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Sovereign by Exception « Previous | |Next »
June 23, 2007

Carl Schmitt's definition of the sovereign is the one who can create the exception. The political is determined by the final authority found in exception. We have become used to watching emergency governance, usually where the executive states something is such an emergency that politics cannot intrude, but the irony is that by becoming emergency, governance is purely political, and in such a situation one of the first things lost is an individual's full judicial expression.

However, we had a curious situation this week where a state of exception was claimed inside the US Executive Branch.

The point of contention was over an Executive Order. The President, for all the media dominance, really only has absolute sovereignty in two areas; foreign policy and administrative process. The President is mainly an elected bureaucrat. The Executive Orders are an expression of the President's sovereignty in this area. They are self-contained within the executive and have the force of procedure in the Administration. These orders do not have the force of law.

The Office of the Vice President decided it was exempt from an Executive Order because it isn't an executive entity as the Vice President's duties straddle both executive and legislative. It is a pretty silly argument, and since the Office of the Vice President complied with the Executive Order until 2003, it suggests it was an excuse after the fact.

The interesting thing is, despite a Congressional legislator being the one highlighting this non-compliance, and giving the appearance of this being a separation of powers issue, the Office of the Vice President is repudiating the President's authority inside the executive. The personalities of both the current American President and Vice President do not handle people dismissing their authority very well; and I expected one of two outcomes. Either the Vice President is slapped down by the President for the Vice President abusing his authority, or the President backs down and makes a statement that the Executive Order was wrong.

Today we saw this media statement:

White House deputy press secretary Dana Perino said it's clear that the president's executive order never intended for the vice president's office to be treated as an "agency."

The President accepted the state of exception. If he really wanted the Office of the Vice President to be exempt, he could have written the Executive Order to exempt that office, or altered the Executive Order in 2003 when the VIce President decided his office should be exempt - after all the President has complete authority over the procedures in the Administration.

It is remarkable; we saw a state of exception claimed in the Executive Branch of the United States; and the Vice President, through accident of personality, and a state of exception, asserted the Vice President's sovereignty over the President.

I don't think this will go far. It appears that there was legislation that prompted this executive order (which dates back to the Clinton Administration and was re-issued under President George W. Bush), so once Congress becomes involved there will be the force of law, if not the full force of constitutional law brought to bear, rather than the force of procedure - the latter having no authority outside of the Executive branch.

| Posted by cam at 01:10 PM | | Comments (0)
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