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The Divine Right of Populists

By Nicholas Reed Langen
Like US President Donald Trump, UK Prime Minister Boris Johnson owes his political success and hold on power to the idea of a fully sovereign executive. Advanced most forcefully by the German jurist Carl Schmitt to defend the Third Reich, this line of thinking threatens to render the world's two oldest democracies unrecognizable.

Countries undergoing political crises often favor the leadership of strongmen who promise to restore order and prosperity through sheer force of will. The allure of such authoritarians is obvious, especially when they portray normal checks and balances as only exacerbating chaos and dysfunction. That was the thinking behind the original model of a constitutional dictator: in the Roman Republic, a “commissarial dictator,” elected by the Senate, was granted powers unchecked by constitutional norms until the crisis was resolved. The abnormality of the situation called for the abandonment of normality.

Today, the world’s two oldest democracies have gone some way toward mustering this kind of response to perceived political crises. In the United States, Attorney General William Barr is promulgating the idea of the “unitary executive” in support of President Donald Trump’s authoritarian decision-making. This theory, which can be traced back to Alexander Hamilton in Federalist No. 70, gives the president total control of the executive branch. And according to Barr’s interpretation, that means Trump has the right to terminate federal investigations into his own misconduct, and that of his cronies. The recent murmurings of resistance from Barr look more like an attorney general trying to mask his attempts at enhancing executive power than one trying to assert the independence of the US Justice Department.

In the United Kingdom, meanwhile, some viewed the plebiscitary decision to leave the European Union as replacing the sine qua non of the British constitution – that Parliament is supreme – with the idea of the “will of the people.” For much of the government, as well as MPs who favored “Leave,” Parliament’s failure to accede to this “popular will” was tantamount to defying the ultimate source of democratic legitimacy. In fact, Brexit was a fundamentally opaque policy, and the ambitions of Parliament were simply at odds with those of the government.

While former Prime Minister Theresa May tried to work within the system, her successor, Boris Johnson, has shown less respect for constitutional and political norms. Last September, he concluded that if Parliament stood in his way, he would bulldoze it, unilaterally dismissing it through the power of the Crown. By using the government’s prerogative power to suspend (or prorogue) Parliament, Johnson sought to capitalize on the British constitutional order’s vulnerable, confused state and enhance the power of the executive at Parliament’s expense. Although the UK Supreme Court unanimously declared his prorogation unlawful, this has not deterred Johnson, emboldened by his newly gained parliamentary majority, from continuing to take increasingly authoritarian positions.

THE LONG SHADOW OF THE FÜHRERPRINZIP
Political developments in the US and the UK are unfolding in distinctive ways, but they are being driven in both cases by the broader question of where political power ultimately lies. In attempting to imbue the executive branch with near omnipotence, both Johnson and the Trump/Barr tandem are aligning themselves with a view that bears a striking resemblance to that of the twentieth-century German jurist Carl Schmitt.

Writing during the Weimar Republic and the Third Reich, Schmitt argued that under any constitution, the “Sovereign is he who decides on the state of the exception.” In other words, the de facto sovereign is the one who has absolute authority to declare a state of emergency, and fundamentally overhaul the constitutional order, if need be, in order to resolve the crisis.

Johnson’s motive in calling for prorogation last year was to prevent Parliament from holding his government to account, envisaging dismantlement of the prevailing order as a means of resolving Brexit, even if it meant forcing a disastrous “no deal” departure on the UK. Barr, similarly, has launched investigations intended to buttress Trump’s conspiracy theories, thereby bending the entire edifice of federal law enforcement to the president’s will. In both cases, Johnson and Barr are following a Schmittian playbook, defending the constitutional legitimacy of their preferences by claiming that they are channeling the true voice of the people.

Recent events have further invigorated such instincts in both governments. In the UK, Johnson was returned to power on a populist manifesto and a promise to “get Brexit done” with an 80-seat majority in Parliament. In the US, the Senate’s acquittal of Trump on charges of abuse of power and obstruction of Congress has left him both more secure and less constrained, with his approval rating the highest of his presidency. In both cases, violations of constitutional norms have been rewarded – and thus implicitly legitimized – by the people and their representatives, rather than condemned.

There has been more resistance to these authoritarian moves in the UK, however, particularly through the courts. In London, the legality of Johnson’s prorogation was challenged by Gina Miller, the MP Joanna Cherry, and others. Had the UK Supreme Court upheld the prorogation, it would have reshaped the British constitution, granting the executive near-total control of Parliament. But in Cherry/Miller II, the court declared Johnson’s prorogation order a “blank piece of paper” and reasserted the supremacy of Parliament, as well as the role of the rule of law in upholding its authority.

