We in the United States are living under a state of emergency. But that’s nothing new. President Trump recently declared an emergency on the U.S./Mexico border, explaining that this was the quickest way to access funds for border wall construction that Congress had refused to appropriate. Some weeks later, Congress passed a joint resolution terminating the emergency, which Trump promptly vetoed. Make no mistake, there is an longstanding crisis on the border — the product of decades of callous border and immigration policy, exacerbated by the Trump administration — in which migrants die in appallingly high numbers attempting to cross into the United States. But virtually no one, beginning with the President, seems to take seriously the veracity of the declaration’s claim that the crisis “threatens core national security interests and constitutes a national emergency.” Condemnation of Trump’s declaration has been swift and widespread, both from the usual quarters and some not so-usual ones. But there is a context absent from this discussion, which leads many of these analyses to miss the broader implications of Trump’s emergency, and what it says about the state of democracy in the United States. The context is that in America, emergencies are normal.
Consider a 1973 Senate report on the termination of the national emergency, which began by pointing out that “since 1933 Americans have been living in a state of emergency. In fact, there are now in effect four presidentially-proclaimed states of national emergency… [which] taken together, confer enough authority to rule the country without reference to normal Constitutional processes.” The outcome of that process was the 1976 National Emergencies Act (NEA), which ended all existing states of emergency and attempted to impose some restraint on their use. The NEA, however, gave the president exclusive power in declaring an emergency and included no criteria delimiting what could and couldn’t count as an emergency. The Act was not entirely toothless: upon declaring an emergency, the president had to send the proclamation to Congress and explain the particular powers that were claimed. Unless extended by the president through another public declaration, all emergencies would end within a year of the proclamation. Finally, the NEA required Congress to meet six months after an emergency declaration, to “consider a vote on a joint resolution to determine whether that emergency shall be terminated.”
How has NEA fared since its passage? According to the NYU Brennan Center for Justice, presidents have used it to declare 58 national emergencies to date. Of these emergencies, 31 remain active today, which together authorize some 123 statutory powers that become available when a president declares an emergency. Meanwhile, not only has Congress failed to meet every six months to review and reconsider the president’s emergency declarations (as mandated by the law), Congress has not met a single time for this purpose in the 42 years since the passage of NEA. In short, Congress — by retaining the NEA after the Supreme Court’s 1983 INS v. Chada decision invalidated the veto-proof concurrent resolution portion of the bill, effectively removing any legislative check on executive declared emergencies — created a nearly unenforceable and open-ended grant of authority. The NEA authorized an alarming array of exceptional powers that can be invoked by presidents at will, with no meaningful ex ante or ex post checks. And Congress failed to follow through on even the weak forms of oversight that are built into the law, even as emergencies of all sorts continued to accumulate. Trump is acting within a framework that Congress has created, the misuse of which is well established. Well-intended criticisms of Trump’s fraudulent emergency declaration distract from the legislative and constitutional framework that have made such fraudulent emergencies a longstanding part of our ordinary institutions of governance. There is nothing to celebrate about Trump’s emergency declaration, but, despite its very real authoritarian potentials, it fits closely within a deeply entrenched pattern of emergency proclamation, accumulation, and normalization. Trump’s declaration differs, at most, in degree and not in kind from a series of phony emergency declarations-turned-permanent stretching back to Jimmy Carter.
One dimension of the “new” state of emergency is that the architects of a long-abused grant of authority show no inclination to withdraw the authority — the renewed abuse of which is now being decried. A second dimension is the conspicuous self-referentiality of Trump’s declaration, which is less a means of exercising unchecked and unencumbered executive power than it is about the flamboyant performance of the emergency declaration itself. This becomes clear when we look at some of the logistics of Trump’s wall. According to the White House, there are over $4 billion in various appropriations that are available for wall construction, on top of the $1.7 billion for barrier construction that Congress had already appropriated in the 2017/18 budgets. Only after all of these combined funds have been exhausted could Trump turn to appropriations made available by his emergency declaration. The administration is so far behind on actual construction planning that it’s highly unlikely it will ever touch those funds.
One of the many bizarre aspects of the recent government shutdown was that the administration had spent only 6 per cent of the $1.7 billion allocated for wall construction from the previous year’s budgets. There were no new projects that were ready to be undertaken, and many of the proclaimed wall construction projects were actually continuations of wall replacement projects begun under the Obama administration. As legal scholar Kim Scheppelle summarizes,
Trump may never need the funds that required the emergency to access, among other reasons because he has not planned ahead. He has no projects that are “shovel ready” so there is nothing specific on which to spend this new money that he has now earmarked for his wall. It will take some time to figure out where the new wall should go and how it will be constructed. In fact, one objection to Trump’s insistence on money for the wall in this last appropriations cycle was that he had no plans that had been vetted in the usual way, so the Congress had no idea what it would be funding. In short, there was nothing concrete, so to speak, to fund.
