This article is a student op-ed piece from Professor Kim Wehle’s spring 2020 course “Advanced Constitutional Law: Democracy at Risk.” The Legislation and Policy Brief allowed the students to publish their writing on the blog if they wished. The blog pieces were edited by the Legislation and Policy Brief for grammatical and technical errors only, and they appear as they were written by the authors in April of 2020.
Student Author: Katie McConville
Since Trump arrived in office, many have called Trump’s actions authoritarian, but the speed with which the Trump administration is eroding the checks and balances baked into our Constitution and edging towards totalitarianism is skyrocketing in response to the COVID-19 pandemic. With the knowledge that the United States is experiencing more deaths due to COVID-19 than another other country in the world, Trump continues wage war on science through actions such as threatening to defund the World Health Organization (WHO), reducing the influence of scientists over regulatory decisions, and lying about the availability of COVID-19 testing and treatment. And when the media disagrees with him, Trump invokes his now classic move of attacking the media’s legitimacy.
Exacerbating matters, a majority of the Republican party is lock-and-key with Trump’s slide from authoritarianism to totalitarianism. Republicans in Wisconsin refused to postpone primary voting despite the governor’s plea to do so in wake of a rising COVID-19 infection rate and extremely long wait lines for in-person voting. Potentially worse, Republicans are backing Trump in his refusal to bail-out the U.S. Postal Service—a deliberate move indicating the Republican party’s desire to suppress voting in the upcoming presidential election.
Contrary to what Trump’s Presidency may look like, however, America was founded in rejection of an absolute monarchy. The founders explicitly created three branches of government in our Constitution—the executive, the legislative, and the judicial—each equipped with the ability to check the power of the other. The executive branch ‘checks’ the judiciary through the President’s power to appoint judges and ‘checks’ Congress through the President’s power to veto laws. The judiciary in turn ‘checks’ the executive through the ability of courts to declare acts made by the President unconstitutional, and Congress ‘checks’ the Executive’s power to through its abilities to override presidential vetoes, its appropriations power, and impeachment. But rules, even those as revered as the Constitution, are only as good as the consequences of acting against them.
Combined with our numbness to Trump’s attacks on science and the Constitution, our inability to collectively reign in the Trump Administration’s embrace of unitary executive theory—a line of constitutional thinking condoning unlimited power of the President above that of the judiciary and Congress—is the banality of the Trump Administration’s evil.
In her coverage of the trial of Nazi war criminal Adolf Eichmann, Adolf Hitler’s right-hand man who famously organized “the final solution of the Jewish question,” political theorist Hannah Arendt described the innate ability of humans to commit horrendous acts as “the banality of evil.” Arendt depicted Eichmann not as a monster who sought to kill Jews in a villainous quest, but rather as a “terrifyingly normal” human being who committed “his crimes under circumstances that [made] it well-nigh impossible for him to know or to feel that he is doing wrong.” Going further, Arendt called Eichmann’s lack of empathy an inability to think, a banal thoughtlessness. Arendt reported that Eichmann’s inability to think normalized the everyday evils of totalitarian bureaucracy totally; even as Eichmann sent hundreds of thousands of Jewish people to their death, Arendt wrote he “never realized what he was doing.”
Pausing here, it’s easy to see why many lambasted—and continue to critique—Arendt’s depiction of the second-most culpable Nazi war criminal as a passive, rules-following, everyday bureaucrat. But it’s a common mistake to think Arendt’s concept of the “banality of evil” intended to shrug off the gravity of genocide, and not one we can afford to repeat.
Where Eichmann insisted to be seen as a simple bureaucrat at trial, Arendt insisted Eichmann be seen as a careerist “who acted with unanticipated initiative and zeal.” Where the bureaucrat shirks responsibility through following orders, Arendt saw Eichmann as ambitious—fully responsible at least for the political harms he caused as he climbed the ladder of the Nazi party. Where the legality of the government’s actions becomes inverted with morality, Arendt argues that individuals make decisions not without conscience—but with a conscience seized by totalitarianism and thus lacking the capacity to reason in a way that aligns with conventional societal morals.
Today we live in a moment where Congress’s power to check the President is undermined through crafty political maneuvering; where the President can break the law, undergo an impeachment inquiry, and escape unscathed by hiding in the confusion of a polarized media firestorm. This fracturing of democracy is the banality of Trump’s evils, and the time is now to call out the lack of morality in the bureaucracy’s actions before we lose sight of right and wrong.
