Executive Orders and the Illusion of Democracy:

Ensuring National Security and Economic Resilience Though Section 232 Actions on Processed Critical Minerals and Derivative Products

The Executive invents rules. The Legislature abdicates its role, opting for obstruction or blind loyalty, or makes it law, while an increasingly politicized Judiciary interprets that law codifying power.

Carl Schmitt, the controversial German jurist and political theorist, declared in Political Theology (1922) that “Sovereign is he who decides on the exception.” For Schmitt, the true nature of sovereignty reveals itself not in the ordinary operation of law, but in the moment when the legal order is suspended. In this state of exception—such as war, rebellion, or national emergency—the sovereign steps outside of constitutional limits to preserve the political body. Rather than being constrained by the law, the sovereign stands above it, empowered to act precisely when the law falls silent. Schmitt’s conception was both a justification and critique of liberalism: he saw parliamentary democracy as too indecisive to respond to existential threats, and thus argued that real authority emerges not through procedure, but through the capacity to act decisively in crisis.

Giorgio Agamben, in Homo Sacer, seizes upon Schmitt’s theory to expose how the state of exception has become normalized in modern governance. In his view, the exception is no longer the anomaly—it is the rule. When governments routinely suspend constitutional protections through emergency powers, executive orders, security legislation, or indefinite detentions, they create zones of legal ambiguity. Agamben describes these citizens as bare life, stripped of political status and exposed to arbitrary power. It is the slow corrosion of democratic life: where law was once a guarantor of rights, it becomes a toolkit of control. As the exception becomes institutionalized, democracy is not overthrown—it is hollowed out from within.

This is not just about Trump, but equally about Biden, Obama, Bush, Clinton, Bush, Reagan and the long lineage of executives who have governed through exception. Even the seemingly benign influence of NGOs within the rights-based international order reveals the structural hypocrisy at the heart of liberal democracy. When the enforcement of rights is contingent on strategic interest, and when democratic norms are applied unevenly, democracy ceases to be a system of accountability and becomes a language of justification. In this way, the very tools meant to uphold democracy are used to undermine it.

“When all law is situational law, there is no law—only power wearing the mask of necessity.”

In such a world, legality is no longer grounded in consistency, precedent, or democratic deliberation, but in the immediacy of the moment. This is the Schmittian paradox: the sovereign claims legitimacy by suspending the very law they are meant to uphold. Agamben’s warning is that this logic, once unleashed, is not confined to emergencies. It migrates into everyday governance, where exceptions proliferate under new names—security, government efficiency, stability, emergency, executive discretion…

What we confront, then, is not the failure of law but the mutation of law, where legality bends to circumstance and authority justifies itself in perpetuity. When law is situational, democracy is no longer a rule of law—it is a choreography of power, staged and revised according to whoever pens the review for the media circus.

Presidential Actions

In theory, the U.S. Constitution provides for a delicate balance of powers: the president executes the law, Congress writes it, and the judiciary interprets it. But under the stress of national security, this tripartite structure can be undermined by the strategic exploitation of Presidential Actions.

Of these Presidential Actions: Executive Orders, Presidential Memoranda, and Proclamations were never intended to be instruments of unchecked authority. They are meant to coordinate, not dominate. Yet as Congress stalls and the Supreme Court oscillates between political allegiances, presidents have learned to wield these Presidential Actions not as facilitators of governance, but as instruments of domination in a battlefield where the rule of law is subjugated by the rule of precedent, untethered to the balance of powers.

In The Decline and Fall of the American Republic (2010), Bruce Ackerman has voiced the warnings of the potential abuse of these executive actions. Since 9/11, the definition of national security in the United States has undergone a profound and dangerous transformation. Once narrowly framed around protecting the territorial integrity of the nation and the safety of its people, national security has become an elastic and totalizing concept—capable of justifying virtually any action deemed necessary to preserve the interests of the U.S., its capital flows, and its global dominance.

This expansion is not merely rhetorical. The Patriot Act, followed by the rise of the Department of Homeland Security, mass surveillance programs, militarized borders, and extrajudicial drone strikes, signaled the arrival of a permanent state of exception. Under this paradigm, the threat need not be imminent—only imaginable. And what is imagined as a threat can include not just foreign adversaries, but protest movements, whistleblowers, migrants, and digital infrastructure.

Additionally, the Supreme Court’s 2010 Citizens United v. FEC ruling formalized a shift that was already underway: it legally redefined corporations as persons, capable of participating in political speech and protected by the First Amendment. In this context, corporations became citizens—and thus, their interests are now defended under the rubric of national security. This has profound implications.