The fact that there was no financial need for the appropriations, and no plan for what to do with them, suggests that Trump’s primary interest was not so much emergency, but emergency theater.
The self-referentiality of Trump’s emergency helps explain his otherwise inexplicable behavior surrounding the declaration. Why announce publicly that there is no “real” state of emergency, and acknowledge that the declaration was merely a means of securing funding that he had already failed to secure from Congress? And why bother with a constitutionally dubious declaration when billions in funds already appropriated remain unspent? The answer is that the purpose of the declaration was not to build the wall by any means necessary. The purpose was to ostentatiously enact the role of a president willing to build the wall by any means necessary. Trump’s focus on playing the part of a strong, authoritarian president who will not let constitutional niceties get in the way of his wall was so consuming that it appears to have supplanted the need to actually start to build a wall with funds already appropriated, or even to make concrete plans for wall construction. We seem to be faced, in other words, with a theater of emergency politics uncoupled from the actual exercise of power or accountability. Congress, which has failed for three decades to withdraw the effectively unchecked and frequently abused power to declare emergencies, instead denounces Trump’s use of the authority that Congress granted—in a resolution that Congress has no power to stop it. And Trump’s own dramatic emergency declaration seems to be more an end in itself than a means to implement any concrete plans to employ the emergency powers that have been claimed.
So where does this leave our reflection on the normalization of emergency powers and the state of American democracy? First of all, it shows is just how thoroughly emergency powers have become not just an ordinary instrument of governance but also a campaign of public relations and image management that Hannah Arendt diagnosed in “Lying in Politics.” The fact that Trump’s emergency theater is better interpreted as a sign of executive weakness, rather than strength, does not diminish the threat it poses to constitutional democracy. This “imaginary enterprise,” in Arendt’s words, risks supplanting core features of democratic politics. Electoral democracy must center on processes of public opinion formation translated into law through the medium of elections. But the politics of image management, or what more recent political theorists have described as ocular democracy, replaces collectively binding legislation with spectacular performance and image-making.
In the U.S., where majoritarian democratic representation is fragmented by strong checks and balances, emergency powers have been a platform on which to build the administration state and the national security and surveillance state, as well as a medium for the plebiscitary and imperial presidencies. The first tendency is in tension with democracy because it distortedly frames democratic transformations as if they were temporary responses to urgent necessities. The second is even more undemocratic, since it shifts executive power away from democratic accountability and removes large spheres of executive power from democratic decision-making altogether.
The normalization of emergencies has played a deep role in both of these anti-democratic tendencies. But to see it clearly, we have widen our lens beyond Trump’s recent emergency declaration and look at the relationship between the core provisions of the War on Terror and the dangers we now face under Trump. After 9/11, the legal category of “unlawful enemy combatant” was resurrected to justify indefinite detention, and in some cases trial by military tribunal, for detainees in the War on Terror. Justified at the time as temporary emergency powers, the legal instruments of the War on Terror now figure as permanent features of our constitutional normalcy — one that has preceded Trump and helped make his rise possible. By 2016, as Trump’s presidential candidacy was gaining steam, the indefinite detentions without any trial whatsoever at Guantánamo Bay were ongoing. The military tribunals there were no longer exceptional executive orders but had been codified by Congress during the Obama administration. And the authorization for open-ended war first passed in 2001 remains in effect, despite catastrophic abuses, and may be substantially strengthened. Above all, the idea that certain crimes, particularly when committed by Muslims, do not merit trial in ordinary courts but can be tried in extraordinary military tribunals, if they merited trial at all, remains the most significant legacy of the Obama administration’s failure to end the War on Terror.
This is the platform on which Trump’s return to explicitly xenophobic criteria for determining exclusion and inclusion—including the Muslim travel ban and the “zero-tolerance” detentions of asylum seekers along the southern border — is built. Surveying the collapse of liberal democracy in interwar Europe, Hannah Arendt observed,
[L]aws that are not equal for all revert to rights and privileges, something contradictory to the very nature of nation-states. The clearer the proof of their inability to treat stateless people as legal persons and the greater the extension of arbitrary rule by police decree, the more difficult it is for states to resist the temptation to deprive all citizens of legal status and rule them with an omnipotent police.
There is no reason to think that our own attempt to draw clear, bright lines around “the exception” will be any more successful. We need principled, broad-based, and militant resistance to the Trump administration’s authoritarian attempts to recreate a “state of exception” along explicitly racist and nativist terms, at our borders and inside them. To do so effectively we must look beyond Trump’s emergency theater and confront the normalization of exceptional powers that has been in process well before he came to power.
Ian Zuckerman teaches politics at Regis University in Denver. He is writing a book about emergency powers.
