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At Least We Can No Longer Pretend That There Is No Crisis

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Reverend J. Ostermann of New York, executive director of the Committee for Catholic Refugees from Germany, stands at a microphone of radio station CFCF at an anti-Nazi rally of the German-Canadian League at the Montreal Forum in Montreal, Quebec, Canada. (By Conrad Poirier – This image is available from Bibliothèque et Archives nationales du Québec under the reference number P48,S1,P4094, Public Domain, https://commons.wikimedia.org/w/index.php?curid=8775676)

Zolan Kanno-Youngs has an important piece in the Washington Post about the legal authority for the Trump administration’s deployment of little green men* in Portland.

After President Trump signed an executive order directing federal agencies to send personnel to protect monuments, statues and federal property during continuing protests against racism and police brutality, the Department of Homeland Security formed “rapid deployment teams.” Those are made up of officers from Customs and Border Protection, the Transportation Security Administration, the Coast Guard and Immigration and Customs Enforcement who back up the Federal Protective Service, which is already responsible for protecting federal property.

Videos showing federal agents using tear gas on protesters and complaints that federal agents lacking insignia are pulling people from the streets have raised questions over the legal authority that homeland security officials have to crack down on citizens. In Portland, federal agents have acted against the expressed opposition of the local authorities.

But officials in Washington said they had clear authority. Customs and Border Protection, which sent tactical border agents to Portland, cited 40 U.S. Code 1315, which under the Homeland Security Act of 2002 gives the department’s secretary the power to deputize other federal agents to assist the Federal Protective Service in protecting federal property, such as the courthouse in Portland.

Those agents can carry firearms, arrest those accused of committing a crime without a warrant and conduct investigations “on and off the property in question.”

“An interpretation of that authority so broadly seems to undermine all the other careful checks and balances on D.H.S.’s power because the officers’ power is effectively limitless and all encompassing,” said Garrett Graff, a historian who studies the Department of Homeland Security’s history and development.

At some level, this is just another example of how much the United States has depended on informal norms and formal – but fundamentally toothless – guidelines to prevent abuse of executive power. As Julia Azari pointed out back in 2018, the strength of those norms, in turn, depends on a commitment to liberal democratic values.

This commitment is what the Trump and the Trump administration lacks. It’s one reason why the old view – which I admit to holding – that the ‘character’ of a president doesn’t matter turns out to be true only within certain parametric limits. A president can be a morally compromised so long as they retain a sense of obligation to basic responsibilities of the presidency. These include, for example, taking into consideration the interests of the country as a whole, maintaining the rule of law, and upholding some baseline of democratic values.

What happens when a president’s character flaws cross these bounds? Instead of 20,000 to 40,000 people killed in a pandemic, we get over 130,000 and counting – if we can count, because that president may decide the best way to handle their failure is to do their best to hide it. We also get abuses of power, from minor but corrosive violations of the Hatch Act, to the manipulation of emergency powers to circumvent the separation of powers, to the kinds of deployment of internal security forces we’ve seen since the outbreak of the #GeorgeFloyd protests.

It’s not just the character of the president, or of his personal swamp of cronies and relatives. It’s also the overwhelming majority of the Republican party (I won’t waste your time by rehashing the contents of literally hundreds of previous posts, you can just go read them yourself). We’re stuck in an extraordinarily dangerous position. The United States has a two-party system, but only one of its major parties is built on an electoral coalition that benefits from more, rather than less, liberal democracy. So instead of the two parties trying to outbid one another when it comes to democratic values, democratic values themselves become politicized.

Of course, we live in an a country that considers itself synonymous with democracy, so it’s not like the Republican party in general, or Trumpism in particular, pitches itself as anti-democratic. Instead, it positions itself as defending the true democratic majority, the real will of the people, against efforts to subvert it.

This plays out in unsubstantiated, if not downright hypocritical, accusations of voter fraud as a basis both for delegitimating unfavorable electoral outcomes and also for restricting the franchise. It also plays out in demagogic claims about how a minority – often composed of minorities – of radicals presents an existential threat to the Republic. Existential threats, of course, require extraordinary measures.

