Category: Presidency

An Urgent Situation

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March 1, 2026

By Stephen Stofka

This Friday marked the 93rd anniversary of the burning of the Reichstag building in Berlin, the home of Germany’s Weimar Parliament. A month earlier, Adolph Hitler had been elected Chancellor, the Chief Executive in Germany’s Parliamentary system. In the aftermath of the fire, police found a communist sympathizer who was accused of starting the fire. The following day, Hitler urged President von Hindenburg to issue an emergency decree granting Hitler extraordinary powers to prevent a communist takeover of the German government. The decree suspended Constitutional liberties like freedom of speech and assembly, guarantees of private communications and protections from arrest. Within weeks, political opponents were arrested, press freedoms were crushed, and the constitutional order hollowed out (Source). The “emergency” ended twelve years later after the utter destruction of Germany and the deaths of as many as 8.8 million German soldiers and civilians (Source). This week I want to explore the many meanings of emergency.

A hospital emergency room treats conditions with many degrees of urgency. The Latin word emergere refers to anything that comes up suddenly. When they are busy, emergency room doctors perform triage, an assessment of the urgency of a condition or illness. Many years ago, I slipped on the ice and dislocated my shoulder. Urgent? The nurse glanced at my eyes, then held up two fingers. How many? Two, I said. What day is today? Friday, I answered. No concussion. Have a seat. I waited in pain for over three hours in an emergency room in the Bronx, while doctors treated knife stabbings, gun shot wounds, heart attacks, and other conditions deemed more urgent than a dislocated shoulder. I was surprised to learn that neither the degree of my pain nor the short time it would take to fix the problem was a consideration to the doctors and nurses that night. Learning lesson: do not get hurt.

In 1787, a Constitutional Convention met in Philadelphia to resolve a financial crisis. The country could not pay its bills, or make payments on the war debt it had sustained through the eight year war for independence from Britain. Foreign investment had slowed to a trickle. Because each state issued its own currency, foreign investors were subject to currency risk and volatile exchange rates. The federal government had no power to directly tax businesses or people and states often neglected to meet their share of payment for war debts, weakening the credit of the colonies. Congress had no power to regulate commerce so the states fought among themselves for control of interstate waterways. In 1786, several months before the convention, four thousand people rose up to protest Massachusetts’ tax laws. This uprising, known as Shay’s Rebellion, demonstrated the need for a new compact among the states (Source). The acronym SNAFU was invented during World War 2, but the term aptly describes post-independence America. Despite these crisis conditions, the Constitution does not contain any reference to emergency, crisis or exigency (Source).

Hitler’s seizure of power in Weimar Germany raises issues of constitutional design. How does a country respond to a genuine crisis without empowering political leaders with the power to destroy constitutional order? In Federalist No. 70, Alexander Hamilton argued for a unitary executive, a President who could swiftly marshal resources in case of an attack from a foreign power. In response to insurrections like Shay’s Rebellion, Hamilton wanted a President who could restore domestic civil order (Source).

Carl Schmitt (1888 – 1985), a German conservative judge, argued in his 1922 book Political Theology that emergencies reveal the political structure underlying the ordinary norms in a country. He wrote that, in actuality, the sovereign is the person that decides when the rules can be broken (Source). Robert Bork (1927 – 2012) was a strong proponent of what is called the unitary executive, a President who has supreme power in the executive branch. According to Bork, Congress has no constitutional power to limit the President’s executive powers (Source).

The conservative justices on the Supreme Court have decided several recent cases that support this expanded power, rejecting the idea that Congress can impose limits on a President’s ability to hire and fire officers in the executive branch. This year the court will decide whether to overturn the court’s 1936 precedent set in Humphrey’s Executor and allow President Trump to fire the head of the Federal Trade Commission (Source). What is the limit of that executive power? Can a President fire the head of the Federal Reserve and install someone who supports the President’s political agenda? Can a President declare an emergency and invoke extraordinary powers? What is the limit of executive authority?

In France’s Constitution, Article 16 allows the President of France to assume exceptional powers when the normal functioning of government is interrupted. Should the U.S. amend its Constitution to give some clarity to what an emergency is? If there were such an amendment,  could the President suspend habeus corpus and other liberties when the Federal Government has a shutdown because of a budget fight in Congress? He could claim that the government is not functioning normally and take control. The U.S. relies on a political tension between the three branches of government rather than an explicit constitutional clarification of what constitutes an emergency.

