Jacqueline Best’s article ‘Security, Economy, Population’ is a welcome addition to the evolving discussion of ‘exceptionalism’ in the critical social sciences. As Best suggests, over the past fifteen years much discussion of emergency governance and exceptionalism has been shaped by post-9/11 security measures. I fully endorse her call to bring other forms of emergency government—particularly emergency economic government—into this discussion, and to see what they tell us, both empirically and theoretically, about exceptionalism.
Along with Andrew Lakoff, I have been working on historical dimensions of emergency economic government in the United States for a number of years now. As such, I am particularly sympathetic to Best’s point that emergency economic governance is far from a new problem. Indeed, it is historically important to modern reflections on exceptionalism. Carl Schmitt’s discussion of crisis government in Dictatorship(1921)—which Giorgio Agamben has referred to as a first, isolated treatment of the theory of the exception—was motivated in large part by the frequent recourse to exceptional powers during recurrent economic-financial crises in Weimar Germany.[i] Emergency economic government in the US has also been historically tied to questions of exceptionalism. The crucial occasions of American emergency government during the first half of the 20th century were the Great Depression and industrial mobilization for World War I and World War II. These events raised questions about exceptionalism: could they be managed within the legal and constitutional framework of American political institutions?
I would like to approach Best’s article from a somewhat oblique angle, making a few comments on this historical material and then turning to the contemporary forms of economic government that Best analyzes. What was the form of emergency economic governance that was exercised amid depression and world war? How has emergency economic government changed over the last century? And what does it have to do with the ‘state of exception’? In addressing these questions, it is useful to take a step back to consider emergency economic government in the context of broader tendencies of American political development during the first half of the 20th century.
At this time, governmental reformers —specifically late-Progressive reformers—were convinced that in an increasingly metropolitan and mass-industrial society, government would be more frequently required to manage rapidly evolving social and economic problems. To do so, reformers argued, governments had to be equipped with discretionary executive power and mechanisms of technocratic decision-making to address the demands of rapidly changing situations, from economic shocks to strikes and other forms of social unrest. But in the early decades of the 20th century, such equipment was lacking in the American governmental system. Sovereign power was highly diffused, both within the federal government and across the constituent states. Executives —whether mayors, governors, or presidents— had limited discretionary power, at least when judged by contemporary standards. Government at all levels lacked the instruments of technocratic rule: large bureaucracies staffed by cadres of technical experts. Progressive reformers thus identified a mismatch between governmental institutions and the contemporary problems they faced. Reform and adjustment were necessary.
This mismatch that reformers perceived between inherited governmental form and the challenges that confronted modern governments suggests why economic crisis governance raised problems of exceptionalism. The most indicative case, perhaps, is President Roosevelt’s initial response to the Great Depression in 1933. Famously invoking a threat to the nation as great as that posed by an enemy during wartime, Roosevelt did indeed seize—or was granted through emergency legislation—a set of exceptional powers that were soon rebuked by the Supreme Court as unconstitutional. Roosevelt opted for ‘exceptional’ economic government in an emergency situation because the executive in the US federal government was totally unequipped to respond in any other way.
But before jumping to the conclusion —as Agamben does— that Roosevelt’s early response to the Great Depression set in motion a much broader tendency toward exceptionalism that continues to the present day, it is worth noting how reformers responded to the rebuke of early New Deal initiatives to manage the Great Depression in the middle to late 1930s. To grossly simplify a complex story, reformers sought a form of emergency economic government that would not require recourse to exceptional measures. They found it in the instruments of what came, after World War II, to be known as the regulatory or administrative state. A couple of salient features of this regulatory state are particularly relevant for the present discussion. Congressional statutes delegated authority to various offices and agencies housed in the executive branch of government, not through ‘emergency’ legislation, but as standby powers created during ‘normal’ times. Importantly, these new discretionary, executive powers—often exercised by new expert bodies of various sorts—were not necessarily placed under the direct authority of the president. Legislative oversight was generally maintained, and in many cases mechanisms were put in place to promote independence from the ‘sovereign.’ The Federal Reserve, which features centrally in Best’s account, provides an important example of this pattern. In the Banking Act of 1935, discretionary power was, on the one hand, centralized in the Board of Governors, which was to be comprised of members who were ‘well qualified by education or experience to participate in the formulation of national economic and monetary policies’[ii]—that is to say, by experts of a certain sort. On the other hand, measures were instituted to protect the actions of the Board from interference by the president and the presidential administration.
Today, this basic model of the regulatory state is pervasive in the U.S. (and in other countries). It comprises, to quote Best’s characterization of the emergency economic governance mechanisms she describes, ‘a set of expert decision making bodies’ that are, in important ways, ‘insulated from the democratic process.’ At the same time, this model fits pretty uneasily with what is usually referred to in discussions of ‘exceptional governance.’ It certainly does not involve a sovereign proclaiming that the constitution and legality have to be set aside; indeed, it was created by reformers who wanted precisely to avoid such recourse. Rather, this model of economic governance involves the exercise of specific powers that are grounded in statutory authority, that are constrained by various forms of oversight, and that are often insulated from direct control by the ‘sovereign.’ To say that these powers are hemmed in by law does not mean that they raise no questions of legality or even constitutionality. To be sure, they have garnered legal challenges from both the left and the right, in domains ranging from environmental regulation to labor regulation and financial governance. But these legal challenges are not about sovereign exceptionalism, per se. They relate, rather, to specific, statutory powers that are exercised through the technocratic apparatuses of the regulatory state.
