The "Day One" Dictatorship: On the law in a fascist America

[Nevilledog]

https://newrepublic.com/article/181224/day-one-dictatorship

No paywall link
https://archive.li/sZlvh

Last December, when asked if he would abuse power if reelected president, Donald Trump said, “except for day one.” In short, if we are to believe Trump’s own words, the constitutional order as we know it will be subverted from the moment he takes office. Of course, there are many unknowns here, starting with the capacity of Trumpists to implement what they have already told us they plan to do. But Trump and his people have all but told us that, in a second Trump term, the United States might approach a fascist form of government under the leadership of a messianic personality.

There is no fascism without dictatorship. This form of permanent power is emblematic of the fascist worldview. The primary aim of fascism is to destroy democracy from within, in order to create a modern dictatorship from above. Fascists propose a totalitarian state in which plurality and civil society would be silenced, and there would be few distinctions between the public and the private, or between the state and its citizens. Fascist regimes shut down the independent press and destroy the rule of law. Would all these actions be part of the promised one-day dictatorship? Would an American dictatorship look like the past experiences of Nazism and Italian fascism? History doesn’t repeat itself that neatly, but one thing is certain: If Trump wins and decides to try his one-day dictatorship, the president will also become a lawgiver, replacing legality with his own charismatic will.

A second Trump presidency could represent an all-out assault on the rule of law. How might this play out? In past fascist regimes, the destruction of the rule of law has required two steps. First, its suspension, through state of emergency declarations or delegations of legislative power (a legislature transferring its lawmaking power to the executive). Second, its violent subversion, by transforming the juridical and political orders via the erosion of the principles of separation of powers and checks and balances that prevent constitutional democratic regimes from becoming authoritarian. Both Mussolini and Hitler transferred parliament’s representation of the people, and therefore the power to make laws, to the executive. Il Duce and the Führer became the legal embodiments of the people. Consequently, their wills were the sole legitimate expressions of the nations’ laws. The executive’s prerogative, rooted in arbitrariness, discretionality, and violence, replaced the normative legal order based on the rule of law and proceduralism.

Trump will not have the similar institutional mechanisms that allowed Hitler or Mussolini to install dictatorships and personify the law. From the get-go, Hitler made use of constitutional emergency powers to suspend civil rights and arrest members of opposition parties, then forcing the Reichstag to authorize an Enabling Act decree providing the executive with full legislative powers. Similarly, Mussolini, after orchestrating a coup attempt, bullied the Parliament into procuring the legislative delegation of plenary powers to reorganize the institutional and juridical orders, gradually leading to the installation of a totalitarian regime.

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