The infamous legal theorist Carl Schmitt said “Sovereign is he who decides on the exception.”
Schmitt doesn’t define “the exception,” however, because — paradoxically — the exception’s undefinability is what makes it truly exceptional. You can make provisions for some pretty far-out scenarios — several comedies, plus the reboot of that old tv show Battlestar Galactica, hinged on the whole government being wiped out and the Secretary of Education (or something) ending up as the President. That’s not an exception in Schmitt’s sense, because no matter how catastrophic the event which led to the situation, there are procedures in place to address it.
An exception is so far outside the norm that you can’t plan for it.
If you take this in a mild sense, Schmitt’s “exception” is commonplace. Hard cases make bad law, and it’s impossible for even the best-crafted, most comprehensive statute to consider all possible circumstances. When the judge lets you off the hook because the public benefit of you stopping a terrorist attack outweighs the crime of your double-parking in a school zone to do it, the judge is ruling on the exception. He’s sovereign in Schmitt’s sense… and should be. That’s why we have a judge presiding over court cases, not DecisionBot 5000.
If you take this “exception” stuff in a strong sense, though, it makes you wonder if the US isn’t much closer to outright collapse than most of us think.
Who decides on the exception in Current Year America? Though it’s tempting to say “Hawaiian Judges,” I ask you to look at the Commonwealth of Virginia. Coonman the Babykiller is still governor, and while that’s just par for the course — Democrats never resign — you could at least cite narrow legalistic grounds to justify it: Appearing in a Klan robe and / or blackface isn’t a high crime or misdemeanor. But Lt. Gov. Justin Fairfax is another story. Credible accusations of a serious crime have been made….
…but you know as well as I do what’s going to happen. The Virginia GOP is going to put on another production of failure theater. They’re holding “hearings,” the upshot of which is
A Republican lawmaker said he plans to invite two women who have accused Virginia Lt. Gov. Justin Fairfax of sexual assault to share their stories before a General Assembly panel…. Republicans accused their Democratic counterparts of thwarting efforts to form a bipartisan subcommittee to investigate. For their part, Democrats have said they favored a law enforcement investigaton [sic, and holy Christ, NPR, doesn’t anybody know how to proofread anymore?] that “should proceed unencumbered and outside the political arena.”
Emphases mine, but they hardly need emphasizing. “Share their stories.” “Form a bipartisan subcommittee.” Oooooooh, bipartisan subcommittee, the scourge of the criminal underworld!!!
Meanwhile, out in the real world, either a crime is alleged, or it isn’t. Both accusers have talked to law enforcement officials, but neither has actually filed charges… and the “talked to law enforcement officials” reports were dated more than a week ago. Which means, of course, that the cops are waiting for the curtain to fall on the VA GOP’s failure theater before quietly sweeping the whole thing under the rug: “A bipartisan committee investigated, and gosh darn it, they just didn’t find enough credible evidence to… do nothing, I guess, since they have no law enforcement authority. We do, but since the bipartisan committee says it’s a big waste of time, we’ll go back to doing nothing now. Call us when Brett Kavanaugh’s high school rape gang shows up at the class reunion.”
Clearly an exception has been made here, but by whom? The Boston DA? The Virginia GOP? The accusers themselves? (They certainly don’t need the cops’ permission to file charges). It matters, because the exception-decider has decided that Democrats are all-but-officially above the law.
Now take that a step further. What happens in a real, nationwide crisis?
To simplify things, let’s eliminate human agency. Let’s say some Worcestershire sauce gets into the embalming fluid down at the local morgue and we’ve suddenly got a zombie outbreak on our hands. Supposedly the Army has a plan for this, but the psychological impact alone would, I think, render this situation exceptional by Carl Schmitt’s standards. Who decides then? President Trump?
We’ve already got LGTBQ+ groups yelling that it’s homophobic to want to stop the Iranian mullahs from throwing gays off skyscrapers, because Donald Trump says that throwing people off skyscrapers because of their sexuality is bad. The “give peace a chance” crowd wants to nuke Damascus, because Trump wants to get our troops out of Syria. You know as well as I do that if Donald Trump cured cancer, the entire American politico-cultural establishment would call it “lymphoma genocide” and give themselves Pulitzer Prizes for reporting on all the poor oncologists Trump has put out of work.
Do you really want to stake your family’s lives on the notion that all levels of government will obey the President’s orders?
As it now stands, I’m afraid that “Hawaiian Judges” might be the best-case scenario when it comes to exception-deciders. The more accurate answer to “Who decides the exception?” might well be: Nobody. Nobody’s sovereign. Nobody’s really in charge.
If that’s true, the crisis is a lot closer than we think, and it’ll take a lot less than we expect to set it off.