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Saturday, August 08, 2020

Emergency Powers?

I have been skeptical about claims that Donald Trump aims to set up a dictatorship  He and the Tea Party Republicans upon which he increasingly depends are more interested in destroying the authority of the federal government than increasing it, and his mind is far too disorganized even to figure out how he might do so.  He and William Barr have perverted the criminal justice system to help his friends, but they haven't done much with it to try to hurt his enemies, even though some investigations of former FBI officials are continuing.  That is not to say that all our liberties are safe. We have somewhere between 13 and 20 million undocumented immigrants in this country, and although I can't find complete figures, it looks like Trump will have deported about a million of them during his first term.  The remarkable Netflix series, Immigration Nation, which I am halfway through, shows how ICE is harassing and terrifying many of these people, including many who have caused no problems while in the United States, and even some veterans of honorable service in the U.S. military.  That situation is the fault of the Congress and earlier administrations who have not been able to give those people legal status, leaving them at the mercy of the executive branch.  The Trump administration is also trying to cut back on some protections for LGBT citizens.

This week, however, new developments definitely send a shiver down the back of anyone familiar with how the Nazi regime came to power.  A little history is in order.

The Weimar Republic had an exemplary democratic constitution, but it came to power in 1919 under most unfortunate circumstances.  The country had just lost a war and was losing several chunks of its territory.  its currency had lost most of its value, and the victorious allies were presenting a large bill for reparations.  Returning veterans organized themselves into paramilitary units to fight socialists and communist revolutionaries.  Assassins made a concerted and largely successful attempt to kill all the officials who had signed the Versailles Treaty.  Last but not least, the electorate was split into at least half a dozen major parties based mostly on class and religion, with none of them anywhere near a majority.  And in the second half of the 1920s, the Republic's two most important statesmen died: Friedrich Ebert, a Social Democrat and first president of the Republic, and Gustav Streseman, the liberal foreign minister who had worked hard to re-integrate Germany back into Europe.

The economy, on the other hand, had recovered somewhat from about 1926 through 1928, and in the latter year, a broad coalition of parties led by the Social Democrats took office.  Then in 1929 came the stock market crash on Wall Street, leading to the withdrawal of American capital upon which the Germans depended.  Their own economy began to come apart, and in the spring of 1930 the government coalition broke apart over the issue of unemployment benefits--that's right, unemployment benefits.  Heinrich Brüning  of the Catholic Center party took over as chancellor and called a new election.  it was a disaster. The Nazis came out of nowhere to become the most numerous party in the Reichstag or parliament, and together with the Communists--who were equally dedicated to the destruction of the regime--they were strong enough to block any effective government action.  With the cooperation of the President, Paul von Hindenburg--the most popular general of the First World War, who had little commitment to the regime himself--Brüning took advantage of an emergency provision of the Weimar constitution that allowed him to rule by emergency presidential decrees.  For two years, he passed the budget and every other important piece of legislation that way, before he himself was dismissed from office, given way to two relatively authoritarian chancellors of short duration, who in turn gave way to Hitler.

 Events have been moving far more quickly in the US in the last six months than they did in the late stages of the Weimar Republic. Thanks to the pandemic, we suddenly face one of the three worst economic crises in our modern history, with no real idea of how to end it.  And like the Reichstag in 1932, Congress cannot agree what to do about it, because it is so divided. The Democratic House has passed a new plan, but in the Senate, Mitch McConnell has refused to even try to compromise with the Democrats there, because he is apparently sticking to his rule of never allowing legislation to pass without a large majority of the Republican Senators behind it.  (This is of course exactly the opposite of the way responsible politicians are supposed to behave in a national emergency, but it is not surprising.)  McConnell in the last two weeks allowed two executive branch figures, Treasury Secretary Steve Mnuchin and White House Chief of Staff Mark Meadows--a former Tea Party Congressman himself--to take them over.  Their attitude, however, now suggests that they had no intention of reaching an agreement at all.

