Living in a perpetual state of emergency

Most of our lives are normally spent in normal circumstances. From time to time, great upheavals occur in the form of wars, major terrorist attacks or natural disasters. Most democracies provide for these contingencies in their constitutions by granting the government special powers in an emergency to take exceptional measures to deal with the crisis. But there is the proviso that these measures will be proportionate to the scope of the emergency, last for a limited period subject to parliamentary review and be adopted only in response to a real and clear emergency. We have seen throughout European history what happens when democratically elected governments begin to rely on emergency powers not just to deal with crises, but to transact nearly all day-to-day government business. Parliament becomes irrelevant and ends up being suspended altogether, the opposition is muzzled and governments using their emergency powers as a mandate for almost anything become increasingly authoritarian and repressive. We can think of the tail years of the Weimar Republic in interwar Germany when the last governments before Hitler’s coming to power ruled by the decrees of Reich President Paul von Hindenburg under the notorious Article 48 of the Weimar Constitution. In 1932 alone, the year before the advent of the Nazis in January 1933, no fewer than 58 were adopted while the Reichstag passed only 5 laws. In the two years of Chancellor Brüning’s government previously (1930-31), 50 emergency decrees were issued. The Reichstag had virtually stopped meeting altogether. The result was that real power was exercised by a small clique of reactionary figures from the aristocracy and the army huddled around President Hindenburg. They made and broke governments at their will and ultimately offered Hitler the chancellorship in the tragically mistaken belief that in doing so they would be able to control him. The great irony of the Nazis is that they came to power legally, but at a moment when the German economy was stabilising and the Nazi party was losing electoral support and fracturing. But the catastrophic outcome, if not inevitable, was increasingly probable once a democracy was run by anti-democratic means and by people who were certainly not democrats, but using the system to protect their own status and interests.

The Weimar example is a well-known one. Historians worth their salt will know of many others that blighted European democracies in the first half of the 20th century, from Mussolini’s Italy and Franco’s Spain to the autocracies that flourished in eastern Europe, particularly Hungary and Romania. Others like Britain and France had their fascist movements and extra-parliamentary protest groups on the far-right and far-left but managed to keep their parliamentary democracies functioning. By the way, this was also true of the United States where President Franklin Roosevelt steered the country safely through the Great Depression, despite having to suffer regular opposition from Congress and the Supreme Court which retained their independence and authority even at a time of national emergency, a banking crisis and mass unemployment. Roosevelt was also able to withstand populist protest movements led by the aviator, Charles Lindberg, and the Catholic priest, Father Charles Coughlin. The lesson seemed to be, as the Cold War came to an end, and democracies spread around the world on all five continents, that older and more established parliamentary democracies and their constitutions could withstand shocks and upheavals better than younger and less experienced ones. They could handle emergency situations, and occasional bouts of more authoritarian rule (for instance in wartime) but had the maturity to return to normal constitutional practice as soon as the crisis had passed. It was the emergency that justified the consolidation of power and not the consolidation of power that justified the emergency (or rather the manipulation of it for naked political ends). As democracy seemed for a time to be becoming the international norm in the 1990s, and dictatorships were falling almost everywhere, we could hope that old and new democracies would strengthen each other and that the checks and balances at the heart of the democratic model would hold firm against the efforts of demagogues and populists to override them.

But alas, this is no longer true of the world’s leading democratic power, the United States. Since returning to the White House last January, President Trump has issued over 150 executive orders to reshape America domestically and reorder its relations with the rest of the world. He has invoked national emergencies to impose tariffs on scores of America’s trading partners, send troops to the Mexican border and sideline environmental regulations, using powers intended for war or invasion. His latest move is to deploy thousands of National Guard troops to Los Angeles to deal with a small-scale protest against the forced deportation of migrants by the US Immigration and Customs Enforcement (ICE) agency which, up to now, has remained relatively peaceful. In what seems like an incredible overreaction, the Pentagon has decided to send a further 2000 National Guard troops and 700 Marines in what is tantamount to a military occupation of the city. As usual, Trump has massively hyped the notion of an emergency by portraying the protesters as criminals, extreme left fanatics, insurgents or even “animals”. Among his MAGA supporters, this self-portrayal of the strong leader who upholds law and order will undoubtedly play well, but it is the first time in 60 years in America that a President has deployed National Guard units in a state against the will of the state governor (in this instance, Gavin Newsom) and against the advice of the local police who fear that sending in troops to deal with a demonstration will only inflame tensions. Trump has even threatened to arrest Governor Newsom. By assigning all the blame to the Governor, he is pursuing the political aim of using the situation in Los Angeles to weaken a future Democratic challenger to the Republicans. Newsom has taken the Administration to court arguing that Trump’s actions are unlawful as there is no rebellion and that immigrants do not constitute an invasion force.

