America's Weimar Crisis
Donald Trump declares an emergency in order to provoke one
(I said last week that you could still hate Donald Trump even if you thought on balance that he made the right call in Iran; and I meant it.)
In 1919, Germany’s new government invited Hugo Preuss, one of the nation’s leading constitutional scholars and liberal thinkers, to write a new constitution. The framework Preuss devised vested sovereignty in the German people, full legislative powers in the parliament, and limited authority in an elected president. It was designed to be, as the Germans put it, “dictator-proof.” But Preuss also included an emergency clause, Article 48, that allowed the president to call on the armed forces and suspend civil liberties if a state defied federal law or “public security and order are seriously disturbed.” Earlier that year paramilitary forces had been dispatched to crush the self-declared “Soviet Republic of Munich”; Preuss feared a recurrence. Nevertheless, Article 48 occasioned little comment as the Weimar Constitution sailed through the National Assembly.
The United States Constitution has, of course, no emergency escape hatch; the framers worried about a dictatorial executive even more than Preuss would do. But the dilatory pace of legislation forced twentieth-century presidents to declare emergencies in the face of war and economic crisis. The Supreme Court limited those powers in the 1952 Youngstown decision, when it ruled that President Truman did not have the right to seize the nation’s steel mills to prevent a strike, even in the midst of the Korean War. In 1976 Congress finally imposed rules on these executive declarations in the National Emergencies Act. The law was designed not to expand executive power but to control it. That said, those powers have proliferated: the Brennan Center for Justice lists over 130 emergency statutory authorities.
“Emergencies Are Not To Be Equated with Normal Ongoing Problems”
Legislators feared an “imperial presidency”; but, like Germany’s, they did not anticipate the uses to which emergency law would be put. The chaos of the Weimar era led one Reich president after another to intervene, and ultimately suspend Parliament; Hitler used Article 48 to set aside constitutional rule itself. Every American president has invoked the National Emergency Act, sometimes promiscuously, but typically to impose sanctions on corrupt or authoritarian regimes. (See a complete list of NEA declarations here.) Donald Trump is in this respect our Hitler: only he has abused the law, and other emergency provisions, to enhance his own power in violation of our constitutional design.
The giveaway of Trump’s dark purposes is the enormous, sometimes comical, discrepancy between the actual situation and the “emergency” that he describes. On his first day in office Trump declared a “national energy emergency,” claiming that “hostile states and non-state actors” have “weaponized our reliance on foreign energy”--at a time when American oil production was at a historic high and oil prices were stable. On April 2 he cited the International Emergency Economic Powers Act to impose across-the-board tariffs. When Congress passed the IEEPA in 1977, the House Committee on International Relations pointedly noted, “emergencies are by their nature rare and brief, and are not to be equated with normal ongoing problems.” The American trade balance is, of course, a perfect example of a normal ongoing problem–if it’s even a problem.
Tariffs, it’s true, don’t threaten individual liberties, but seizing immigrants on the street and militarizing domestic law enforcement do. Trump’s deportation of alleged members of a Venezuelan gang depended upon the 1798 Alien Enemies Act, which authorized the expulsion of aliens in the event of a “declared war” or “invasion or predatory incursion” from their host country. The supposed gang-bangers so patently did not constitute such a threat that Fernando Rodriguez Jr., the Trump-appointed federal judge in Texas who ruled against the Administration, felt compelled to observe that a president cannot “unilaterally define” the conditions required for the act and then “summarily declare that those conditions exist.”
Is An Emergency Anything Donald Trump Says It Is?
But sometimes–and under the most dangerous conditions–a president may be able to do just that. The Insurrection Act, the American equivalent of Article 48, authorizes the president to use the armed forces against domestic insurrections. In its 1827 ruling in Martin v. Mott the Supreme Court concluded that an early version of the law makes the president “the sole and exclusive judge of the existence” of facts justifying its use. (See the invaluable Executive Function substack for a deep dive into this question.) When he directed National Guard troops to help put down protests in Los Angeles, Trump cited a similar if less well-known statute.
Is a rebellion, then, anything the president says it is? Can he send federal troops to the Columbia campus to put down a protest over Gaza? Relying in part on Judge Rodriguez’ decision, Charles Breyer, the federal judge who ruled the deployment illegal, wrote that, unlike a king, a democratic leader cannot “simply say something and then it becomes it.” Even the Ninth Circuit Court of Appeals, which unanimously overturned that decision, rejected the claim that the president’s factual conclusions were immune to judicial review. So while Trump has effectively disposed of the legislative branch of government as an impediment to emergency rule, he is not yet altogether free of the judiciary. But this may prove a flimsy obstacle in the aftermath of the Supreme Court’s decision to prohibit nationwide injunctions.
The Reich presidents who invoked Article 48 in the 1920s often had good reason for doing so, for political leaders were being gunned down in the streets and hyper-inflation was destroying the German economy. Donald Trump inherited an essentially tranquil society. It is precisely his rule by emergency that is provoking the conditions he uses to justify the claim of emergency. That appears to be the whole idea. Why send the National Guard into Los Angeles at the moment when the city was gaining control over the turbulence in the streets if not to incite more violence? What other provocations might he have in store? Trump’s demiurge, Stephen Miller, has asserted, whether seriously or trollishly, that the Administration is “actively looking at” suspending the right of habeas corpus. Might that be the kindling to spark the kind of public demonstrations that would move Trump to unleash the full force of the Insurrection Act?
The Founders were ever-watchful of the danger of despotism. But America elected no despots; our system seemed to go of itself. In his ruling in Martin, the great Justice Joseph Storey concluded that the danger of abuse of the emergency power “must be remote, since in addition to the high qualities which the Executive must be presumed to possess, of public virtue, and honest devotion to the public interests, the frequency of elections, and the watchfulness of the representatives of the nation carry with them all the checks which can be useful to guard against usurpation or wanton tyranny.”
Who would have thought otherwise in 1827? Or 1927? Though America elected presidents who were hardly paragons of public virtue, it did not elect usurpers or tyrants. Now, after 235 years, we have done just that.
Sharing widely, so well put.