I wrote this back in late March, but was unsuccessful in pitching it to several outlets. It’s messy, and not my best writing. But the main point – and warning – remain as relevant as ever given the Trump administration’s recent attempts to further consolidate power and undermine the rule of law.
Recent reporting reveals that following President Trump’s March 13 declaration of a national emergency in response to the coronavirus pandemic, Attorney General William Barr quietly pushed Congress to expand executive powers. Barr’s request to Congress included the power to pause the statute of limitations for criminal and civil proceedings during this emergency “and for one year following the end of the national emergency.” Barr also asked Congress for the power to request the chief judge of any district court to halt court proceedings, allowing the DOJ to detain a person without trial until the crisis is declared officially over.
Trump’s administration is not the first to seek to expand executive power through the declaration of a national emergency. Since the National Emergencies Act became law in 1976, over sixty national emergencies have been declared, and the non-partisan Brennan Center for Justice finds that more than thirty remain in effect today. Because those previous national emergencies remain in effect, when Trump declares a national emergency today he has over 120 statutory powers available to use at his discretion. Among the many statutory powers available to Trump from prior administrations is the power to assume control over communications facilities, including internet service providers, and the power to freeze Americans’ bank accounts. Under this administration, where cruelty often appears to be the point, this expanse of powers constitutes as serious a threat to democratic rule as we have seen for its potential to usher in a state of exception.
The state of exception refers to the legal right of an executive to declare a suspension of the legal order in the event of an emergency. In his book of the same name, the Italian philosopher Giorgio Agamben convincingly shows that when invoked, this legal maneuver has resulted in the erosion of the legislative branch by the executive, and the suspension of rights and due process for ordinary citizens.
In his 1933 inaugural address, and in response to the economic crisis resulting from the Great Depression, then-US President Franklin D. Roosevelt invoked broad executive powers by presenting his economic policies as matters of warfare. Roosevelt declared,
“In the event that the Congress shall fail to take [the necessary measures] and in the event that the national emergency is still critical, I shall not evade the clear course of duty that will then confront me. I shall ask the Congress for the one remaining instrument to meet the crisis—broad Executive power to wage war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe.”
Just three months later, the National Recovery Act granted FDR unlimited power to regulate nearly every aspect of the economy. The rising threat of fascism across the Atlantic set the stage for Roosevelt to declare a “limited” national emergency in September of 1939, and then an “unlimited” national emergency in May of 1941.
Roosevelt used his new powers to issue Executive Order 9066 in 1942, authorizing the US military to designate certain areas as military zones in which “the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion.” Roosevelt’s order cleared the way for the forceful detainment and internment of more than one-hundred thousand men, women, and children of Japanese ancestry, including over seventy-thousand Japanese-American citizens.
More recently, just a few short months after the terrorist attacks on September 11th, 2001, then-President George W. Bush issued a military order authorizing the “indefinite detention” and trial of noncitizens suspected of terrorist involvement. Bush’s order created a new legal status for legal limbo for suspected Taliban held in US custody, that of “enemy combatants”. As enemy combatants, they were not prisoners-of-war as defined through the Geneva Convention, nor were they accused criminals subject to US law and protections. Instead, they were reduced to what Agamben describes as a condition of “bare life”, whereby a person is rendered legally unclassifiable. Without legal standing, detainees were subject to inhumane and extra-legal torture.
What Agamben and others also make clear is that new powers granted under the state of exception often prove difficult to roll back when the actual crisis ends. Instead, the crisis becomes the rationale for a new, more permanent state of authoritarian governance. One year after the September 11 attacks, President Bush created the Department of Homeland Security as part of his declared War on Terror. Since its founding, however, the agency has spent a disproportionate amount of time and effort on securing the US-Mexico border, especially considering that not one of the nineteen terrorists responsible for the September 11 attacks entered the US from the southern border. Under the Trump administration, DHS efforts to secure the US-Mexico border have included the expansion of migrant detention centers, the forced separation of migrant children from their parents, and the suspension of due process for detainees.
To be sure, the novel coronavirus constitutes a national emergency. But we all should be cognizant of the distinction between a state of emergency and a state of exception. For both Presidents Roosevelt and Bush II, the metaphor of war played an important part in justifying extraordinary and extra-legal actions. Already, Trump is leaning into this metaphor to describe his stance against a virus that has no understanding of or care for geopolitical boundaries. Trump and his allies are embracing the title of “wartime president”, even going so far as to suggest that Americans are now already in something like a state of war. There have been no shortage of warnings against the Trump administration’s quest for consolidated power. Some of us are convinced that a global pandemic might provide the context he has craved to advance his authoritarian agenda. This, then, is my advice to you, dear reader: beware the state of exception.
James M. Thomas (JT) is an associate professor of sociology at the University of Mississippi. He is the author of four books and more than 20 peer-reviewed journal articles, book chapters, and other essays on the causes and consequences of racism in America and abroad. JT can be reached at firstname.lastname@example.org, or on Twitter @Insurgent_Prof.