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Friday, September 30, 2016

Designated Survivor, S1E2

I think I am out.

In part, as one reviewer said, it is a network drama--everything is on the nose and explained, in a way that comes across as stilted and unrealistic. For example, when the President reveals that he had lied about undercover agents to get the governor of Michigan to order the state police to stop rounding up Muslims, his aide announced "he was bluffing." Thanks for that. In part, it takes a craven and unrealistic view of the media and the public and how they are likely to react to, and report on, this story. A lot has changed in our political and media culture since 2001, to say nothing of earlier. But I would expect that, at least during the first 48 hours, someone in Kirkman's position would get a great benefit of the doubt from the press and the public, much as Lyndon Johnson did.

Still, the show followed some interesting threads this week. Unfortunately, I am just not sure the interesting threads overcome the other, less enjoyable pieces of the show.

The relevant story line (ignoring the whodunnit investigation and the drug-dealing teenage son, neither of which interests me) is that the Governor of Michigan ordered State Police to roundup Muslims in Dearborn, resulting in many arrests and the beating death of one teenager by a police officer (captured, of course, on video). The Governor explicitly rejects Kirkman's presidential authority, insisting Kirkman is not "his" President and that the Governor is the highest authority in the state.

This presents an interesting continuity-of-government problem--what if the governor of a State, an independent sovereign, declines to recognize the authority of the acting president. I believe the non-craven view of politics would prevail, at least in the early hours.

But the show goes off the rails when Kirkman looks for a solution. He speaks with two people from the Attorney General's office (or maybe two possible candidates for AG), who give absolute gobbledygook for advice. Thing 1 suggests the President can "invoke the Supremacy Clause" (a phrase which is meaningless) and issue an Executive Order requiring the governor to force his police to stand down (something for which there is no legal authority). Thing 2 says an executive order can be perceived as "hostile," instead recommending a presidential proclamation; when Thing 1 responds that would be a weak, symbolic, empty gesture (it is), Thing 2 reminds that President Bush used proclamations to secure disaster areas after Hurricane Katrina--which might have been effective because FEMA was in charge of the area, but has nothing to do with the current problem. Naturally, the lawyers both come across as useless schmucks. Later, the President's wife (also a lawyer) reminds her husband of Kennedy calling out the National Guard against George Wallace, but Kirkman rejects that as a "nuclear option."

Missing in all of this, of course, is that the President cannot simply order--via national guard, proclamation, executive order, or video phone call--states and state officials to do or not do anything. Even if the state is acting unconstitutionally, the federal government cannot simply tell the state what to do (or it can, but cannot expect the order alone to have any legal effect). The correct answer to the problem is for the US to sue Michigan for this massive constitutional violation, while perhaps bringing a § 242 prosecution against the officer who beat the kid to death. Or the US could support the private lawsuits that the ACLU (which is described as denouncing the round-ups, but nothing more) would be sprinting to the courthouse to file. And when the court orders the state to stop rounding up every Muslim in the city, either a) the governor complies with the order (because they usually do) or b) Kirkman calls in the National Guard (the show, like everyone else, forgets that Kennedy could call in the National Guard only after a federal court had enjoined Wallace from interfering with integration of the university--Kennedy did not simply annouce that Wallace had to stop interfering and then send in troops).

And even if a lawsuit takes time, the threat of a lawsuit and its enforcement might have been enough to get the governor to stand down. In fact, it might have been a good way to show Kirkman's power: "You may not regard me as 'your president,' but vested in me is the executive Power of the United States and I can still bring it down on you and your State if you do not fall in line." That would have been a better show of legal force; instead, the show went for Kirkman's cleverness (he lied that the sweep had caught up undercover federal agents, so the governor was obstructing justice) in an unrealistic maneuver.

Of course, a lawsuit would be more "hostile" than an executive order (especially because it actually would be valid in law, so it would have, you know, actual force). But here is a different narrative problem. During a public appearance at the bomb site, the public and press begin shouting at Kirkman about the civil rights violations in Michigan (interrupting his Bush-esque speech on a bullhorn), accusing him of not being concerned about such violations and of allowing Americans to be beaten. But if that is the public mood (that the Muslims being arrested are "Americans" deserving of protection), then the lawsuit and enforcement of the resulting injunction would be quite popular, or at least not seen as hostile. In which case, this ceases to be a "nuclear" or "hostile" option of which Kirkman should be afraid. The show wants to have it both ways narratively--Kirkman is under attack for not doing anything about civil rights violations, but he would be pilloried if he did something because the nation is again afraid of, and hostile to, Muslims.

Finally, we get talk of reconstituting the government. Kirkman insists on putting together a cabinet and sends his HUD aide and the WH Deputy Chief of Staff (the two clearly have had sex in the past) to come up with names. There is no mention of states either appointing Senators or calling for House elections. This raises one interesting, although unexplored, point: With no Senate (and again, no mention of appointments), no one can be confirmed as a cabinet officer; they only could be acting secretaries. Given that, would an acting president seek out new appointees to these posts? Or would he just elevate the # 2 in each department to acting secretary, to maintain some continuity within the department?

As I said, I think I am out. Because although the show has teased some interesting threads, it is not playing them in a way I find interesting or enjoyable.

