As we all know, just after declaring a national emergency, the president said that he didn’t need to. Many think his comment undermines his declaration because emergencies tend to be compelling. These critics, however, assume the rule of law.
In saying that he didn’t need to declare an emergency, the president merely stated the facts of life under an autocracy: the autocrat’s will is the only drama, the only question before the body politic. His will, in fact, constitutes the entire public realm.
The distinction between the rule of law and of one man’s will is the point of the emergency. Hamilton refers to this distinction in the Federalist in an ironic oxymoron: “favourable emergency.” A tyranny, he warns, can start with an emergency declaration. We know it happened later in Germany.
The president’s comment this week about the primacy of his will is similar to his last-minute change of heart in December concerning Congress’s compromise. An autocrat’s caprice draws attention to his will, and this earlier caprice shut down the government, costing our economy tens of billions of dollars. Many call this cost a waste, but not so: those billions, far exceeding the cost of the wall funding he then sought, helped to fund our education in autocracy.
The president’s comment after his declaration frames the issue properly. The question is not whether an emergency exists at our southern border; the question is whether the president wills that an emergency exists.
The president’s proper framing of the emergency declaration gives every senator, congressperson, judge, and justice that may be asked to vote or rule on the matter a stark choice: do we remain under the rule of law, or are we now ruled by one man’s will?