The thing is that some of the people out in Portland every night really are not merely radicals. They aim to push along an action-reaction cycle of violent contention and repression. As do many of their counterparts on the far right. The best propaganda always has some kernel of truth in it.

Nonetheless, it’s also clear that Trump’s little green men aren’t being deployed in a good faith way. People are being grabbed and detained as they walk home from protests. Even if legal, the totality of behavior is authoritarian by disposition. If normalized, it invites worse to come. Especially since, despite the record of the last two months – in which we’ve seen federal and local authorities repeatedly and verifiably lie to justify their abuses against protestors – plenty of people continue to take the word of law enforcement at face value.

I don’t think we can put the genie back in the bottle. The best hope remains a decisive electoral thrashing of Trump and the GOP, one that leaves the Mitt Romneys and Larry Hogans of the party vindicated. Still, recent developments underscore the need for major measures to prevent current abuses, as well as to make it harder to maintain and expand pockets of authoritarianism.

One such measure is the abolition, or at least the partial dismemberment, of the Department of Homeland Security. DHS is a Frankenstein’s monster, drawn on the back of a napkin and pursued for short-term political gain. It somehow manages to combine gross inefficiencies with dangerous concentrations of power. In other words, it’s kind of Soviet.

Altogether, the department’s creation amounted to the most sweeping reorganization in the federal government’s history. As the Hart-Rudman Commission had proposed, DHS incorporated FEMA and the Coast Guard. The department also absorbed the entire Immigration and Naturalization Service, merging the Border Patrol and the Customs Service to create Customs and Border Protection and moving the INS’ domestic enforcement functions into Immigration and Customs Enforcement. The Coast Guard and Secret Service were brought under DHS, too. All told, the department combined 22 agencies from across the government.

The result was a sprawling new federal bureaucracy. In its current form, DHS employs almost a quarter-million people and doles out tens of billions of dollars in grants and programs each year. Its missions include taking the lead on counter-terrorism programs, helping Americans recover from natural disasters, protecting and regulating the U.S. border, and defending the nation from cyberattacks. In all these efforts, DHS has been either incompetent, wasteful, redundant, or abusive—and Congress knows it.

In January 2015, on his final day in office, Republican Senator Tom Coburn of Oklahoma released a report summarizing what he’d seen during his tenure on the Senate Homeland Security Committee. “Despite spending nearly $61 billion annually and $544 billion since 2003, the Department of Homeland Security is not successfully executing any of its five main missions,” the report found. DHS is focused on counterterrorism, Coburn wrote, “but a review of DHS’s programs shows that DHS’s main domestic counterterrorism programs—including its intelligence initiatives and homeland security grants—are yielding little value for the nation’s counterterrorism efforts.”

Any major organizational and legal fixes designed to compensate for the failure of informal norms will have both foreseeable and unforeseeable downsides. Which means they’ll be politically risky. They’ll also be impossible without filibuster reform. And all of this depends not just on winning the presidency, but netting three seats in the Senate.

But let’s assume that we’re all too skittish after 2016, and this election is going the way we’d expect given a deeply unpopular incumbent campaigning in the midst of a recession and a pandemic that (in its domestic manifestation) can be easily laid on his doorstep. The chatter among my friends and colleagues has focused on what, if anything, small-d democrats – both in terms of elected officials and ordinary people – can do to mitigate the tremendous damage that the administration can accomplish between now and January 20, 2021.

The deeper problem, alas, is that such damage could be consequential for the outcome of the election and the character of a presidential transition. For example, what about foreign interference in the election, which Trump (with a major assist from McConnell, who really is the architect of our current crisis) will do nothing about because he welcomes it?

I really don’t have any good answers. I do know that it seems like that for every Republican friend who has abandoned Trump, another has gone full fascist in order to rationalize voting for someone who they know is an authoritarian kleptocrat. So it would be good if smarter people than I – as well as experts in contentious pro-democracy mobilization – come up with some really good answers. And soon.

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