Posted by Howard Wasserman on September 30, 2016 at 09:53 AM in Culture, Howard Wasserman, Television | Permalink


I don't think that a President needs to await a court order to federally mobilize the National Guard. 10 USC 332 authorizes the President to act without recourse to the courts:

Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.

Posted by: LAWRENCE WINANS | Oct 12, 2016 11:24:50 PM

I think both of those are about using federal troops to put down Shay's Rebellion, not to stop officially approved conduct by state officials against its own citizens. But then have the lawyers talk about that (which would be both interesting and informative), rather than "invoke the Supremacy Clause."

Posted by: Howard Wasserman | Oct 1, 2016 8:55:38 AM

I think both of those are about using federal troops to put down Shay's Rebellion, not to stop officially approved conduct by state officials against its own citizens. But then have the lawyers talk about that (which would be both interesting and informative), rather than "invoke the Supremacy Clause."

Posted by: Howard Wasserman | Oct 1, 2016 8:55:38 AM

Relatedly, wouldn't the Insurrection Act authorize presidential deployment of military to prevent state-enforced civil-rights violations, even absent a judicial determination of such?

Posted by: Hash | Sep 30, 2016 8:59:16 PM

Howard -- is it clearly established that the President can only use the National Guard against state officials to enforce a federal court injunction, rather than directly enforcing the underlying constitutional prohibition pursuant to his Take Care powers? Isn't part of the reason for the Posse Comitatus Act that the military otherwise could have been used as a federal police force?

Posted by: Hash | Sep 30, 2016 8:09:04 PM

Sure. See also, Coolidge's dad:


I don't think it needs to be the Chief Justice regardless.

Posted by: Joe | Sep 30, 2016 7:49:14 PM

Judge from the DC Circuit (although they called the court by the wrong name). Outside of an inauguration, it need not be the CJ. LBJ was sworn in by a district judge on Air Force One.

Posted by: Howard Wasserman | Sep 30, 2016 7:26:41 PM

Who swore him in?

Posted by: Joe | Sep 30, 2016 7:23:33 PM

Actually, it's worse than that: It's how the elite *believes* the non-trained population views government and government processes.

Posted by: Howard Wasserman | Sep 30, 2016 1:25:11 PM

I must say, I haven't watched an episode. The hipster glasses are just too much to overcome. That said (and again, I haven't seen minute one of the show), perhaps the show presents a useful social study--namely, a way to see how the non-legally and non-politically trained population views the government and government processes.

Posted by: YesterdayIKilledAMammoth | Sep 30, 2016 1:08:29 PM

Leaving aside all of the obvious security-and-procedure errors (e.g., the Secret Service didn't confiscate all family members' phones and issue them new ones that had been "secured"? really? well, that would have knocked out one subplot too early, I suppose), one must wonder at the utter lack of lawyers. In DC, no less.

The new First Lady is a lawyer, but hasn't dragged her firm in. There are more former Solicitors General and assistants living in the DC area than one can shake a volume of US Reports at. There are entire staffs at the Pentagon and various service headquarters (e.g., the Air Force Legal Center at Bolling AFB, across the Anacostia River from the bombing) who know the limits of Posse Comitatus pretty extensively.* And, perhaps most egregiously, the probability is pretty damned high that at most a quarter of the White House Counsel's office would have been at the bombing event. In sum, Kirkman was NOT limited to getting his advice from two argumentative (and largely ignorant, but we can safely blame that on the screenwriters/showrunners) jerks "from Justice" for advice on how to deal with Michigan.

I blame it on the showrunner(s), for a reason noted early in the review above: None of the showrunner(s) — in this day of constant social media and internet searching during broadcasts — think the public can or would research anything that wasn't immediately apparent. Umm, really: For a show most likely to be watched by political junkies, there's no knowledge or curiosity beyond that of a network executive?

And there's a lot of ignorance about chains of command in the military, too. If I correctly heard one offhand comment, all of the Joint Chiefs were at the State of the Union. So who is this four-star clown? And even if he's one of the Joint Chiefs himself, he's NOT the Chairman (a specific position that is Congressionally confirmable, just like "Chief Justice of the United States"), who always attends the State of the Union. So, I repeat: Who is this four-star clown, and why did he think he could be in place... and why aren't the other services visibly jockeying for position, even if it's the Vice Chairman? (Perhaps because — unlike, say, The West Wing — there doesn't appear to be anyone in a position of authority on the production staff, or even a position of consultation, who has actually seen the executive branch in action. Or inaction, as the case may be.) Where's Col Martin Casey when we need him... or is this supposed to be what happens when there is no Col Casey (now a three-star flag officer's position, but that actually makes it better for TV)?

On the evidence thus far, Jack Bauer and his cohorts had a firmer grasp on the mechanics of government than do the showrunners of Designated Survivor. And that's not a good thing.

* Every commissioned officer knows the general limits of Posse Comitatus better than the showrunners: It's a required part of the commissioning curriculum and a required periodic review for certification in the Law of Armed Conflict. Back during the height of the War on Drugs and the first bit of nastiness in the Arabian Gulf, especially... about the time many of the military officers depicted would have been coming on active duty for the first time.

Posted by: C.E. Petit | Sep 30, 2016 11:58:11 AM

Impressive that you survived two episodes. I lasted under a minute.

Posted by: anon | Sep 30, 2016 11:54:57 AM

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