Instead, President Trump has announced that his administration is preparing executive orders to extend unemployment benefits, stop evictions, 
 provide other unspecified forms of assistance, and perhaps even declare a cut in the payroll tax.   The President seems to think that he enjoys the emergency powers of the Weimar president--although I'm quite certain that he has no idea of the history I reviewed above.  He has been encouraged in this belief by Berkeley law professor John Yoo, who wrote a notorious torture memo for George W. Bush, and who is now arguing that a recent Supreme Court decision allows a president at least temporarily to claim any power that he wants.  In this case the problems Trump is claiming could hardly be more unconstitutional, since the Constitution specifically reserves the right to appropriate money to the Congress. The Supreme Court's 5-4 conservative majority, however, has already allowed Trump to get away with diverting money appropriated for other purposes to his border wall, even though a circuit court had ruled that he could not do so.   Trump has remarked that he will be sued for doing this, but he probably enjoys the idea of Democrats going into federal court to stop him from handing out more unemployment benefits, stopping evictions,  or cutting payroll taxes.

In fact, I am concerned that this political ploy may work.  As Sol Berenson (Mandy Patinkin) said to another (fictional) president in the next to last season of Homeland about some drastic action she had taken and its popularity, "It showed balls. They like a president with balls."  Trump can't persuade the American people that he is on top of the fight against COVID-19, but he might persuade some of them that he took action to help them when the Congress refused to do so.  Having almost unanimously surrendered their power to discipline the President for impeachable offenses earlier in this year, the Senate Republicans are probably more than happy to surrender their share of the power of the purse to him now as well.  

At the moment Trump's re-election seems very unlikely.  If however he gets away with executive orders declaring how billions of federal dollars will be spent and does win re-election, I think we could move to some kind of authoritarian rule, at least where the budget and the operation of the federal government is concerned.  The failure of Congress, over decades, to handle many serious issues, has helped pave the way for this.  I hope we don't have to find out.


Bozon said...


Great post and argument. These are a few ideas based on your passages cited below:

"Brüning took advantage of an emergency provision of the Weimar constitution...DK"

"...the problems Trump is claiming could hardly be more unconstitutional, since the Constitution specifically reserves the right to appropriate money to the Congress...DK"

However he does have Executive powers, and "...the Senate Republicans are probably more than happy to surrender their share of the power of the purse to him..DK"

End of strong unconstitutionality argument. Congress' failure to act re funding in a pandemic is a national emergency.

"... he probably enjoys the idea of Democrats going into federal court to stop him from handing out more unemployment benefits, stopping evictions, or cutting payroll taxes..." These are exactly the kinds of things Hitler was able to do/

"At the moment Trump's re-election seems very unlikely." I disagree, compared to Biden.

If someone else stepped in, maybe a different story.

I can't help but be reminded of your old friend Thomas Childers' Great Courses lectures on this period. Wonderful in their way for me back then.

All the best

Energyflow said...

Always comparing everything to nazi times is not neccessary. This makes certain connotations. Emergency powers powers are always taken in crises. It seems however that from George Washington onwards successive governments have accumulated ever more centralized power particularly during crises. A centralized dictatorship democratically legitimized seems quite American as cognitive dissonance is none too difficult, like believing a half dozen impossible things before breakfast(Alice).

Unknown said...

Compromise and consensus are two way streets -- are you privy to the negotiations in claiming it's all Sen. McConnell's stances that are holding up additional federal relief? Anecdotally, I know three small businesses that can't get its workers to come back because the combined federal and state unemployment plus the "leisure" time is worth more than working 40 hours in a mask.

If anything, one would think the GOP would want to raid the piggybank even more to put a roadblock up to a potential Biden administration that will be pressured to implement expensive progressive policies. I live in a state where the Democratic dominated legislature has basically folded up like a cheap tent and is letting the Gov determine the fate of 1 million people on her particular whims and her "snitch on your neighbor for having more than 15 people over" hotline. The virus is still here, but the emergency conditions are not.