DICTATOR’S DELIGHT
Not surprisingly, the government condemned the Supreme Court’s decision, with Jacob Rees-Mogg, Leader of the House of Commons, telling Johnson’s cabinet that it was a “constitutional coup.” Cherry/Miller II has also been subject to some trenchant criticism from the legal academy, most notably from John Finnis, Emeritus Professor of Law & Legal Philosophy at the University of Oxford (who, incidentally, taught Trump’s first US Supreme Court appointee, Neil Gorsuch, when he was a doctoral student at Oxford in the early 2000s).

While Finnis claims to oppose “executive hegemony,” he had presciently suggested in April 2019 that Britain’s political crisis could be resolved only through the prorogation of Parliament, which he argued would be “wholly legitimate as a matter of constitutional principle.” His views have changed little since, arguing that that the Court’s decision “undercuts the genuine sovereignty of Parliament,” rather than supporting it.

To justify this stance, Finnis has suggested that the House of Commons’ attempt to prevent a no-deal exit was “illegitimate” because it interfered in the “delivery of something this Parliament [has] approved again and again.” Setting aside the fact that Parliament cannot be bound by its past decisions, Finnis’s greater objection seems to be that Parliament is “not carrying out [the] decision of the British people,” as the government has defined it. Faced with such a quandary, one might think that the prime minister should have tried to reach an agreement with the EU that could command a majority in the House of Commons. But Finnis would have none of that. He concluded that if Parliament was standing in the government’s way, it should be dismissed, as though it were a mere obstruction.

In grasping for such a conclusion, Finnis erroneously conflated constitutional history with constitutional principle, as he has continued to do in his most recent “supplementary note.” There, he writes that “the rule that prorogation is non-justiciable … [had been] peacefully accepted by everyone involved in Westminster constitutions until 2019,” noting that “James II had made vigorous use of the powers of … prorogation.” What he neglects to mention is that the British government has resembled an elective dictatorship, because the UK’s voting system has often afforded the government substantial majorities in the House of Commons, which it has then used to dominate the parliamentary agenda.

Had this remained the case after the general election in June 2017, there probably would have been no political crisis or Schmittian state of exception in 2019, but instead a relatively peaceful departure from the EU. But that election yielded a hung Parliament, forcing May to form a government with the support of the Northern Irish Democratic Unionist Party. And when Johnson succeeded May in July 2019, it was as the winner of a leadership bid within the Conservative Party. Not until the December 12 general election – that is, after the failed prorogation attempt – could Johnson win Parliament’s support for his vision of Brexit.

In any event, the mere fact that governments with strong parliamentary majorities have been the norm does not mean that there is some legal or constitutional principle conferring upon the executive the authority to dominate Parliament. To the contrary, the government’s power is contingent on the principle of parliamentary sovereignty, not independent of it. This is arguably the core convention of the British constitution: governments exist only so long as they can command the confidence of the Commons. And even when that is the case, the government does not have a right to expect or demand unquestioning obeisance from Parliament. The Commons always patrols the perimeter of the government’s actions. For the government, as Finnis argues, to be able to prorogue Parliament “for months or years without ipso facto violating any rule of law, and without violating the sovereignty of Parliament” would be to turn the constitutional order on its head.

FROM RULE OF LAW TO RULE OF WILL
Finnis’s arguments favoring executive power are not new. His work, particularly under the auspices of the Judicial Power Project, has long channeled a perspective that seeks to insulate the executive from judicial scrutiny. A limb of the Policy Exchange think tank, the JPP’s mission is to counter “the undue rise in judicial power.” The British judiciary’s rightful place, the JPP believes, is one where the courts are confined to “fairly adjudicating disputes,” rather than assessing the “justice or prudence of the laws.”

As such, Finnis would contend that it is for Parliament – not the courts – to police the boundaries of executive power, to identify constitutional rights (and wrongs), and to allocate constitutional responsibilities. This means that the courts should be wary not only of making constitutional rulings like that in Cherry/Miller II, but also of “exercising judicial power with a view to reforming the law.” Decisions that affect issues like human rights or the relationship between the executive and Parliament should be the bailiwick of those accountable to the people. On this view, the courts should look backwards only, remedying cases of individual wrongs; courts that exceed this limit are interfering where they don’t belong.

Such “interference” was supposedly on display in the 2004 Belmarsh decision in the House of Lords. After the terrorist attacks of September 11, 2001, then-Prime Minister Tony Blair’s government passed legislation authorizing the indefinite detention of suspect foreign nationals. The Law Lords duly declared this legislation incompatible with the UK Human Rights Act, finding that it unjustifiably discriminated between foreign and domestic terrorism suspects. As Baroness Hale, a former president of the UK Supreme Court, pointed out, if a system could be devised to manage the threat posed by British suspects, the same system would surely suffice for foreign suspects.