During the Civil War, Abraham Lincoln suspended habeas corpus, arguing that the rebellion by the southern states made such a violation of individual liberty a necessity. Shortly after his inauguration in 1933, Franklin D. Roosevelt declared a national emergency and temporarily closed banks. Did Roosevelt have such a statutory power? Three days later, a Democratic Congress passed the Emergency Banking Act, effectively ratifying Roosevelt’s emergency decree. In 1952, in the midst of the Korean War, President Truman responded to a steelworker’s strike by declaring an emergency in which he nationalized the steel industry. Within two months, the Supreme Court ruled that he had exceeded his authority (Source).

In 1976, Congress passed the National Emergencies Act to check a President’s discretion to declare open-ended emergencies. According to the Act, the President must specify which statutory power they invoked during an emergency. Secondly, either house of Congress could unilaterally vote to end the emergency. Seven years later, in INS v. Chadha, the Supreme Court invalidated that unilateral power as unconstitutional (Source). After that decision, Congress had to pass a joint resolution subject to Presidential veto and a two-thirds majority to override that veto. With little effective oversight from Congress, any president could declare an emergency. Checks and balances be damned.

After the attacks of September 11, 2001, President George W. Bush declared a national emergency and claimed certain statutory powers under the National Emergencies Act. In April 2025, President Trump declared an emergency, not in response to a terrorist attack, but to persistent trade imbalances. What was the emergency? The need for Trump to exercise a discretionary power over other countries as he had done with contestants on the reality show The Apprentice. This month, the Supreme Court decided that Trump had exceeded his authority.

Emergency powers rarely disappear on their own. Once activated, they tend to be normalized. The extraordinary becomes routine. Surveillance powers expand. Administrative discretion widens. Political rhetoric justifies urgency. Democratic societies must be on guard against the temptations of power and the possibility of abuse. They must question whether the policy response is proportional to the danger and how long the response should last.

Constitutional safeguards cannot rely solely on the good faith of leaders. There must be effective institutional boundaries to check the desire for power. An executive can act with decisiveness in a true emergency but decisiveness has to be balanced with restraint or a country descends into autocracy. We want to tame rather than eliminate emergency power. I hope to see you next week.

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Photo by Aconitum on Unsplash

The Rusting of Trust

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December 7, 2025

By Stephen Stofka

In Genesis 22 of the Old Testament, God commands Abraham to sacrifice his son Isaac. As Abraham is about to make the sacrifice, an angel interrupts. Many commentators, among them the 19th century Danish philosopher Søren Kierkegaard, have discussed the ethics of Abraham’s actions (Source). This week I want to explore several aspects of asymmetrical relationships like that between God and Abraham, or between leaders and the people they govern. The first avenue is the question of honesty. God lied to Abraham as a test of his fealty. In making a sincere effort to comply with God’s request, Abraham was honest. In an asymmetric relationship, what are the ethics of those who hold more power in the relationship? Do public leaders owe any obligation of honesty to those they govern?

Related to the issue of honesty is the distinction between public and private. I want to explore the intersection of honesty and privacy. In our public relationships, when do we have an obligation to tell the truth? Is that obligation grounded in any ethics or does it simply reflect an imbalance in a power relationship? For instance, a witness in a criminal trial is subject to imprisonment and fines for lying under oath. It is the government who imposes that punishment because the government has more power in a relationship with each individual it governs. However, in such a case where a witness might implicate themselves in a crime, the Fifth Amendment to the Constitution provides an escape clause. An individual can remain silent instead of lying.

The founders recognized that each of us has a private space, a private interest that must be balanced with the public interest. In a tribal society with strict rules of hierarchy and fealty, the Biblical tradition placed a higher value on obedience than to an individual’s self-interest. The Constitution was the product of Enlightenment thinking which placed greater emphasis on the individual.

Do we judge the actions of others by their intent or by the outcome of their action? Our system of justice considers the motivations of people in the commission of a crime and at sentencing for those who have been found guilty of a crime. Most of us do not hold the executioner responsible for the death of a prisoner legally condemned to death. They are simply acting in their official capacity as an agent of the government.

At the inauguration ceremony, a newly elected President takes an oath to “protect and defend the Constitution” (Source). Unlike a witness, a President’s oath does not include telling the truth. Believing that he was keeping the American people safe from further terrorist attack, former President George Bush ordered an invasion into Iraq that led to the death of many hundreds of thousands (Source). He acted on authorization from Congress (Source) but without the sanction of the U.N. Security Council (Source). Many leaders honestly believe they are protecting their community, or furthering the interests of the community when they act.

