Like many contributors to the static surrounding the letter 47 US Senators sent to the Supreme Leader in Iran, my contributions have been terse and mostly ironic, playing mostly to the already converted. And, yet, in order to appreciate why Republican lawmakers feel emboldened to assume powers constitutionally delegated to the Executive, we need to take a few steps back from the instant case and take a closer look at the longue durée so to speak. For it is only in terms, if not of the long term, then at least of the intermediate term, that we can appreciate the gradual shift from a balance of powers among the judiciary, executive, and legislative, to a separation of and, I would argue, conflict between powers displayed in the letter the Republican Senators sent to the Iranian Ayatollahs.
First, it must be acknowledged that overreach is nothing new to American political institutions. Think only of Confederate disunion in 1861 or President Lincoln’s extraconstitutional response. We must also acknowledge the dramatic shift in political institutions that followed from union victory in 1865, which, however temporarily and inconsistently, reestablished the principles of federalism enshrined in the 1787 Constitution. Obviously, beginning in 1870-71, the southern states were quick to reassert their historic anti-federalist (and therefore historically anti-constitutional) claims. And, just as obviously, even the historic civil rights and voting rights bills of 1964 and 1965 have not proved sufficient to win approval of the Constitution among large segments of American society, not least among the Supreme Court justices charged with its legal defense. And, yet, particularly in the wake of the twin catastrophes of the mid-20th century, the Great Depression and World War II, there was a demonstrable tangible migration toward federalism throughout most of the United States. Agreement over federalism also meant that most legislators now concurred that law-making and enactment could proceed only in an atmosphere of cooperation and compromise.
Cooperation and compromise were no doubt facilitated by overall economic growth and general upward mobility, which were themselves largely the product of historically unprecedented federal outlays, not so much for the New Deal as for World War II. Bretton Woods and the Marshall Plan then set the stage for two decades of sustained economic growth globally and, therefore, for political compromise domestically.
Which helps to explain why when Leo Strauss penned his vitriolic screes in the 1960s and 1970s denouncing the democratic left, the democratization of the university, and the homogenization and dumbing down of mass American political and consumer culture, almost no one took notice; except, of course, his loyal students and followers at the University of Chicago. Since then, of course, the names of the long and growing list of committed Straussians have become household words: Allan Bloom, Paul Wolfowitz, Nicholas Kristof, Elliot Abrams, Richard Perle, and, obviously, Justice Clarence Thomas, Donald Rumsfeld, and Dick Cheney, to name only those who come immediately to mind.
The point is that these figures are truly agnostic when it comes to the relationships among the branches of government. When they occupy the White House, they will exercise and expand the power of the Executive; when they occupy Congress, they will exercise and expand the power of Congress; and when they occupy the judiciary, they will exercise and expand the power of the judiciary; because their guiding principle is Carl Schmitt’s “concept of the political”: the friend-enemy distinction:
If domestic conflicts among political parties have become the sole political difference, the most extreme degree of internal political tension is thereby reached; i.e., the domestic, not the foreign friend-and-enemy groupings are decisive for armed conflict. The ever present possibility of conflict must always be kept in mind. If one wants to speak of politics in the context of the primacy of internal politics, then this conflict no longer refers to war between organized nations but to civil war (C Schmitt 2007 [1932]: 26,32).
C Schmitt was not only Leo Strauss’ professor and mentor, but he was also the architect of National Socialist jurisprudence; the legal mind who helped codify the Führerprinzip, that is to say, in English parlance, the executive principle. According to this principle, that party or entity that in fact decides in cases of emergency is the executive. In other words, according to C Schmitt, it is not the fact that someone is the executive that authorizes them to execute the law; rather, the fact that they execute the law is what grants any party or entity executive status. More broadly, it is that party or entity’s decision over who is friend and who is foe that constitutes their political status.
When, for example, GW Bush and his team executed their decisions to invade Iraq or torture prisoners, their acts were a priori legal. What would have rendered them extra-legal or illegal would, on these terms, have been the successful prosecution of their decisions by one of the other two branches of government. In the absence of a successful challenge, however, their decisions make new law. This, in fact, was the point my colleague John Yu argued in the legal brief that offered legal cover for the Bush White House’s decisions. The legal argument was Straussian through and through.
It is perhaps confusing to now see the Republican legislature deploying this same Straussian (or actually Schmittian) strategy; since, by definition, the Legislative branch is not the Executive branch. But, John Yu’s brief holds good for any branch of government; or, for that matter, any individual who successfully differentiates friend from foe. In the absence of a successful contestation of another’s decision, that decision becomes law. And, therefore, by definition, those who execute the decision — by, say, inviting a foreign head-of-state to address Congress or authoring an official letter to foreign leaders contesting the validity of established law or policy — are not traitors, but simply law-makers.
Two points in conclusion. First, this latest expansion of the concept of the political should not be misread as a departure from the law. I would argue that that the legal precedent was already established when President Reagan successfully violated the established law set by the US Congress and traded arms for hostages using funds raised by illegal drug sales. Although these facts are known and were known at the time, none of the members of the President’s cabinet who deployed this concept of the political ever saw trial or prosecution for their clear violation of the US Constitution. Not surprisingly, those who developed and implemented this strategy were, to a person, outspoken Straussians. Which means that we need to go back at least to the Reagan Administration to understand these precedent-setting laws. In the absence of successful contestation by one of the other branches, their acts became law.
The second point is that based upon recent polling results, at least half of all voters are perfectly happy with this clear annulment of constitutionality and its replacement by the concept of the political. With respect to which, I will close with a breath-taking passage from Carl Schmitt’s Concept of the Political:
What always matters is only the possibility of conflict. If, in fact, the economic, cultural, or religious counterforce are so strong that they are in a position to decide upon the extreme possibility from their viewpoint, then these forces have in actuality become the new substance of the political entity. It would be an indication that these counter-forces had not reached the decisive point in the political if they turned out to be not sufficiently powerful to prevent a war contrary to their interests or principles. Should the counterforce be strong enough to hinder a war desired by the state that was contrary to their interests or principles but not sufficiently capable themselves of deciding about war, then a unified political entity would no longer exist. However one may look at it, in the orientation toward the possible extreme case of an actual battle against a real enemy, the political entity is essential, and it is the decisive entity for the friend-or-enemy grouping; and in this (and not in any kind of absolutist sense), it is sovereign (39).