Many people now celebrate the Belmarsh decision as a high point in the history of the UK’s apex court (the case dates to before the judicial functions of the House of Lords were transferred to the newly established Supreme Court in 2009), with the late Lord Chief Justice Tom Bingham declaring it his most important decision while on the bench.

To the JPP, however, it is one of “50 problematic cases” showing how the judiciary has “transgressed the proper limits of the judicial role.” Rather than asserting the primacy of fundamental rights, the judges apparently “misunderstood the legislation and its animating principle.” The decision, according to Finnis, was a “juridical debacle.” In declaring the legislation “incompatible” (being unable to strike legislation down unilaterally) with human rights, based on their understanding of what was necessary “relative to open-ended rights and the needs of a democratic society,” the House of Lords usurped the “discursively deliberative legislature,” a body supposedly better placed to understand and defend such needs.

It would be easier to accept Finnis’s criticisms of Belmarsh, and his elevation of Parliament as the dominant constitutional actor and guardian, if he had not so enthusiastically welcomed attempts by the executive to silence Parliament. In addition to supporting prorogation, Finnis has also taken a dim view of the first Miller decision, in January 2017, in which the Supreme Court ruled, 8-3, that the invocation of Article 50 – the exit clause of the Treaty on European Union – had to be approved by Parliament. By constraining the government’s prerogative powers on foreign policy, this decision also reaffirmed the supremacy of Parliament over both the government and the courts.

Nonetheless, the decision attracted the ire of the JPP, which condemned it as another “misuse of judicial power.” Given this response, it is only natural to infer that what Finnis and the JPP really stand for is executive supremacy. Their favored model is one in which a functioning legislative majority gives extensive control to the governing party, and in which the government possesses near-unchecked prerogative powers, including the authority to rid itself of a recalcitrant legislature unilaterally.

Needless to say, as political philosophy, this does not accord with the Burkean notion of representative democracy. However, it does sound a lot like the American argument for a “unitary executive,” whereby the executive is a co-equal branch that also derives its power from the people, not from the legislature.

THE PEOPLE’S VOICE?
Here, the echoes of Schmitt grow louder. Schmitt believed that the test for the constitutionality of a sovereign’s action was whether it was acclaimed by “the people” (Das Volk). It follows that the courts should have no role in adjudicating the constitutionality of the sovereign’s action. Legitimacy is policed entirely by politics, and “ultimately,” as Finnis has written, by “the electorate.”

Finnis’s response to the two Miller judgments makes his position clear. If matters of state derive legitimacy from a popular mandate, parliamentary actions that inhibit the preferences of a duly elected executive are improper. If Parliament objected to the government’s actions over Brexit, it should have voiced that objection not by drafting legislation precluding a no-deal scenario, but by bringing down the government through a no-confidence vote, thereby forcing elected representatives to secure another mandate from the people.

From this perspective, it is possible to construct a view of Miller I wherein Parliament, rather than the Supreme Court, should have been the constitutional actor that constrained the government’s use of its prerogative power. As Lord Reed argued in his dissent, the UK’s treaty membership could be viewed solely as a foreign-policy issue, and thus subject to the whims of the occupant of 10 Downing Street. Rather than upholding the rule of law, the argument goes, the court undermined it by stepping beyond the boundaries of its constitutional authority.

Yet if the court had accepted this argument, the consequences would have been extraordinary. Unlike most treaties signed under the UK’s dualist system, the European Communities Act of 1972 allowed for certain changes to UK domestic law to be made directly from Brussels. In other words, it was legislation that created a new, direct source of law. If the court had ruled that the prime minister has the authority to sever this relationship unilaterally, he would have been able to surmount Parliament through his will alone.

Complicating matters further, Finnis’s political solution – bringing down the government through a no-confidence vote – would have been highly contingent. While the Court of Justice of the European Union did ultimately find that the Article 50 notification was unilaterally revocable by the UK, this was not a fait accompli. In fact, in Miller I, the UK Supreme Court based its own decision on the assumption that the CJEU would rule the other way. In this alternative scenario, Parliament’s ability to bring down the government would have been moribund. Either way, any future prime minister seeking to remain in the EU would have been left unable to revoke the notification. They would have been reduced to begging other EU leaders to find a political solution to Britain’s own exit crisis.

STATES OF EXCEPTION
The implications of Finnis’s position could lead quite rapidly to a dystopian scenario in which a prime minister would be imbued with the Schmittian power to strip rights from British citizens and foreign residents, and to raze the UK’s political and economic model. Parliament would be relegated to the position of a mere bystander, its sovereignty having been superseded by a single referendum decided by a simple majority.

