Reading this post by David Cole—on Obama’s unauthorized war on ISIS—my mind drifts to the German political theorist Carl Schmitt.
Schmitt famously defined the sovereign as “he who decides on the exception.”
Long established and stable constitutional regimes presume and rest atop legal routines, social patterns, political order, normalcy: “For a legal order to make sense, a normal situation must exist.” In such situations, political authority is constrained by a set of rules and its exercise of power is almost as predictable as the social order itself.
But there are moments in the life (and death) of a society that exceed the boundaries of these laws and routines, moments, as Schmitt says, when “the power of real life breaks through the crust of a mechanism that has become torpid by repetition.” Such moments are ones of grave existential threat. The decision as to whether we are in such a moment—that is, whether we are confronting “a case of extreme peril, a danger to the existence of the state”—is not self-evident. Such a decision cannot be made in accordance with, cannot be prescribed or contained by, these laws and routines. Such a decision does not emanate from a constitutionally authorized office or conform to a preestablished list of specified conditions. It must instead by made ex nihilo; it necessarily “emanates from nothingness.” It is a decision that, in the very doing, sets out and enacts the grounds and norms of its own justification.
He who makes such a decision is sovereign.
I was reminded of Schmitt’s teaching, as I said, by Cole’s post on Obama’s unauthorized war on ISIS. Here’s Cole:
In his speech, President Obama avoided the word “war,” but that is the more common word for the kind of sustained military campaign he described. And under our constitution, the president cannot go to war without congressional approval except in narrow circumstances not present here.
Obama has given no indication that he intends to seek Congress’s authorization for airstrikes. There has been some talk of obtaining approval to send troops to train Iraqi forces, but Obama apparently thinks he doesn’t need any authorization to drop bombs from the sky with the aim of killing human beings—even in a country, Syria, where he plainly will have no permission from the sovereign to do so….On Meet the Press this Sunday, Obama claimed, “I have the authorization that I need to protect the American people.” The host, Chuck Todd, didn’t press him on where that asserted authority comes from. Congress certainly has not given it.
Under the Constitution, whether to use military force is Congress’s decision, not the president’s. The framers gave Congress the power “to declare war” and even to authorize lesser uses of force, through what were at the time called “letters of marque and reprisal.”…
There is one situation in which the president can use military force without congressional authorization—when responding in self-defense to an attack or an imminent attack. But Obama has not made that argument in announcing the campaign against ISIS. As he said on Meet the Press, “I want everybody to understand that we have not seen any immediate intelligence about threats to the homeland from ISIL. That’s not what this is about.”
I am quite sympathetic to Cole’s argument, but something about its relation to American history gives me pause. Take Latin America. In the last two centuries, the United States has intervened militarily in that continent literally dozens of times. In Mexico, Panama, El Salvador, Nicaragua, Guatemala, Haiti, Dominican Republic, Grenada, Cuba, and more. It has sent troops, occupied cities, killed foreign soldiers, overthrown governments, created new governments, and governed militarily. The history of the United States in Latin America is of one damn war, at least as Cole understands that term, after another. And only two of them declared by Congress. Both in the nineteenth century.
Thinking about Obama’s war on ISIS in the context of that history, it’s hard for me to summon anything but a “shocked shocked” indifference to the president’s disregard for the Constitution. I’m not proud of that, and I’m not trying to proffer a knowing cynicism against Cole’s quite sound legal arguments. It’s just the history that overwhelms me.
Which brings me back to Schmitt.
Against virtually everything Schmitt argued in Political Theology—he does offer this throwaway line as a parenthetical observation: “not every extraordinary measure, not every police emergency or emergency decree, is necessarily an exception”—in the Unites States, the legally and constitutionally prescribed path to war has been the exception, and the unauthorized, extra-legal (if not illegal) military expedition has been the rule. At this point, he who would decide the exception—that is, he who would be sovereign, he who would make a decision that “emanates from nothingness”—would be he who seeks a constitutionally authorized congressional declaration of war.
We thus confront a situation of upside-down Schmittianism, in which war is “the crust of a mechanism that has become torpid by repetition” and law “the power of real life” that might break through. Which could be grounds for hope, were it not for the fact that the law is almost as lifeless as the victims of America’s torpid, repetitive wars.