Spotting Democracy’s Disruption in a Pandemic
By J.D. Mechelke
In a pandemic, our attention should be on stopping spread, sickness, and death. But there are less obvious places our attention should be. A state of chaos and exception like this pandemic is dry brush for autocratic fires. Pay attention to the exceptions. Watch for the distinctions.
The philosopher Giorgio Agamben compares a state of emergency to a “state of exception.” When out of the ordinary things occur—like war, natural disaster, or pandemics—the legal and political “norm” needs to shift accordingly. But this extra-ordinary state of exception often gives enormous power to a single person, someone who has taken control of the uncertainties inherent in such a time. States of exception, Agamben holds, helped to create the conditions that gave rise to the concentration camps of Spain, Cuba, colonial South Africa, and Nazi Germany (127-131).
While one cannot make comparisons to these cases, it’s important to notice that President Trump’s powers multiplied after declaring a state of emergency on March 13. This was a necessary step—our healthcare workers and institutions desperately need extra resources and the coordination of resource distribution that national government can provide. But, as Senator Schumer tweeted, “he [Trump] must not overstep his authority or indulge his autocratic tendencies for purposes not truly related to this crisis.”
A month later, Trump falsely proclaimed on April 13 that “when somebody is the President of the United Sates, the authority is total.”
Many of the exceptional regulations which enforce social/physical distancing are common sense. Epidemiologists are confident that social distancing is essential to slow the spread of the virus and preserve the healthcare system. At this time, border closings aren’t isolationist but rather beneficial in reducing viral reach.
However, consider exceptions that other countries have implemented. In Spain, excessive punishments for violating mandatory lockdowns have included possible arrest and fines up to €30,000. While maintaining lockdowns is often essential, excessive punishments are open to governmental and political abuse.
Governmental breaches of data privacy—like the harvesting of mobile phone location data by Israel and the public disclosure of private health data by South Korea—are employed as a means of “social control, even turning security agency technologies on their own civilians,” The New York Times reported. Israel’s Prime Minister Benjamin Netanyahu has been given authority to rule without oversight from the courts, and Hungary’s Prime Minister Orbán has been granted the authority to rule by decree.
While such exceptions may help curtail the virus, they and similar policies are vulnerable to executive overreach. Some California police made plans to use drone surveillance to enforce lockdowns, a practice some New Jersey and Florida cities have already begun. While it may be necessary now, the policy may also be exploited. And it’s the exploitation of exceptional power we should watch for.
Ditto for the new law in New York, which gives Governor Cuomo “unlimited authority to rule by executive order during state crises like pandemics.” While many of Cuomo’s actions have been responsible and necessary, democratic checks shouldn’t be discarded. Consider the precedent set for future governors who might not be as sensible. Similarly, on March 3, New York City Mayor de Blasio posted personally identifiable information about an individual infected with Covid-19 on Twitter. Does this invasion of privacy help us contain disease?
If state and city policies are open to overreach and exploitation, more so are those of the federal government. Trump has threatened to adjourn Congress in order to push through administration nominees. No president has tried suspending Congress before.
Heightening this concern, 2020 is not an inconsequential year in the U.S. We’re holding a presidential election and a census, which determines allocations of funds for a decade. The pandemic is likely to abate in the summer and resurge in the fall, and while it would be difficult for Trump to cancel the November election, he might be tempted to use emergency powers to advance long-sought goals popular with his base, like stricter border security and wider tax cuts. And while Congress and the Courts can check the president’s special powers, their checks have not been effective. Trump, for instance, was able to use emergency powers to divert money that congress had previously denied him to build a wall at our southern border.
To spot democracy-disrupting exceptions, be aware also of Trump’s enablers, like Attorney General William P. Barr. Tasmin Shaw, Associate Professor at NYU, warned that Barr has promoted legal theory with disturbing echoes to those of Carl Schmitt, whose ideas were embraced by the Nazis. As Shaw puts it, for Schmitt, “laws and constitutions didn’t arise from moral principles. At their basis, there was always a sovereign authority, a decision-maker.” On Schmitt’s view, the ability of this “sovereign” to make decisions and take control in states of exception is the only way to protect a nation facing an enemy.
Shaw compared Schmitt with Barr’s November lecture at the Federalist Society. Barr pointed to “critical junctures” when our country “has faced a great challenge” at times when a “strong, independent Executive” is most needed. To be sure, a strong executive is needed in a pandemic to coordinate policies so that, for instance, the states don’t have to compete on the open market for medical supplies. This leads to shortages and price gouging. But an independent executive, one not constrained by Congress and the judiciary, opens the door to government overreach and abuse of powers.
Barr’s DOJ wants to allow “chief judges to detain people indefinitely without a trial during emergencies.” Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers, warned that allowing courts to be suspended with no end in sight “is something that should not happen in a democracy.”
It’s not only the exceptions we need to watch, but also the distinctions. For Schmitt, the fundamental decision that the sovereign makes is the distinction between friend and enemy. Trump was drawing such lines in February when he painted Democrats as enemies who were perpetrating “their new hoax” of the Covid-19 disease. He was drawing them again on March 16, when he started calling the coronavirus the “Chinese virus.” Later that month, a White House photographer shared a chilling image of Trump’s hand-edited script. In black sharpie, Trump had crossed out “corona” and inscribed “Chinese.” Such racist rhetoric is in tune with the history of “outbreak-related fear-mongering.” In 1899, for example, an outbreak of the bubonic plague in Honolulu led to the burning of the city’s Asian neighborhoods under the racist assumption that they were “breeding grounds for the plague.”
Another Trump enabler, CDC Director Robert Redfield, has a disturbing history of making friend-enemy distinctions. During the 1980s and ‘90s HIV/AIDS crisis, Redfield advocated harsh distinctions between infected and non-infected persons that went far beyond medical necessity. While working for the U.S. Military, he helped design policies that could lead to denying medical benefits to HIV-positive soldiers, prosecuting them for “sodomy,” and removing them with a dishonorable discharge. His medically unnecessary policies raise the question of whether Redfield will employ medically dubious distinctions during this pandemic.
As Tasmin Shaw noted, in the Trump era, the coronavirus has become a malleable enemy useful in enacting policies open to power abuses: “this ill-defined enemy is the specter constantly evoked by the people Trump has chosen as his advisers and officials. Their mythic world-historical struggle has become detached from” reality.
How can we spot democracy’s disruption during a pandemic? Pay attention to the exceptions and distinctions. Democracy is precious yet precarious; it requires participation and vigilance. Covid-19 is immune to exceptions and distinctions. Our democracy is not.
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An earlier version of this piece was published in the Political Theology Network.
J. D. R. Mechelke is a Ph.D. Student at Drew University in Madison, NJ. He studies theological and philosophical studies in religion, focusing on political theology, poststructuralism, and queer studies in religion. He can be found on Twitter at @jdmechelke.
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