A disquieting Wall Street Journal column reminds us of what classical liberals and libertarians have been repeating: the state, however useful it may be, is very dangerous. With hindsight, it is surprising how so few people have taken these voices seriously, perhaps because the lobster has been boiled quite slowly. The problem is not unique to the United States but may be especially dangerous here given the enormous extent of the President’s power. Congress can be happily gridlocked; the president will not be (except possibly in his own mind, which doesn’t reduce the danger).
The WSJ columnist focuses on the Insurrection Act, last amended after the Civil War, and which Donald Trump thought of invoking during his first term (William A. Galston, “Donald Trump’s Insurrection Act Gambit,” Wall Street Journal, November 15, 2023). The columnist writes about that law:
Its scope, which is both broad and vague, gives the president enormous discretionary power. Key terms—insurrection, rebellion and domestic violence—aren’t defined. As an analysis by the Brennan Center shows, the president alone may decide whether these prerequisites for deploying the military have been met, and the Supreme Court has said it has no authority to review the president’s decision.
To be sure, a 1932 Supreme Court decision held that courts may review the lawfulness or constitutionality of acts the military performs after it has been deployed, but in the swirl of events basic liberties may be curtailed well before the judiciary can step in.
Consider this scenario: After a divisive campaign, a presidential candidate opposed by half the country is inaugurated, and a massive protest breaks out in Washington. While observers and authorities report that the demonstrators are mostly peaceful, the new president disagrees, federalizes the National Guards of Maryland, Virginia and the District of Columbia, and deploys them with orders to suppress the protests.
Other scenarios are possible. Trump has shown that he has no clear idea of the desirable limits to government power. The packing of the large police bureaucracies in DC with yes-men, as his myrmidons are now planning for a possible second term, would give him much more power than most Americans can imagine.
To those of us (I am not casting the first stone) who have been tempted to side with “the people” against the conceited and legislation-happy establishment, the surprise has a second dimension: the next blow to individual liberty may well come not from these people but from the mob excited by a demagogue. Lots of ordinary people, particularly in America, have kept a sense of liberty and decency. But a large number have been applauding a despot-to-be who has no political philosophy, no intelligence of this world, and is nothing but a rabble-rouser narcissist.
One-third of American voters think that the 2020 election was stolen just because he says so. He once boasted that he could shoot somebody on Fifth Avenue and his followers would remain loyal to him (it is worth watching the 15-second video). He hopes that his future Department of Justice and FBI would too. Fortunately, he has lately been meeting some resistance from the judicial institutions of this country, but he understands that his interest is to politicize them further.
This phenomenon of the betrayal of liberty by the common people for the comfort of following demagogues (after the betrayal of the establishment for the purpose of maintaining their control) reminds us of a remark by James Buchanan in a slightly different but related context (“Afraid to Be Free: Dependency As Desideratum,” Public Choice [2005]):
The thirst or desire for freedom, and responsibility, is perhaps not nearly so universal as so many post-Enlightenment philosophers have assumed.
In his contemporaneous book, Why I, Too, Am Not a Conservative, Buchanan showed more faith (the word is his) in the future of liberalism.
Neither Donald Trump nor Joe Biden ever tried, or thought of trying, or could probably try to think of trying, to abolish or seriously limit laws such as the Insurrection Act. They share the intuition that tyranny dwells on the other side of an arbitrary political-partisan line. Other “democratic” states in the world face similar dangers in different institutional contexts, but many would arguably follow America in despotism. (I put “democracy” in scare quotes because many seem to confuse it with competitive authoritarianism.) Not much imagination is necessary to see what could happen next.
Institutions, which are sets of formal or informal rules, have their logic. Studying that logic has been a major enterprise of political economy. Without the idea of constraining Leviathan, prospects are dark. History is replete with examples, often in sophisticated societies.
The reader interested in this topic might enjoy my review of the collection of articles assembled by Cass Sunstein in Can It Happen Here? Authoritarianism in America (2018): “You Didn’t See It Coming,” Regulation, Winter 2018-2019, pp. 54-57. Having just reread it, I found a paragraph that, if I had not written it, I would wish I had; please pardon my self-congratulation. About the chapter by New York University law professor Stephen Holmes, I wrote:
Holmes exemplifies the statist elite suddenly surprised that the vast power they advocated for, and granted to, the state is being used by politicians not of their own tribe. They don’t realize that tyranny, not nirvana, is what happens when people put all their hopes in government, as Anthony de Jasay argues (notably in his 1985 book The State). How can these elites complain so much about government’s actions and yet not question its power? They had taken over the government and were pushing their brand of soft fascism when Trump displaced them.
READER COMMENTS
Mactoul
Nov 26 2023 at 8:59pm
The fears (or hopes) re: Trump are entirely misplaced. Trump couldn’t even get his visa ban. Judiciary blocked him unlike the far more lawless actions of Obama presidency.