Thirty of Trump’s executive orders so far have cited national emergencies. He is not the first US president to have demanded additional powers, but he is using these exceptional powers on an unprecedented scale, fuelling perceptions that he is seeking to redefine the presidency as the supreme, even imperial authority, in the US political system. His real aim is not to respond to an unforeseen or real crisis but to bypass Congress and advance his political agenda. For instance, the US Constitution gives Congress the power to determine US trade policy, but Trump has ignored this and imposed swingeing tariffs on Canada, Mexico, China and the EU by invoking a 1977 law: the International Emergency Economic Powers Act. Ironically, this act was originally intended to limit presidential powers by confining an emergency to being “an unusual and extraordinary threat from abroad to the national security, foreign policy and economy of the United States”. But without any of these stringent conditions being met, Trump has invoked the 1977 Act 21 times already. His spokesperson, the always-on-message Karoline Leavitt, has told journalists that Trump has to fix “big problems” and has described trade deficits as a “national security threat”. Yet, tariffs designed to force currently 80 other countries to do trade deals with the US are policy and part of normal negotiation, not emergency action. A number of American companies took their complaints about the Trump tariffs to a New York-based court, the Federal Trade Court, which ruled that the Trump’s “Liberation Day” tariffs were unconstitutional as they bypassed Congress. But then, a US appeals court allowed the Trump tariffs to go ahead while it examined the merits of the case in more detail. The Trump administration has consistently complained when judges have struck down its executive orders or called for a stay of execution. It argues that “unelected judges” have no authority to oppose the will of an elected president with an electoral mandate from the “will of the people”. Yet, this argument is the antithesis of democracy because it gives a president with just over 50% of the popular vote (and for just four years) a right to disregard the views of the other 49% of the population. If only the view of the majority party matters, then that party increasingly becomes the state itself and unelected, but properly appointed, officials such as civil servants, police and judges are forced to pay obedience to it and forfeit their right to “speak truth to power”. At the moment, the FBI is investigating, on order from the administration, Miles Taylor, a former senior official in the Department of Homeland Security during the first Trump term, for contributing off-the-record to an article in The Atlantic which described the internal resistance to Trump’s policies. This anonymous expression of dissent is now being portrayed as treason. One case clearly “pour encourager les autres”.Congress passed the emergency laws without considering too much how they would be implemented or how to prevent presidential abuses. There are as many as 150 individual powers that the president has access to once an emergency has been declared. According to the Brennan Center for Justice, the president can suspend environmental regulations, approve new drugs and therapeutics, take over the transportation system and override bans on the testing of chemical and biological agents on humans. So now, it is incumbent on Congress to assert its authority and set clear limits. The Republican congressman, Don Bacon, from Nebraska, has drafted legislation to take back congressional power to set trade policy. In the last Congress, a Democratic from Connecticut, Richard Blumenthal, sponsored a bill to limit Presidential emergency powers to 30 days and then seek a congressional vote on their extension. Blumenthal pointed out that “relying on emergency declarations has been a path toward autocracy and suppression”. Yet his bill failed to gain majority support. During Trump’s first term, Congress tried to limit the President’s powers to build a wall along the border with Mexico, but the bill failed due to Republican objections. The courts have their role to play too. During Trump’s first term, the judges were able to block many of his executive orders, particularly regarding bans on citizens from a number of Muslim countries visiting the US. But Trump and his associates have had four years to prepare for his return and to identify workarounds for his key policy priorities making them more resistant to legal challenge. Moreover, the courts, now staffed with more conservative judges (particularly the Supreme Court), are more likely to go along with the administration. Although the Supreme Court has shown some backbone in ordering the administration to repatriate a migrant illegally deported to El Salvador. Yet, with Congress and Courts more pliable and state powers in law and order overridden, the outlook for the future of American democracy is increasingly uncertain. Will the other centres of authority in the US constitutional system (including the mainstream media also threatened by Trump and banned from White House press conferences) be able to fight back and regain their influence?

In truth, other Presidents have made use of emergency powers in the past. Notably, George W. Bush to deal with the terrorist attacks against New York and Washington on 11 September 2001 and Barack Obama to address the near collapse of the US banking system after the demise of Lehman Brothers in 2008. These were arguably real national emergencies requiring the president to have a free hand to take rapid action in conjunction with America’s key military allies and trading partners. The Authorization for Use of Military Force passed by Congress after 9/11 remained on the statute books for the next quarter century and allowed presidents to attack any of their adversaries anytime and anywhere. Far beyond Al-Qaeda and Afghanistan. Joe Biden invoked an emergency power to cancel federal student debt, although this measure was struck down by the Supreme Court. Even an avowed democrat like Franklin Roosevelt interned Japanese Americans during the Second World War; a later US administration issued a formal apology. But Trump is using emergency powers on an unprecedented scale and for largely fabricated emergencies against real or imagined enemies. Moreover, he seems determined to govern in this way for the rest of his term. His trade advisor, Peter Navarro, has said that if the courts block Trump from misusing the 1977 International Emergency Economic Powers Act, he will resort to other pieces of emergency legislation, including 18th-century laws such as the Insurrection Act or the Alien Enemies Act. The latter was recently used to deport to El Salvador Venezuelans accused of being members of the Tren de Aragua criminal gang, although the US intelligence agencies did not find evidence that this gang is controlled and directed by the government in Caracas.