So what does this historical perspective tell us? For one, I think it helps us think more clearly about why, at a certain historical moment, economic crisis government was so closely tied to the question of exceptionalism. At the risk of again being far too simplistic, the reason that economic or financial ‘emergency’ raised questions of sovereign exceptionalism in the first half of the 20thcentury is that the institutions of the regulatory state had not yet been invented. There was no body of law, no cadre of experts in government, and no established decision-making bodies that could undertake such interventions. They could only be accomplished by stepping outside of established statutory authority, by creating ‘emergency’ legislation, or by relying on the undefined and theoretically limitless constitutional powers of the American presidency to act ‘by dictate’—and according to the dictates—of an emergency situation.
But in wrapping up this comment, I want to turn from the past to the present, and to some of the core issues raised in Best’s article. Specifically, I would like to engage Best on two points, one analytical and methodological, the other regarding the contemporary politics of emergency, rationality, and executive power. On the methodological and analytical point Best argues that after a flurry of interest in exceptionalism, a recent literature on emergency governance ‘looks away from exceptionalism,’ going so far as to suggest that it proposes to ‘give up on exceptionalism’ as an analytical category. I would gently push back on this characterization. The argument in this literature is not that the category of exception should be discarded. Rather, it is that we have to more carefully analyze and distinguish among different ways that governments deal with what are considered to be urgent problems. This project is fully consistent with Best’s proposal to introduce emergency economic government into the discussion of exceptionalism. But I think more work remains to be done in sorting out whether the legal and administrative mechanisms involved in the governmental forms she is discussing really constitute ‘exceptional’ government in the sense we usually understand it.
There are, no doubt, cases of economic emergency government that take something like the structure of exceptionalism Schmitt described, in which sovereign authority gives itself the right to act without any statutory ground, relying either on inherent constitutional powers or on powers that are simply unelaborated, in the name of the ‘necessity’ of a particular situation. But in other cases, urgent technocratic response to economic emergencies is based on powers that are established in legislation or through the many mechanisms of regulatory authority that are fundamental to the operation of post-war states, including to the way these states deal with emergencies. I would suggest that most cases of emergency economic governance, including many of those that Best analyzes in her article, fall in the latter category, and are not examples of exceptionalism. Though Best and I may disagree on this point, I think we would agree that progress could be made in resolving our disagreement by further scrutinizing the legal and administrative arrangements of particular examples of emergency economic governance.
My second concluding point concerns the kinds of political problems that these questions of emergency, expertise, technocracy, and democracy pose today. At the end of her article, Best provocatively draws a connection between the response to the 2008 financial crisis and the ‘more recent rise in support for the authoritarian right.’ She identifies both as ‘exceptionalist manifestations of [a] new crisis of liberalism.’ In light of the history to which I have gestured, I see these developments from a different perspective. Faced with what seemed like truly dire threats to democratic government, American governmental reformers of the 1930s and 1940s invented the institutions of the regulatory state as the American alternative to sovereign exceptionalism. Today, in domains ranging from environmental policy to economic governance and the basic function of statistical analysis and reporting, these technocratic mechanisms of the regulatory state are being attacked.[iii]Thus, from my perspective, the distressing prospect today is not that mechanisms of expert rule present an exceptionalist politics that may undermine democracy. Rather, it is these mechanisms that were originally invented as alternatives to exceptionalism will be destroyed. Will the Progressive ‘solution’ to the problems of emergency, executive power, and expert rule stand? Can the institutions created to institute democratic executive government, hemmed in by technical expertise, impersonal standards, and bureaucratic norms, survive? I couldn’t agree more that, as Best suggests, our democracy is at stake. But the real threat today is not excessive sovereign power acting under the guise of expert truth. Rather, as in the 1920s and 1930s, it is sovereign power wielded against the truth.
Stephen J Collier is Professor of City and Regional Planning at Berkley, University of California
[i]Giorgio Agamben, State of Exception, (Chicago and London: The University of Chicago Press, 2005). The argument that Schmitt’s early reflections on crisis government were largely oriented to the economic-financial crises of Weimar Germany is advanced in William Scheuerman, Liberal Democracy and the Social Acceleration of Time(Baltimore: Johns Hopkins University Press, 2004).
[ii]‘Banking Act of 1935.’ Accessed at https://www.federalreservehistory.org/essays/banking_act_of_1935.
[iii]This argument has also been made in Stephen J. Collier and Andrew Lakoff, ‘Trump’s Fictional Crises and the Real Threats to American Democracy.’ The New Republic, February 8, 2017.