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Society & Culture

“Vetocracy” Poses a Constitutional Crisis for the US

Apr 03 , 2019
  • Tian Feilong

    Associate Professor, the Law School of Beihang University

The Unites States seems to be on the verge of a constitutional crisis, rather than a national emergency as claimed by President Trump. In an act of unprecedented creativity and headstrong determination, President Trump cited the 1976 National Emergencies Act, and declared a national emergency to unlock billions of dollars in federal funds to build a wall on the southern border and beef up border security, bypassing Congress after lawmakers refused his funding request. President Trump has blamed immigration for increasing crimes and riots, thus posing a grave threat to national security and the wellbeing of the American people—but this is all a cover for an attempt to fulfill his 2016 campaign commitment, paving the way for his reelection campaign.

Speaker Nancy Pelosi stands firm against this perceived abuse of presidential powers, and argues that evidence to justify this emergency is insufficient or nonexistent, rendering the declaration unconstitutional. She further has raised the possibility of adopting a special motion to override the veto. But the effort would fail to garner the two-thirds majority needed and the legislative effort to challenge the presidential veto would thus fail.

First and foremost, the fundamental issue here is whether the US is truly in emergency status or not. As far as the Democrats are concerned, crimes at the Southern border are merely common criminal offenses punishable by existing laws. There are no grounds to justify a national emergency — probably a view held by President Trump himself, but which he cannot admit so publicly because doing so would deprive him of the pretext to ask for Congressional appropriations.

President Trump’s political move does not represent any genuine legal concern, but a reflection of the dynamics in the US political system characterized by checks and balances. To be more specific, the America First policy espoused by Trump is on a collision course with the Democrats’ ideology of universal human rights. The diverging values of the two parties have repercussions for the US political system where the executive and the legislative branches have to confront and cooperate with each other. Under normal circumstances, the Congress has every right to scrutinize the government’s budget bill in line with its vested constitutional power. But checks and balances may go too far when congressional power constrains the government’s ability to execute policy, even leading to a government shutdown. Francis Fukuyama’s worry that America may slide into a dysfunctional “vetocracy,” as elaborated in his book Political Origins, again shows its relevance. Vetocracy is a dysfunctional variant of the imperiled political system of checks and balances, when the executive branch and the legislature fail to reach basic policy consensus, and the governing group as a whole sees their shared rationality and will to cooperate unravel. Trump’s resort to a national emergency declaration as an unconventional means of seeking funds represents an effort to break the constitutional deadlock. Trump aims to execute his political will in a manner he regards as accountable to the American people, while Speaker Pelosi stands her ground on what she views as the foundation of US values. Pelosi is protecting universal human rights, an extension of American values, from the sword of separation wielded by Trump.

As far as a democratic political system is concerned, it remains a matter of political philosophy and constitutional studies whether the government should be responsible only for the people within its own system or to people beyond its borders. According to modern democratic political philosophy, it is largely agreed upon that a democratic government is only responsible for its own people, with no obligation to show such generosity to people beyond its borders. That is to say, civil rights are a real and sufficient justification of purpose for a democratic government, while human rights account for the naturally endowed rights of human beings. In the modern and post-modern eras, the culture of human rights and associated constitutional protections have continued to evolve, with human rights increasingly taking precedence over civil right as the foundation for democratic rule. The EU and the US under the Trump administration serve as the poster child cases for this development. This concept of borderless human rights, and related democratic and institutional arrangements, are eroding the welfare and social resources of the US as a country, while feeding material demand and a dependent mindset among aspirant migrants, making it more difficult to assimilate immigrants or keep them from committing offences. That outcome is precisely what Trump yearns to keep the US from, but what Pelosi strives to maintain or reinforce as the link between the West and other countries. Trump wants barriers in trade and immigration, rendering universal values limited, barricaded behind institutional constraints.

The US under Trump’s watch is a democratic country nonetheless, but it no longer takes human right as on the same par as civil rights, in a reversal or de-globalization of American values, driven by conservative inclinations underlying the social values in the country, and is on an inevitable course to reshape American value and political dynamics. But it will wreak havoc on the American spirit, as the fight unfolds between the nationalist brand of democracy vs. the universally-minded democracy—or the nation-state vs. the “civilization-empire.” The fight will be fierce and sobering, with implications reverberating across the world. Pelosi stands for the idealism of the Democratic Party, which is also the part and parcel of American morality and ethics, which runs deep and entrenched in the American DNA. Trump and Pelosi are each the embodiment of a side of the American zeigeist, and the debate over the constitutionality of the national emergency order is a political manifestation of an ideological rivalry between the two groups.

In the meantime, it needs to be recognized that this conflict stems from an unfair and uneven wealth distribution in the course of globalization. A US-led and US-centric globalization does not deliver universal peace or sustainable peace and prosperity. Erecting barriers will not address the underlying problems and grievances arising from unfairness and poverty, but only serves nationalistic interpretation of national interests. The EU opts for a more open and humanitarian path, albeit with signs of gradual reversal. China stands out as the country that pursues a shared community for mankind through its Belt and Road Initiative, underpinned by the belief that shared peace and development is the only viable solution.

As the constitutionality debate unfolds in the US, anti-immigration attack by a white supremacist in New Zealand caught headlines. These two episodes are driven by the same mindset, but neither could possibly address the grievances of unfairness and poverty that our world faces.

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