This uninhibited view of the executive’s prerogative powers is at the heart of much of Finnis and his JPP colleagues’ constitutional theory. Judging by his writings on Brexit, Finnis seems to have concluded that the executive’s already significant prerogative powers have been further strengthened by the supplementary mandate bestowed by a singular act of popular sovereignty. Yet such a leap is as constitutionally dubious as Finnis claims the two Miller decisions are. It is a complete rupture with the foundational principle that Parliament is supreme.

The implications of this philosophy for the legislature are alarming. But those for the courts are even more distressing.

In Britain, the response of the government to the two Supreme Court decisions was to challenge their legitimacy. Then-Attorney General Geoffrey Cox mused about judicial reform after Cherry/Miller II, and at a more recent event, proposed an “amelioration” of judges’ role. In its 2019 manifesto, the Conservative Party promised to end the “abuse of judicial review,” and Johnson’s government is now in the process of establishing a commission on the rule of law and the Constitution. Since the election, the government has continued its attack on the courts, damning a judgment of the Court of Appeal which prevented the deportation of ex-offenders because they had received insufficient legal advice. Johnson’s spokesman said the decision was an example of the “Westminster bubble” which “makes the case perfectly to the public about why such a review is needed.”

The US Supreme Court will likely face its own challenge on this front soon, considering Trump’s eagerness to politicize traditionally independent agencies and dismiss agency heads for any reason he chooses. Should the Court rule against Trump, it can doubtless expect similar criticism, with the president seeking to delegitimize it as yet another swamp in need of draining. In contrast to Britain, however, the Court’s position is relatively secure, insulated by the US Constitution and the judiciary’s near-unquestioned role as the final arbiter of its meaning and application.

ENEMIES OF THE PEOPLE
Against a backdrop of rising extremism and incipient constitutional crises across Western liberal democracies, the willingness of respected philosophers and scholars to argue in favor of unfettered executive power is exceedingly dangerous. Such voices lend credibility to regimes that have none, providing self-interested strongmen with a cloak of legitimacy, much as Schmitt did for Hitler and the Third Reich.

With control of the largest Conservative majority since Margaret Thatcher was prime minister, Johnson is essentially invulnerable to parliamentary scrutiny. His success in conquering hitherto sacrosanct Labour seats will lead the Tories to accord him almost utter deference. The same has already happened in the US, where Senate Majority Leader Mitch McConnell and the rest of the Republican congressional caucus have repeatedly abased themselves on Trump’s behalf, allowing the administration to denigrate democratic norms while seizing ever more power.

While Johnson has spoken of the need to unify the UK, the beginning of his premiership has resembled politics in Hungary or Poland. In his latest cabinet reshuffle, he ruthlessly dispatched ministers who would not submit to his authority. He replaced Sajid Javid, the Chancellor, with Rishi Sunak – a relative novice who has no power base – and Geoffrey Cox, the Attorney General, with Suella Braverman, an MP who favors severely curtailing judicial review. Beyond this, Johnson has attacked the legitimacy of the BBC, the UK’s impartial state broadcaster. His government has also stripped citizens who joined the Islamic State – most notably the child-bride Shamima Begum – of their British nationality, leaving some at risk of statelessness, a violation of international law.

As Schmittian sovereigns, Trump and Johnson are both poised to divide their respective countries even more profoundly than they already have. Politics will increasingly become a game of mortal combat. Schmitt offered his philosophy in support of Hitler’s “Night of the Long Knives,” which resulted in the murder of Ernst Röhm, the leader of the Nazi militia whom Hitler had come to see as a threat. Very few are expecting to witness political assassinations nowadays; yet it is worth remembering that shortly before the Brexit referendum, Jo Cox, a pro-Remain Labour MP, was murdered by a man with ties to a neo-Nazi group.

The tensions in Hong Kong and other parts of the world in 2019 show us that violence is never very far from the political scene. In such circumstances, the mediating role of the courts is critical. With Johnson firmly controlling the legislature, the UK Supreme Court will be the only institution capable of checking his expansions of executive power, testing the thesis of Lord Steyn, who said in a 2004 judgment that judicial review is “a constitutional fundamental which even a sovereign Parliament … cannot abolish.” Similarly, if Trump wins re-election and Republicans hold on to the Senate in November, the US Supreme Court will be the only branch of government left standing that can offer a real defense of American democracy.

Barr and Finnis may bemoan an active, independent judiciary, but such courts are essential to a functioning democratic state. Those who are committed to defending constitutional democracy will need to mobilize every resource to ensure that judicial decisions are respected. Otherwise, authoritarians will dismiss every unfavorable ruling as a vapid contribution from a toothless institution.

Nicholas Reed Langen, an education consultant, writes on the British Constitution for The Justice Gap.

Published Date: Tuesday, February 25th, 2020 | 09:27 AM

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