“The price of democracy is eternal vigilance”, proclaimed the 19th-century liberal thinker, Jeremy Bentham. It is up to the American people to decide how much vigilance they want to exercise over the health of their own democracy, or whether they are willing to surrender it for a farrago of populist and protectionist policies that will make the US less respected abroad and more divided and less prosperous and free at home. America has experienced many massive convulsions during its short history, from the Civil War, the Great Depression, the Vietnam War, race riots and the civil rights movement, the 9/11 terrorist attacks, the 2008 financial crisis and the COVID-19 pandemic. Despite the domestic upheaval, it has survived these genuine national emergencies and restored the normal functioning of its democracy rapidly afterwards. It would be ironic to say the least if the US were to become an illiberal, authoritarian and nationalist country and society because of the instrumentalisation of a permanent set of fake emergencies designed to appeal to the MAGA movement and keep it mobilised behind Trump and his successors. But as Europeans look at the US with a mixture of hope and anxiety, they need also to ask themselves if the state of emergency mindset could spread within the EU as well. Hungary is already an illiberal democracy and the roots of this authoritarianism are present in some other EU member states as well. Emergencies do occur, of course, from time to time in Europe too. We saw many states take on extra powers during the COVID-19 lockdowns and mass vaccination programmes. We have seen the Schengen freedom of movement arrangements suspended in the wake of terrorist attacks, the pandemic and large flows of migrants across borders. Poland has closed its borders to Ukrainian agricultural products after protests from Polish farmers. Some of these actions are perfectly legitimate and temporary. Others have been done for populist reasons to placate a particular political constituency. Yet, at a time when many European politicians are talking about the prospect of a war with Russia in as little as five years, and adopting steps to put Europe on a war footing, with larger armies, ramping up war production, the return of conscription and civil defence and mass evacuation plans, the governments of the member states of the EU will be taking on more powers. All this is perfectly legitimate and undoubtedly necessary given the geopolitical context. Yet, anything that creates an emergency environment can tempt populists, demagogues and nationalists to exploit the situation. Moreover, extra powers seized by governments are not readily surrendered when the situation returns to normal. Even without Russia stoking up tensions, the rise of far-right and populist parties across Europe, and the general drift of European politics towards the right, amplifies those voices claiming that everything is getting worse and that the traditional centrist parties are losing control, just like the electorates who are portrayed as the victims rather than the agents of their own destinies. So even if we do not (yet) have a Trump-like administration in a major EU country clamping down on civil liberties and overriding parliamentary oversight, this is the moment for the EU to step up its monitoring of its member states to guard against the abuse of emergency measures and to ensure that such measures are truly geared to addressing the precise nature of the emergency. And only that emergency. The European Commission has a mechanism for assessing the rule of law within the EU, and in the past has imposed fines and withheld EU funds from Poland and Hungary (under Article 9 of the Lisbon Treaty) when their governments have interfered with the independence of the judiciary. This mechanism could now be usefully complemented by an Emergency Situations Monitoring Mechanism to assess situations in which member states request derogations from EU rules, norms and commitments due to exceptional circumstances or threats. Once implemented, the EU could closely monitor these measures to ensure that they remain on track and justified as the threat or emergency evolves. As there is no appetite for a new constitutional treaty for the EU at the present time, the Commission could reflect on how such an Emergency Situations Monitoring Mechanism could be introduced into normal EU business, how it could work and what kind of periodic reporting obligations member states would have. Perhaps the monitoring could be entrusted to a high-level group of experts along the lines of the Venice Commission that oversees compliance with European legal standards. A package of sanctions would need to be identified to give the EU the means to deter and to respond to abuses and also an instrument to enable the Commission to negotiate with member states agreements on the timetable and precise conditions for emergency legislation or government decrees to be lifted for a return to normal.

Hopefully, what is happening in the US at the present time will give an extra boost to Europe’s parliaments, courts, media, NGOs and public opinion more generally to be on their guard against the American mindset of perpetual emergency spreading to Europe. Those who willingly sacrifice freedom for the sake (or false promise) of security usually end up with neither. But the EU would make a bad mistake if it relies solely on the US experience as a salutary lesson for the average EU citizen/voter or on EU member state governments to police themselves. Too many European aspiring politicians are taking their leaf out of Trump’s book and imitating his MAGA movement. Fortunately, and unlike the US, Europe has an institution above the national government to uphold European rights and standards. It is time to start using it – before the next big emergency, real or fake, comes our way.