One of the results of an exception being created is that the politics become unitary. Essentially the politics around the exception or emergency become the executive and executive's alone. The health of liberal democracy is dependent upon political competition, discussion and deliberation. Removed of its liberal component democracy is reduced to the mechanical action of voting.
An establishment of a state of exception requires several a priori: precaution against a plausible catastrophe, the executive taking over judicial expression and a submissive legislative who is willing to legitimize the exception in legislation.
Parliaments are on the backfoot in this area anyway, as the executive dominates the legislative and decides what bills are pushed through or hit the floor. With the recent dominance of the party-machines in Australia and the United States at the federal level we have seen the deliberative process destroyed entirely in the legislative.
In the United States the recent round of legislation which legitimizes exception governance is the Patriot Act. Amongst other things it allows the executive to avoid having Senate confirmation for US Attorney appointments. The recess clause in the US Constitution has often been used for exception appointments, that this got through in the Patriot Act is remarkable.
In Australia the Migration Act is the main source of legislative legitimization for exception governance. This is not new, the clause requiring fluency in multiple European languages from the 1950s is an example of legislation enabling adhoc and arbitrary executive and executive official's decisions.
There is an argument for Ministers and Executive Officials and Bureaucrats to have that power as individuals often use their representatives familiarity with the arcane behaviour of the modern state to navigate the bureaucracy. For instance my green card application was stalled until our local New Jersey Senator got involved. But this is a failure of the modern state's organisation and processes.
When an exception or emergency is established it makes the politics unitary. Unfortunately Carl Schmitt's description of all this is proving to be accurate. With the establishment of the exception the politics become us and them; not the competitive, deliberative and discursive nature of liberalism. Under an exception, the 'them' can be sacrificed to the politics.
As an example, in the United States in 2002 and 2004 during the Congressional and Presidential elections which were fought under the extended exception of the Great War Against Terrorism those that disagreed with politics of the executive were painted as traiters and treasonist.
The only reason this could be claimed was because the politics became unitary, and as a consequence the liberal nature of the system was removed and the politics of the state and election became the executive's.
Obviously civil libertarians and the political opposition can fight against this but they have to do so as a 'them' not as political competitors in a liberal political system.
So the establishment of exception drains the liberal out of liberal democracy.
Fortunately exceptions tend not to be absolute and are usually contained in small areas and for short periods of time, though they often threaten to became permanent emergencies.
It is interesting to note that the electoral season in the Australian federal system has already claimed two exceptions. The first was the Indigenous issues, and now the Haneef issue. Both cases absolutely required a justified level of government involvement; but they did not justify the establishment of exception.
In the Haneef issue, where the government was right to bring him in for questioning over his association with those that committed criminal acts in the UK, once the exception was established with the Migration Act and the gazumping of the judicial, the trial ceased to be in the ordered private space of the court room and instead became a political trial where guilt is still being fought over in the public political space.
The executive, the defendant and lawyer are arguing their cases in the media, not infront of an impartial judge. The executive has made the politics unitary and has taken over the judicial component of it as a political trial. It may be that Haneef should be locked up for association with known and active terrorists, but politics is not the way to determine it, the judicial is, lest it become tyranny of the majority.
In both cases of exception discussed above the political opposition acquiesced to the government. In the case of the national emergency over indigenous issues it was as a war cabinet. In the Haneef investigations the opposition agreed with the executive. Political dissent only came from the Democrats and Greens.
Anyone who thinks this form of exception governance is limited to conservative parties is kidding themselves. While it is a form of conservative governance (ie not liberal) the Labor Party is just as capable of using it to inform governance.
An example of this is the NSW Labor Government after the Cronulla Riots which passed the Law Enforcement Amendment that enables the confiscation of property and the isolation of an area. Effectively with police checkpoints. Again the civil libertarians and the judical become the political 'other'.
However this made the politics unitary as any dissent on the emergency becomes a 'them' or enemy of the emergency. Peter Debnam's only competitive movement without becoming a 'them' was to endorse stronger prohibitions within the emergency:
The Opposition supports rushing the bill through the House, but there are some difficulties about it. Opposition members do not oppose the passage of the bill but we wish to highlight a number of concerns with it. The bill simply is not strong enough in almost all its provisions.That is how we get ludicrous speed legislation like the Law Enforcement Amendment and the Migration Act which never fall off the books and enable future exceptions. Exception governance, apart from being repugnant to republicanism and trashing the liberal in liberal democracy, is actually becoming the norm at all levels of government as more and more executives see the value in exception becoming "a new rule of permanence, a new long-lasting condition of suspension of the rule of law, whereby politics could become the product of a succession of ad hoc decisions made by government officials and bureaucrats" The binary differentiator in politics is now liberalism and conservatism. Exception governance manages to remove the liberal. In an election season it limits the scope of politics that can be liberally competed over as the areas of emergency effectively rope off the politics of the emergency from competition or deliberation. Unfortunately we are seeing exceptions increasingly being used as an electoral advantage. Update - Ken Parish commented on troppo's missing link that this post did not mention Giorgio Agamben. State of Exception gets discussed often enough on South Sea Republic that I don't always explicitly mention that connection every time. Agamben mainly explored the legal nature of a state of exception where this post tries to explore the political aspects of it and the impact on electoralism and democracy.
