Rachel Kleinfeld writes in Just Security that the United States is already being ruled under a state of emergency. “It began under President George W. Bush and continued under President Obama. President Trump just has to ice the cake.”
She notes that ‘when people think of emergency rule, they usually picture Hitler’s declaration in Germany after the Reichstag fire or Colombia, which spent 37 out of 40 years in a state of emergency from 1952 to 1992. But Colombia got a new constitution in 1991, as did Germany after World War II.”
But these are exceptions, because “Their experience with severe emergency actually created a strong public reaction against the experience that helps to safeguard these countries.”
Kleinfeld points to a series of emergency cases compiled by the International Commission of Jurists from around the world, out of which Kim Lane Scheppele, has compiled “an ’emergency script’ that gets trotted out nearly every time, with remarkable stability in the actions and their order in various countries. Emergencies aren’t usually declared at the outset with a capital E – instead, they walk across the line slowly.
“In the early stages of emergency, legislatures and publics pay attention – no one wants to let democracy erode too much. But then, they get used to things. What was exceptional becomes normal. It gets normalized in ordinary law, which sets a new benchmark.”
Kleinfeld points to a recent example: “the U.S. Congress was careful to insert a five-year sunset clause into the Patriot Act. Five years later, Congress removed the clause and made fourteen of the sixteen clauses permanent.”
Following the “slow creep starts when the Executive branch slowly centralizes power:
Gradually, the courts are marginalized; this is often not abrupt, and the main actor isn’t always clear:
Over time, legislatures and courts both take themselves out of the loop and choose to opt out of the most political decisions, rather than being pushed by the Executive.
Militarization comes next, in that the military starts to perform jobs formerly done by civilians. Under President Obama, our nation’s cyber security was placed under military control, so that civilian sites had no governmental watchdog or protection, while all effort focused on protecting the .mil and other security domains. Trump’s placement of military brass in what are normally high-level, civilian positions is more public, but possibly less dangerous.
Other actions follow, such as reducing the openness of government to free information flow.
Banning assembly is another common tactic. Consider the bevy of anti-protest bills being considered by 18 states that make it harder to protest, create harsher penalties for arrested protestors, and in two cases, remove liability from drivers who accidentally hit protestors.
Procedural shortcuts such as governing through executive orders are another step.
Counter-intuitively, executive orders and Presidential memoranda were most used when partisanship in Congress was at its lowest point in the middle of the century, according to The American Presidency Project (cited by Kleinfeld). In recent administrations, Obama issued fewer than George W. Bush who issued fewer than Clinton who issued fewer than Reagan.