ICE and the Justice Department: Covert Government Centralization?

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American fascism is likely to come in small steps, via gradual government centralization

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(02-15-2018, updated 07-11-2018)  One element of fascism is consolidation of government.  After all, a fascist government has one leader with absolute power. ICE (Immigration and Customs Enforcement) really wants to join the intelligence community. Such centralization of government would give them access to more information and surveillance in their search for illegal immigrants. With Trump as president this dream could become reality. He loves ICE. The less mercy they show the better. More children yanked away from their parents, more teens sent to countries they don’t know — it all translates to more support from Trump’s base.

Hitler’s American Model

I recently finished reading Hitler’s American Model: The United States and the Making of Nazi Race Law by James Whitman. The Germans, being the methodical bureaucrats they’ve always been, had transcripts of several of the most important meetings where the tools for the Nazi state were forged, where the Nazi ideology was translated into jurisprudence. Whitman focuses on one meeting in June of 1934, during which several jurists worked on three aspects of race law: anti-miscegenation laws which would forbid marriage between Aryans and Jews; a differentiation between “real” German citizens and others, including immigrants; and an unambiguous definition of a “Jew”.

The Nuremberg Laws

It had been practice in Germany since halfway the nineteenth century to base new German laws as much as possible on precedent, on existing law. In preparation for building the Third Reich, the Nazis researched race laws in other countries. They found that America had by far the most extensive race laws in the areas of anti-miscegenation, immigration and second-class citizenship. The transcript of the meeting, which led to the Nuremberg Laws, shows exactly how meticulous these lawyers and jurists were in their  studies, and it shows to what degree the Nazis were influenced by the American race laws; spoiler alert: it’s considerable.

For this post I want to focus on Whitman’s conclusion. He repeatedly states that because the Nazis studied America’s race laws in the 1930s,  that doesn’t necessarily mean that America was or is a fascist country. Nevertheless, when the Nazis were ready to create their race laws, they did look to America for inspiration and examples.

Was America Fascist?

So was America a fascist country in the 1930s? In this context Whitman discusses The American Dilemma: The Negro Problem and Modern Democracy, a book by Swedish social scientist Gunnar Myrdal (1944). Myrdal asks himself if the American South was fascist. He decides it wasn’t, because though the Southern states were, for all intents and purposes, one-party states, Southern state governments really weren’t central governments in any meaningful sense — they didn’t have absolute power, for one — and they were more governing against something (the rise of the Negro) than for something.

Whitman points out that the South was for something; they did support Roosevelt’s New Deal, for instance, especially the anti-poverty programs, and the Nazis were also against something, or rather, someone: Jews.  And Whitman makes the point throughout his book that the Nazis not only looked at the Jim Crow laws of the South, but also at the anti-miscegenation and immigration laws of other states. To evade the Fourteenth Amendment, America had to be circumspect about its race laws, especially those that created second-class citizens during Jim Crow. The Nazis, on the other hand, were quite explicit in their legislation.

Government Centralization is Key

Ultimately, though, Myrdal argues that the critical difference was that America lacked an organized racist/fascist  state. I agree that that’s a critical difference. In a fascist state everything is per definition prescribed by the central government that has absolute power. The Nazi Party wrote the Nuremberg Laws in part as a response to the street violence that had broken out in Berlin in the summer of 1933 — they feared chaos because it made them look weak. They wanted total control by the central government, including control of antisemitic violence. In America no government body was trying to appropriate lynchings and other forms of violence against non-whites. They were perfectly happy to leave those up to The (white supremacist) People.

The Separation of Powers

So we can breathe a sigh of relief, right? After all, the separation of powers and the division of government over many rather separate levels and departments will keep anything like that from ever happening in America. America will never devolve into government centralization with one leader who has absolute power, right?

Is It Really Guaranteed?

The executive branch (the president), the legislative branch (Congress) and the judicial branch (the Supreme Court) are supposed to guarantee the separation of powers. No one branch answers to another so no branch can ever have total control. But is that really guaranteed? Only as long as everyone involved agrees to it and behaves accordingly.  Trump clearly doesn’t agree. He doesn’t care about democracy — he wants absolute power.  This is not conjecture — he demands loyalty from everyone he appoints.

The Justice Department

Although the FBI does answer to the Attorney General (head of the Justice Department), who answers to the president, it has always been understood that the FBI operates independently and on the basis on non-partisanship. Trump refuses to accept this. Let’s set apart what happens to the special investigation if Trump fires Robert Mueller. Jeff Sessions, the attorney general, has recused himself from the Mueller investigation, so it now falls under the deputy attorney general. If Trump wants the deputy attorney general to fire Robert Mueller because he isn’t loyal to Trump, and if he fires the deputy attorney general if he/she refuses, and if he keeps on firing folks until he gets a deputy attorney general who will do his bidding, the FBI — and the Justice Department as a whole — will no longer be independent. The same could happen in other departments. That’s a step towards government centralization.

Congress

Trumps also seems to think Congress answers to him. When members of Congress criticize him, he tweets his ire and calls them un-American. Rational Americans hope that the midterms will result in a Democrat majority in Congress, but what if they’re wrong? What if Trump’s authoritarianism wins out? What if, gradually, the only way for most members of Congress to hold on to their seat is to be loyal to Trump, or at the very least not be too critical of him? If you think it’s impossible, you were probably one of the folks who thought Trump was never going to win — no way.

The Census Bureau

So back to centralization of government. Another creeping step toward centralization that ICE is excited about:  the Department of Justice would like the Census Bureau to add  a question about citizenship to the census.

(For non-Americans: the census is a questionnaire that Americans fill out every ten years, if they feel like it. This is how the government gets an approximation of the demographics of the country, states and cities. (Yes, really.) Federal, state and local government budgeting and policy are based on this voluntary, once-in-a-decade census. (I’m serious.) So starting this year every level of government has an elaborate and undoubtedly expensive campaign to drive home the importance of filling out the census form two years from now in 2020.

The Census Bureau is understandably worried that less people will participate in the census if they have to inform the government about their immigration status or citizenship. So the next logical step would be for the Trump government to make participation in the census mandatory.

ICE

It’s too easy to picture too many parts of government being consolidated under Trump. There’s already one Supreme Court Justice whose appointment doesn’t pass the smell test. Trump could work his way down the line in the Justice Department until he gets someone who’s loyal to him. ICE could very well merge with the intelligence community. And the Department of Justice could demand that the census aids in the persecution of undocumented immigrants. That’s just one area of government. Imagine, for instance, if the Education Department starts cooperating with Immigration and Customs Enforcement.

Total control can come in one fell swoop, like it did when Hitler became chancellor of Germany and the Nazi Party took over, or it can come in small steps.  As the Nazis pointed out: while they were explicit about their intentions, the Americans were masters at evading their own Constitution with lots of smaller, covert laws that led to the same results. Fascism in America is not impossible.

( Today’s writing prompt: Suspicious.)

(This post was first published on the blog Resident Alien: Being Dutch in America, under the title: “Covert Centralization?”, o2-15-2018)

Sources:

  • Myrdal, Gunnar. The American Dilemma: The Negro Problem and Modern Democracy. (New York, Harper Brothers,1944).
  • Whitman, James. Hitler’s American Model: The United States and the Making of Nazi Race Law. (Princeton, Princeton University Press, 2017).

Header image: https://www.houstonchronicle.com/opinion/editorials/article/ICE-arrests-12560056.php

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