Jon Murphy
Nov 27 2023 at 7:45am
While it certainly is true that the courts have been an excellent bipartisan bastion of individual liberty and rule of law over the past few years, I don’t think that point in and of iself says we should be too sanguine about Trump. For one, as Pierre noted, the Court holds that it cannot review the President’s invocation of the Insurrection Act ex ante, only ex post. Further, illegal activities aimed as disrupting the legal and political process (the January 6th riots, plots targeting Supreme Court justices, etc) pose a serious threat.
So, I agree that the courts have been fantastic. But liberalism requires constant vigilance.
Craig
Nov 27 2023 at 10:53am
“For one, as Pierre noted, the Court holds that it cannot review the President’s invocation of the Insurrection Act ex ante, only ex post.”
Just wanted to make a brief comment here about the political question doctrine. Of course here Professor L is noting how Trump thought to invoke the Insurrection Act. This does go back to the Civil War and Lincoln acting in the absence of Congress who alone had the legislative power to suspend habeas corpus. Initially Lincoln suspended habeas corpus along the military line between, I think, Philadelphia and Baltimore because he thought the Union army would get accosted by people sympathetic with the South in MD. When Congress came back in session post-secession Congress passed a resolution approving Lincoln’s unilateral action.
After which there was noted a constitutional flaw inasmuch as Congress possessed the power to declare an emergency (suspend habeas corpus), but might not be positioned to do so. So they passed many items delegating authority to the Executive Branch like in this instance to invoke the Insurrection Act. But if Congress disagrees Congress can revoke the presidential declaration (though I am led to believe the President could VETO that resolution which seems off to me)
Ultimately I do feel that these kinds of legislative delegations should violate the non-delegation principle particularly in modern times with better communication and Congress should always be ‘in session’ to at least some degree.
As of right now though whether to invoke the Insurrection Act is a political question. The political question doctrine stands for the general proposition that the unelected courts should not supplant their decision making for items that are to be decided by the Executive or Legislative branches.
I can give decent example involving war powers which is in parallel. First is El Shifa and the second is Iraq II. So in El Shifa, Clinton made the determination that a pharmaceutical plant in the Sudan was a threat to national security and he put a cruise missile down that plant’s chimney. Oops, he was wrong, right?
“The political question doctrine bars our review of claims that, regardless of how they are styled, call into question the prudence of the political branches in matters of foreign policy or national security constitutionally committed to their discretion.” – El Shifa
So whether its the ‘war power’ or the power to suspend habeas corpus both powers are expressly vested in Congress and in both cases Congress has delegated authority to the President to act unilaterally absent specific statutory authorization and while I think its wrong for them to have done that because of the non-delegation principle, I’m not in charge of that and those who are think it perfectly acceptable. Beyond that question of course all you have is a political question and that I do agree is not the purview of the Judicial Branch.
Richard Fulmer
Nov 27 2023 at 7:23pm
The Union Army was twice accosted by southern sympathizers.
steve
Nov 26 2023 at 9:36pm
We have a number of laws that we now realize are poorly written as they rely upon people behaving with historical norms of behavior.
Steve
Monte
Nov 27 2023 at 11:06am
I, too, worry that “the state”, like a gamma irradiated brute, is becoming too big and powerful. You could easily omit Trump’s name and fill in the blanks with either Lincoln or FDR of whom many of the same things were alleged, yet they consistently rank in the top 3 of American presidents and our democracy survived their administrations.
Our electorate is ultimately responsible for rendering to itself a government of choice. Like Lincoln, the so-called despot, observed:
Pierre Lemieux
Nov 27 2023 at 1:30pm
You did not read anything of what you are talking about, did you? Somebody just told you so? Just as examples, here are the State of Georgia’s results of the hand recount and the statistical audit (READ THEM!):
https://sos.ga.gov/news/secretary-state-certifies-election-kraken-case-dismissed
https://sos.ga.gov/news/historic-first-statewide-audit-paper-ballots-upholds-result-presidential-race
https://sos.ga.gov/page/2020-general-election-risk-limiting-audit
https://sos.ga.gov/sites/default/files/2022-02/11.19_.20_risk_limiting_audit_report_memo_1.pdf
Thanks for making my point, but next time you post on EconLog, please make sure that you know what you are talking about and provide links; or just ask serious questions.
David Seltzer
Nov 27 2023 at 5:10pm
The probability of despotism is not zero, and is increasing. When King George III took the throne, there was, from my reading, little ani-British sentiment. But when taxes were imposed on the colonists to pay for the French and Indian war, their financial interests were decimated and their self-rule was threatened. The origins of the revolution. At what Pr(despotism) do the libertarian descendants of The Sons of Liberty engage the rascals? Will rule of law prevail or will the tyrants ignore court rulings.
bb
Nov 28 2023 at 12:27pm
Great post.
Comments are closed.