Barack Obama’s Upside-Down Schmittianism

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.


  1. BillR September 18, 2014 at 9:42 am | #

    One thing is for sure: never-ending pettifoggery over the Constitution won’t get anyone anywhere and if history is any guide things will likely be worse under an ex-professor President. An interesting take on the matter from someone mentioned here a few days ago.

  2. Frank Wilhoit September 18, 2014 at 9:45 am | #

    This is my question for Herr Professor Doktor Schmitt:

    How do we determine, by observing a litter of kittens, which of them is sovereign?

    • BillR September 18, 2014 at 10:07 am | #

      Perhaps looking for a sign or two will help.

      • Frank Wilhoit September 18, 2014 at 12:34 pm | #

        My point, if I had one, was that beyond a certain threshold of institutional decay, there is no longer any premium on the power to perform an acte gratuit. Barack Obama? Cliven Bundy? The guy in tomorrow’s headline? Anyone can spit in the wind. The word “sovereign” rings very hollow these days.

  3. Escott September 18, 2014 at 11:14 am | #

    And picking up the thread of this topic, nowadays the Sovereign is hidden more than in Schmitt’s day. The President and Legislate, it could be argued, fulfill an undefined “sovereign’s” will by a process seeming more related to the evolution of human nature than the transforming power of political thinking. Even at local levels the elected representatives of the people manage the people in the interest of developers more than the reverse.
    There’s something in human nature harking back to canines licking the face of the dominant wolf. For me this explains the multitude of pundits in Media so eager to repeat the “talking points” of this shadowy “sovereign” .Most other people don’t care unless they feel oppressed (paraphrasing Machiavelli’s observation)
    Yes, sometimes the People throw off the Law also, but not like Schmitt theorizes, exampled by the recent NFL Rice girlfriend,now wife knock out scandal. Certainly the power of punishment has shifted to the People, the “sovereign” by Schmitt’s definition, in this particular issue.

  4. jonnybutter September 18, 2014 at 11:56 am | #

    It’s more than an elective affinity Leo Strauss et. al. have for Schmitt: the latter really share his essential contempt for the idea of law; or, to put it the other way, share his interest in the aggrandizement of the sovereign. Schmitt might imply, by describing the situation as ‘exceptional’, that seizing power as sovereign can’t happen routinely. But what is this part of his theory about, after all? It’s that the Sovereign, not the law, defines power.

    Funny that so many otherwise very different people share a basic outlook on life: without war and struggle for dominance, life is one long bout of torpid ennui. I think the western world is divided between people who are like that (which I would bet consists of about 70% men) and people who aren’t. The hope I hold out is not for the law, but for some at least partial ascendance of people who don’t need external mayhem to still feel internally vital. It’s too much to hope for that the first kind of people will realize that their depressive, bleakly unimaginative outlook on life is *their* problem, not humanity’s as a whole.

    I think there is no crust of normalcy of extra legal wars waged by the US, because it is never affirmed (never affirmed to be normal or abnormal or anything else): responsibility is entirely forfeit, right down to the very name of the agency which wages the wars. The goal of a politician in the US is: to be sovereign while completely avoiding accountability for what one does. Executives, who come and go, are usually more literal than legislators, so they (execs) long to exercise direct control over *something*, and congress sort of lets them, if it’s war. But it’s never positively affirmed, which something lawful, by definition, is. And other than war, a president is just as caught as everyone else in the seemingly infinite web of complex overlapping jurisdictions and authorities that is our federal presidential system.

    I don’t see exactly torpor attendant to the regularity of US extra legal wars. I see just a vacuum.

    • sadbillionaire September 18, 2014 at 4:38 pm | #

      Schmitt et al *love* the law–passionately. They hate democracy. A parallel, maybe, with Malebranche–who certainly loved God. Too much.

      Thus, Walter Benjamin’s famous gloss on Schmitt (“the tradition of the oppressed teaches us that the state of exception is the rule”) becomes more and more relevant: the condition of the oppressed (of the stateless, the colonial subject, women, minorities) is now almost everyone’s condition. This is, at least in part, a result of Obama’s all too right-side-up Schmittianism.

  5. jonnybutter September 18, 2014 at 6:39 pm | #

    You are right, of course, sadbillionaire. They love the law (‘too much’, assuming that just truly ‘loving the law’ wasn’t weird enough) and hate democracy. I said that they have contempt for the *idea* of the law. I failed to make it clear what I meant though, which is: the idea of law as a systemic expression of ethics – e.g. thou shall not kill. Not the law-as-something-you-manipulate to make your crimes legal. Clumsy on my part, since they are both The Law. But the ethical foundation of the law is what I would call the ‘idea’ of law. “Kneel thou before me!” might be the law, but I wouldn’t call it an idea

    Of course they ‘love the law’ in a weird, fetishistic way – they love it detached and for its own sake, springing from nothingness (i.e. springing from Authority). For its power to lie in a profound way. They love the law because it makes ethics fungible, just as money, in what I hope should be called ‘late capitalism’, makes *anything* fungible (i.e. everything has a price).

    • Frank Wilhoit September 18, 2014 at 7:30 pm | #

      The law is that thing which protects members of in-groups, but does not bind them; while it binds the members of out-groups, but does not protect them.

      This is why we see two entirely disjoint strategies being pursued: a strategy to alter the law, and a strategy to carve out exemptions from the law.

    • jonnybutter September 18, 2014 at 7:41 pm | #

      [ btw, I know it’s obvious that political theory is not my field of expertise, and I don’t endorse vulgarization, but, things being the way they are, we need also to worry about the pejorative antonym to ‘vulgarization’ (whatever that word would be). Because there is a whole lot of baffling-and-bewitching-with-bullshit going on in our world, and there ought to be a technical term for it. Anybody know?]

  6. Bart September 20, 2014 at 12:18 pm | #

    Your list of our Latin American exploits reminds me of the extensive pearl-clutching over Putin’s concern over Russia’s western borderlands (aka Bloodlands South) being encroached by the EU and NATO.

    What he needs is a version of the Monroe Doctrine about that area.

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