Executive Orders

An executive order (EO) is supposed to guide the internal operations of the federal government, often to enforce existing laws. But EOs have increasingly been used to circumvent Congress altogether. They can impose sanctions, authorize drone strikes, ban immigrants, cancel regulations, or radically alter national priorities—without a single vote cast in the House or Senate.

The legal justification often hinges on broad, ambiguous statutory language or elastic readings of the president’s constitutional powers. When both Congress and the courts are captured by partisanship, executive overreach becomes executive routine. Instead of passing legislation, the president signs an order. The opposition party cries foul—but only until they hold the pen.

By itself, this defines a constitutional crisis.

Presidential Memoranda

Even more insidious than executive orders are presidential memoranda, which often carry the same legal weight as EOs but receive far less public scrutiny. Because they don’t require publication or citation of legal authority, they operate in the shadows—directing agency behavior, shifting budget priorities, suspending enforcement, or authorizing covert actions.

The issuance and rescission of DACA, for example, has been played out as a memorandum. It is a high-impact policy pushed through without debate, review, or vote, executed under the illusion of democratic consent.

Proclamations

Presidential proclamations are often seen as ceremonial—but that view is dangerously naive. While many are symbolic (Black History Month, National Arbor Day), others trigger statutory mechanisms or declare emergencies, such as Trump’s proclamation that redirected Pentagon funds to build a border wall after Congress refused, or in Proclamation 9888 (2019) reported that automobiles and certain automobile parts are being imported into the United States in such quantities and under such circumstances as to threaten to impair the national security of the United States.

The abuse lies not only in what proclamations do, but in how they blur the line between law and propaganda. They offer the illusion of democratic rhetoric while enacting the politics of executive will.

The Consequence: The Slow Death of our Constitutional Ethos

The real consequence of these abuses is not merely their existence, but their normalization. Executive overreach becomes institutional memory— its dangers obscured by precedent. Each administration builds upon the last, not to restore restraint, but to exploit the permissions it inherits. Over time, restraint becomes obsolete. What remains is a government without clear boundaries, where the rule of law gives way to the rule of precedent, and power is exercised not within stable frameworks but through exception. There is no clarity, no constitutional north star—nothing dependable to hang your hat on. In its place, a politics of contingency prevails, where law bends not toward justice, but towards privilege.

Ensuring National Security and Economic Resilience Though Section 232 Actions on Processed Critical Minerals and Derivative Products.

Yesterday (April 15, 2025), Trump signed an Executive Order “Ensuring National Security and Economic Resilience Though Section 232 Actions on Processed Critical Minerals and Derivative Products.” What sets this Executive Order apart from others is its explicit merger of economic policy with national defense, using Section 232 to treat global market dynamics, corporate supply chains, and resource extraction as sovereign security concerns.

Section 232 of the Trade Expansion Act of 1962, authorizes the President, through the Department of Commerce, to investigate whether specific imports pose a threat to national security. If the investigation concludes that they do, the president has broad authority to adjust imports—typically through tariffs, quotas, or other trade restrictions. While originally intended to protect core defense industries (like steel or aluminum) from foreign dependence during wartime, Section 232 has increasingly been used to justify protectionist measures under the expansive post-9/11 definition of "national security," including economic stability, supply chain resilience, and technological competitiveness. As such, it blurs the line between trade policy and national defense, giving the executive sweeping powers.

Additionally, at a time when U.S. government debt has surpassed $36 trillion—reaching approximately 124% of GDP, nearly 30% above the IMF's recommended thresholds for advanced economies—this level of indebtedness has itself become a national security issue. Yet unlike external threats, this crisis is largely self-inflicted, the product of decades of fiscal mismanagement, structural imbalances, and deliberate policy choices that have prioritized short-term political gains over long-term stability.

The Executive Order exemplifies how national security has been radically redefined to serve the strategic interests of corporations, financial markets, and global supply chains—shifting the state’s protective function away from the public and toward capital infrastructure. By declaring processed critical minerals and their derivative products essential to both economic and national defense, the EO merges the language of security with the imperatives of extractive industry, elevating pipelines, supply chains, and data centers to the status of sovereign concern. This convergence legitimizes the use of emergency powers and executive discretion in areas once governed by public deliberation—trade, environmental policy, and industrial strategy—while displacing democratic oversight and insulating corporate agendas from challenge.