Constitutionality – Scott's Blog

Donald Trump's continual declaration of national emergencies that he uses to declare executive orders of dubious legitimacy harkens back to similar usage in Germany following World War I.

This was the first so-called presidential cabinet of the Republic - a government that wasn't elected by the Reichstag but appointed by the president. This break with parliamentarism was made legally possible by the instrument of an emergency decree, included in the constitution to keep the state capable of working in an emergency. The circumvention of majority rule in the formation of the government would consequences for future developments, since it meant that the already bruised reputation of parliament deteriorated still further. With the displacement of the strongest faction by far, and the installation of a minority government in favour of conservative elites, Hindenburg and Brüning took a clear step towards an authoritarian state. To see it as necessary, as many did at the time, meant reducing democracy to a fair-weather form of state, incapable of putting workable majorities.

- Jähner, Harald, "Vertigo: The Rise and Fall of Weimar Germany", p272

Hindenburg was beyond his expiration date by the time he appointed Hitler chancellor of Germany in January 1933 - he died in August 1934 - but the real damage was ruling by emergency decree and not working through parliament, as difficult as that would be. Hindenburg reverted to his Junker proclivities, and any disagreement with his expectations became an emergency. When the country became ungovernable, Hindenburg appointed Hitler chancellor, believing he could be controlled due to the limited Nazis in the cabinet.

Most importantly to know, Hitler accession to chancellor was completely legal and legitimate within the constitution of the Weimar Republic; in fact, the constitution was technically in effect throughout Hitler's rule until the collapse of the civilian government following Germany's defeat in World War II. Hitler used the powers of the chancellor to establish an authoritarian state, all completely legal.

The question is whether Trump is attempting to do something similar, to use emergencies and executive orders as a Congressional end-around. Congress only passed 36 bills which were signed into law, well below the annual average of 150-200 bills per year and one of the lowest this century. Is this a trend or just an anomaly as everyone - state and federal politicians, the judicial system, the civil service - figures out how to force Trump back into the expected behavior of a president OR is this the beginning of a US authoritarian government. Courts, especially the Supreme Court, have rarely pushed back, giving Trump the impetus to continue his ways.

And this is only year 1 of his presidential term. Shit.

Image Credits

"Paul von Hindenburg in 1933" by Codexbox1 is licensed under CC BY-SA 4.0.
"Donald Trump" by Gage Skidmore is licensed under CC BY-SA 2.0.