Quinta Jurecic on Lawfare surveys Trump as an actor in the Carl Schmitt drama. Herr Schmitt was a German legal theorist of the early 1900s who formulated the theory of exception, the idea that the sovereign can choose to act outside the law in exceptional circumstances. After discussing the concept and its problems, Quinta brings it around to our President-elect.
Trump has given us genuine reason for concern that he may actually represent the Schmittian nightmare feared by many on the left and in the civil libertarian community after 9/11. His offhand campaign promise to House Republicans to uphold the Constitution’s nonexistent Article XII raised concern at the time over his lack of textual knowledge of the document, but even this isn’t the important thing. Not every President has had detailed textual knowledge of the Constitution, though most have been better at glossing over that fact than has Trump. What’s key is Trump’s apparent lack of understanding of the document’s significance and power as the bedrock of democracy and the rule of law—an understanding that normally commits the President to behaving in a constitutional fashion by heeding the good-faith advice of legal counsel.
Trump, on the other hand, has displayed precious little respect for these underlying constitutional principles: recall his hedging on whether he would accept the results of the election, and his eventual declaration that he would do so “if I win.” And to paraphrase an astute acquaintance I spoke to in the days after the election, while Trump might want to be a good President for the American people, he has shown no sign of wanting to be a good participant in the American system of governance. Her comments were echoed recently by Representative Justin Amash (R-MI), who criticized Trump for his “extra-constitutional” view of the presidency: “I think he just views the job [of the presidency as] … outside the Constitution,” Amash said. “I don’t think our framework [of law] in this country really comes into play when he’s thinking about how the job should operate.”
Amash’s formulation is apt: think of Trump’s statement to the New York Times that “the president can’t have a conflict of interest,” and therefore can’t be in violation of the Emoluments Clause. As many have noted, it’s hard not to hear the echoes of Nixon’s infamous declaration, “When the President does it, that means it is not illegal.”
“Extra-constitutional” is also a good way of describing Carl Schmitt’s sovereign power, which is not exactly above the law but, rather, outside it. The sovereign determines when law applies and to whom, and the sovereign’s decision is unreviewable by the courts or any other actor because it exists outside the structure of legal review entirely.
So let’s consider the case that Trump might be the real Schmittian. You can see hints of such an extra-constitutional self-understanding not only in Trump’s apparent lack of respect for the Emoluments Clause, but also in his contempt for the work of the courts.
She then goes on to examine the Judge Curiel and “lock up Clinton” controversies. There’s a lot of good stuff here, and it leads me to think the Trump Administration is going to be marked by a heckuva lot of litigation – and quite possibly some refusals to accept Presidential orders by the bureaucracy, and a subsequent figurative bloody nose for Trump.
