Emergency powers, the border wall and lessons from Germany

In declaring a national emergency to access funds denied by Congress to build a border wall, Donald Trump is not the first politician to invoke emergency powers to bypass the challenges of democratic governance.

Frustrated by increasing polarization and persistent log-jams in parliament, Paul von Hindenburg, president of the Weimar Republic — that short-lived German experiment in democracy born 100 years ago — increasingly resorted to the Weimar constitution emergency powers to circumvent the legislative process.

{mosads}In so doing, he enabled “presidential cabinets” to rule by decree without having to rely on, or being checked by, parliament. The consequences for Weimar democracy were devastating.

In side-lining parliament, Hindenburg fed the allure of a strong leader, unrestrained by the need for debate and compromise. More importantly, while seemingly upholding the letter of the constitution — after all, Article 48 provided a legal basis for his actions — extensive reliance on emergency powers undermined the commitment of German citizens to their constitutional order.

While many factors contributed to the downfall of Weimar and the rise of the Nazi dictatorship, the fact that Germans had become inured to living outside the spirit of their constitution facilitated the Nazis’ ability to dismantle what remained of Weimar democracy without significant opposition.

To be sure, the United States in 2019 is not Weimar. And yet, the demise of German democracy offers parallels we ought to heed.

Constitutional democracy rests on the conviction that constraining political power serves us better than a system in which power can be exercised “efficiently.” This vision is reflected nowhere more clearly than in the requirement that significant political decisions require the consent of the Senate, House and president.

Notwithstanding the legal fig leaf of the Emergency Powers Act, the president’s action constitutes a frontal assault on this principle and the values animating our political order. No matter where one stands on questions of border security, Trump’s use of emergency powers is not triggered by an event that justifies their presence in a constitutional order: a sudden crisis with potentially disastrous consequences that requires swift action.

The declaration is simply a response to a political impasse. Like Hindenburg, Trump may argue that his declaration falls within the letter of the law. But we ought not to let such arguments distract us from the fact that this use of emergency powers is contrary to the spirit of our Constitution.

Another parallel is more fundamental and concerns the response to Trump’s declaration. The move has met with opposition from Democratic and some Republican lawmakers. Many have pointed out that it will be difficult if not impossible to draw distinctions between the current situation and other issues on which political compromise is difficult.

Various measures to challenge the president are on the table, including a joint resolution by Congress and legal challenges. But such responses miss the larger significance of this crisis.

The survival of constitutionally-constrained democracy depends, in the final analysis, on its citizens. Those who exercise power are moored to the “rules of the game” by the anticipation that violations of constitutional norms will be met with an insurmountable loss of support, including by those who might share their political goals.

Courts can play a role in galvanizing such opposition. But the ultimate force that makes a constitutional system viable is a joint commitment by citizens to its rules and a shared belief that others value the constitutional order above specific policy goals and stand ready to defend it.

If the president succeeds because no broad, bipartisan coalition of political elites and ordinary citizens opposes his move, he will have undermined our faith that we are all committed to living by rules that govern the exercise of political power and adherence to which transcends our policy disagreements.

Just as Hindenburg’s reliance on Article 48 had a corrosive effect on Weimar’s constitutional culture, such an outcome will corrode ours. If politicians learn that constitutional boundaries can be stretched with little consequence and citizens no longer expect others to rise in defense of constitutional values, we will start down a path from which there is no easy return.

An apocryphal story holds that when asked what government the constitutional convention had given us, Benjamin Franklin replied, “A republic, if you can keep it.” Constitutional democracy is a fragile blessing. This current crisis demands an all-out effort to defend it.

Georg Vanberg is professor of political science and law and chair of the Department of Political Science at Duke University.

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