But perhaps its most astonishing feature is Trump’s perversion of the traditional
temporal justification for executive-centered emergency government. That
justification typically rests on two interrelated prongs.
Crises or “emergencies” have long been pictured
as swift-moving attacks on the “body politic” and its fundamental integrity. Constituting
fast-moving as well as fundamental threats to the political and
legal order, they correspondingly require rapid-fire institutional responses.
John Locke’s famous justification of executive “prerogative”
with reference to the example of necessarily “pull[ing] down an innocent man’s
house to stop the fire, when the next to it is burning” (Chapter XIV) nicely
captures not only the traditional idea that a crisis entails a genuine danger,
but also that the threat at hand is fast-moving and needs to be quickly contained.
Despite some ambiguities, this first
component of the traditional temporal imagery captures something important. Many
aspects of modern society are in fact subject to an astonishing speed-up, or what
Hartmut Rosa and I have described elsewhere
as “social acceleration”. One of the consequences of this trend is that
political officials are frequently forced to tackle rapid-fire challenges – fast-moving
military threats, for example, or sudden economic downturns (e.g., the 2008 global
financial meltdown). Not surprisingly, the language of crises or emergencies is
ubiquitous in contemporary political discourse. Astute legal analysts have diagnosed
a troublesome blurring of the boundaries between ordinary and normal lawmaking.
Although Trump’s declaration builds on
that worrying legacy, it takes it in new and probably unprecedented directions.
Tellingly, Trump’s declared emergency is neither life-threatening nor urgent, as
he more-or-less openly conceded: “I didn’t need to do this.” His temporal claim
is different: “I just want to get it done faster, that’s all.” By most
journalistic accounts, Trump’s interventions in congressional negotiations
following the government shutdown were at best inept and, at worst,
counterproductive: Trump clearly has no patience (or interest) in ordinary
lawmaking mechanisms. For its part, the post-shutdown Congress quickly hammered
out a political compromise and passed legislation: it did its job. But
President Trump, it seems, is unhappy with the results, and because of his evident
impatience with the normal workings of constitutional government, he has
decided to declare an emergency. It is not the (alleged) emergency at hand that
is fast-moving. Instead, the President simply wants fast results in sync with
his unpopular preferences.
Nor does Trump’s declaration mesh cleanly
with the second prong of the traditional justification for executive-based
emergency government. According to this second feature, the single-person of
the executive is best adapted institutionally to the tasks of emergency
management: only the executive can respond rapidly and efficiently to
fast-moving crises. As forcefully expounded by Enlightenment writers from Locke
and Montesquieu to the US Federalists, large deliberative legislatures are by
nature poorly suited to the management of unexpected crises, whereas the single
person of the executive is more likely to move quickly and efficiently. This
traditional view continues to haunt many contemporary defenses of executive emergency
action. For example, Eric
Posner and Adrian Vermeule rely on the familiar temporal and institutional
contrast between slow, deliberative legislatures and expeditious, fast-moving
executives. Though they acknowledge that the modern executive (and
administrative state) represents a large, unwieldy institutional creature, its
hierarchical structure allegedly guarantees that presidents can “act with much
greater unity, force, and dispatch” than Congress, whose large numbers,
deliberative orientation, “elaborate procedures, and internal structures”
necessarily render it temporally inefficient.
Let me just note that the traditional view is more
controversial than Posner or Vermeule acknowledge. The US federal executive,
for example, has an estimated 600,000 employees. Messy, multi-headed, and oftentimes
temporally sluggish institutional creatures, executives do not possess self-evident
temporal advantages vis-à-vis
But Trump’s declaration, revealingly, does not clearly reference this second facet of the traditional justification. He is not in fact asserting or inferring that the executive is better suited institutionally to confront a rapidly developing, life-threatening crisis. That claim, in fact, would be untenable since Congress has already successfully legislated and rejected his request to build a “wall” on the US-Mexican border. Admittedly, if Congress instead had stumbled and ordinary lawmaking mechanisms were paralyzed, then Trump might have been able to lay out a plausible defense of the need for timely executive action. But that option was foreclosed to him with Congress’ successful budgetary negotiations, negotiations he in fact formally endorsed by signing off on them immediately before making his emergency declaration. What ultimately matters to Trump is political expediency, not institutional efficacy.
The annals of constitutional government are filled with dubious justifications for emergency rule. But Trump’s declaration represents a new low, at least for the United States. During the congressional campaign last fall, Trump – and his Republican allies – did make a concerted effort to describe the “border crisis” as a fast-moving, existential threat to the US. Many voters were skeptical of that appeal, and they arguably rejected it last November by handing control of the House of Representatives to the Democrats. Trump’s public confession that his emergency declaration is (politically) desirable but not in fact necessary simply lets the cat out of the bag: Trump’s perceived need to satisfy his hardcore political base motivated his emergency declaration. His implicit confession as well that the only reason for “fast” emergency action is that he deems it politically opportune should alarm defenders of constitutional government everywhere.