In 2006, a Gallup poll found that Americans were almost evenly split on whether the war was morally justified. A majority of 60% thought the war was not worth the cost. A slight majority held the Bush administration responsible for misleading the public about the presence of WMDs, the primary pretext for the war (Source). Are leaders responsible for the consequences of their actions if those decisions were based on an honest belief that they were necessary? In January 2003, Gallup polls found that a large majority of Americans thought that Iraq might be hiding nuclear weapons (Source).

Does an honest belief in something excuse any action, no matter how heinous the consequences? Early 19th century Americans believed that God ordained the dominion of the continent by white Christian settlers, a policy called Manifest Destiny (Source). Did that belief justify the taking of many Indian tribal lands and the killing of many unarmed civilian Indians?

In a democracy, a duly elected leader is believed to be the voice of the people, which gives him legitimacy to act for the people as a whole. Many European monarchs based the legitimacy of their office on primogeniture, the belief that a ruler was divinely ordained by birth. Does either belief system convey more legitimacy? In the 18th century, the 13 colonies declared their separation in the Declaration of Independence. The document challenged the legitimacy of the English monarch’s rule because of his actions, which were listed in the declaration (Source). As Jay Winik notes in his book The Great Upheaval the founders were at the forefront of an Enlightenment movement that overturned the belief in divinely ordained rulers (Source).

Do honestly held beliefs justify the actions of our leaders? The Cold War between the U.S. and the U.S.S.R. was an apocalyptic battle between two political ideologies, democracy and communism. In 1954, President Eisenhower introduced an idea labeled the Domino Theory (Source). This was a belief that, if one country fell to communist rule, its neighbors would soon follow, as though a political ideology were contagious. Based on that belief, President Johnson ordered an escalation of the war in Vietnam, a small country with no geopolitical effect on the United States. That escalation led to the deaths of more than 58,000 American soldiers and many hundreds of thousands of civilians (Source).

While newspapers champion the truth, they feed on controversy, on opposing beliefs and opinions. If we all have the same opinion on an issue, its not newsworthy. In pursuit of controversy, they may give attention to those with marginal opinions or colorful characters. In 2015, many newspapers treated Donald Trump as a rich eccentric who attracted an audience. When he declared his candidacy, the press gave him a lot of airtime because his interviews boosted their ratings. Trump espoused marginal conspiracy theories but did he really believe that Barack Obama had not been born in the U.S. or that all immigrants were criminals? Rather than delegitimizing the beliefs underlying the conspiracy theories, the media helped promote them. Beliefs are contagious, after all.

Mass media companies are part of private industry but many Americans regard them as public utilities. They think the network and cable channels have a public responsibility to expose corruption, state the facts without political spin and act as a watchdog on public institutions and other private companies. That is a tall order for a private company whose first responsibility is to its shareholders. Given such high expectations, it is understandable that a recent Gallup poll found that only 28% of Americans express any trust in mass media. In 1976, after the Watergate scandal, 72% of the public had a “great deal or fair amount” of trust in mass media (Source). Have public expectations exceeded the capacity of the private media industry? Is the media less objective today than it was fifty years ago?

Americans have even less trust in Congress with only 15% approving the job they are doing (Source). A lack of belief in an institution often leads to the demise of that institution. For the past decade, the influence and profits of mass media has declined. The industry has shrunk and consolidated. Private industry may respond to the changing beliefs of the public, but public institutions like Congress are resistant to public sentiment. The members of Congress may change, but only a civil war can abolish the institution itself.

Because government institutions are resistant to change, libertarians prefer a minimum of such institutions. At their founding, the legitimacy of political institutions is grounded in the public will or welfare. Their capacity to have an influence on individual lives, however, is based on the police power of the government. They no longer express the will of the people, but enforce the will of a small minority within the people. While professing to serve the public interest, they  often serve the interests of its leaders. Members of Congress have little accountability outside of Congress until election time. Of the many who have served in the past few decades, only have a few have been convicted and served time (Source).

Company leaders, on the other hand, are held responsible by tax, accounting and fraud laws. That sense of accountability leads to greater public trust in private industry. An annual poll by Bentley University and Gallup finds that 65% of Americans believe that businesses have a positive impact on people’s lives (Source). When Americans have so little trust in our political institutions, their expectations diminish. They become callous to the ineffectiveness of Congress to enact any meaningful change in their lives.

Instead, they came to rely on a Presidential candidate who was a private businessman like Donald Trump, an outsider to the political arena. When he promised to lower grocery and oil prices, a majority of voters believed him. Now that voters see out false those claims were, they have become disillusioned. They have realized that Trump is almost as ineffective as Congress. Lots of hot air, no results.

Like belief, trust is private to each individual. Like belief, trust is contagious. The public trust is the sum of private trust. As trust decreases, everyone looks only to their advantage. Strategy, not ethics or convention, rules. The public will is subordinated to private ambition. How do we reinvigorate that trust?

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Photo by NADER AYMAN on Unsplash

Changing the Rules

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February 18, 2024

by Stephen Stofka

This week’s letter continues to take a historical look at survey data. Every July the polling organization Gallup publishes a mid-year assessment of sentiment toward political institutions like Congress and the President, and the civic institutions that help bind our society together. These include our schools, the medical system and organized religion. Institutions are a set of rules and relationships, of rights and responsibilities. The company provides historical tables of these surveys that show a declining trust in our institutions.

Graphing the positive responses against a background of seminal events like 9-11 and the start of the Iraq war reveals the volatility of the public’s confidence in the president. Over 50% of respondents to Gallup’s survey  expressed a “great deal” or “quite a lot” of confidence in George Bush before and after 9-11.  His ratings fell  sharply after the invasion of Iraq. The justification for the war collapsed when the public learned that there were no WMD, or weapons of mass destruction, in Iraq. By the end of 2006, positive sentiment was just 25%, less than half the results at the start of the Iraq war. In 2007, the Bush administration committed troops to ensure security in the capital city of Baghdad and this helped turn the momentum of the war. The success of this strategy called the surge helped lift confidence in the president. Notice that confidence in Biden’s presidency is about the same as the confidence in the Bush presidency in 2006.

According to Ballotpedia, 94% of Congressional members are re-elected yet survey respondents have a low confidence in Congress as an institution. On a bipartisan vote 22 years ago, Congress authorized the Iraq war. Within a year, confidence ratings sank and have never recovered. Today positive sentiment is less than 10%. The rules of both the House and Senate are designed to let a few key people in either body control the flow of legislation to the floor of each chamber. Party leaders are more concerned about their own power and reputation than the voices of the people who elected the members of the House and Senate. Almost 250 years after fighting the British over taxation without representation we have lots of taxation and little effective representation.

Medical

The Affordable Care Act (ACA) was supposed to restore public confidence in our very expensive and bloated medical system. Judging by the responses to this Gallup survey question, the creation of this bureaucracy in 2010 has had little effect on the public’s confidence in the system as a whole. Many of the provisions in the act known as Obamacare rolled out slowly and the marketplace for insurance did not open until the beginning of 2014. When the online public exchange opened, its inability to handle the surge of applicants was a humiliation for the Obama administration. Despite the improving functionality of the public exchange and the greater access to health insurance, there was little effect on public confidence. In the initial months after the Covid-19 shutdown, confidence spiked but fell again to its former level the following year.  

Schools

Gallup’s 2020 survey of confidence in schools also saw of surge of support that declined to a pre-pandemic average the following year. The decline in confidence began after the onset of the Iraq war and continues to this day. At 26%, positive sentiment is only two-thirds of the level at the start of the Iraq war and matches a low set during Obama’s second term.

Banks

At the height of the housing bubble in 2006, almost 50% of survey respondents expressed strong confidence in banks. In the following two years, confidence plummeted and has barely recovered in the 15 years since.  This lack of confidence may explain the growing support for a digital currency alternative like Bitcoin.

What is the takeaway? A declining confidence in institutions can spark a revolution just as it did in the Progressive era a century ago. As people become discontent with the rules that govern their daily lives, they look to change the institutions that embody those rules. The people within those institutions are regarded as corrupt. Groups turn to violence in an attempt to restore the integrity of those institutions as they perceive it. In the years leading up to World War I, there were hundreds of bombings of prominent buildings and frequent riots to protest working conditions for adults and children, as well as living conditions within America’s growing cities. People were beaten and jailed for wanting freedoms that we now take for granted. Sixty years ago Bob Dylan wrote The Times They Are A-Changin’, heralding an era of protest and reform in the 1960s. This may be another seminal moment when people will demand a change in the rules because the old rules are serving so few.

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Photo by Sean Pollock on Unsplash

Keywords: Congress, President, schools, banks, medical, healthcare