The Return of the Crown Jurist

In an interview with Sean Hannity on February 18, 2025, Elon Musk, the head of the Department of Government Efficiency, expressed his frustration at criticisms of the Trump Administration. He commented that, “If the will of the president is not implemented and the president is representative of the people, that means the will of the people is not being implemented, and that means we don’t live in a democracy.”¹ Similarly, on the other side of the globe, President Xi Jinping has consolidated his power over China. In 2022, he secured a historic third term as president with a Politburo Standing Committee and National Congress stacked with his supporters.²

The political trends of China and the United States to consolidate power in the hands of the executive harken back to the legal theory of Carl Schmitt. Schmitt was a legal jurist who worked and lived in the Weimar Republic. In this era, he helped to orchestrate the legal takeover of the Nazis and joined the party in 1933, becoming known as the “crown jurist” of the Third Reich.³ During his tenure, Schmitt would defend some of the Nazis’ most atrocious acts such as the Nuremberg Laws.⁴

Today, Carl Schmitt is remembered for his tracts criticizing liberalism. In his polemics, he criticized liberal democracy as undermining the very nature of politics and serving as a cover for interest groups to pursue their own interests at the expense of the masses. In its stead, he believed complete sovereignty rested in the hands of the sovereign, who he believed embodied the people’s will. To understand the consolidation of the executive in the 21st century requires a thorough understanding of Schmitt’s criticisms of liberal democracy and his proposed alternative.

Figure 1. Elon Musk, left, listens as President Donald Trump speaks in the Oval Office of the White House in Washington, D.C., on Feb. 11, 2025. (Photograph by Jim Watson, Elon Musk, left, listens as President Donald Trump speaks in the Oval Office of the White House in Washington, D.C., on Feb. 11, 2025, February 11, 2025, AFP, Washington D.C., https://www.lib.sfu.ca/help/cite-write/citation-style-guides/chicago/chicago-citing-images).

The Concept of the Political and Sovereign Dictatorship

In contrast to mainstream notions of a government that serves a utilitarian end, Carl Schmitt believed that the basis of the state is the political, and the political is defined by the friend-enemy distinction.⁵ The distinction between friend and enemy is not simply a difference of opinion over tax or education policy. For Schmitt, the political arises from an extreme antagonism between two distinct groups. It is an antagonism that allows for the possibility of violence between these separate factions.⁶ The antagonism that Schmitt envisions can have a variety of sources: ethnicity, religion, language, etc.⁷ In regard to how the friend-enemy distinction is made, it is the state that decides what is and is not political.⁸

While the friend-enemy distinction is the basis of political life, Schmitt argues that individualistic liberalism undermines that foundation. Individualistic liberalism is fundamentally distrustful of politics, seeking to curtail state power to protect individual freedoms. To this end, the state can no longer demand from its citizens that they sacrifice themselves to fight the enemy because liberalism prioritizes the individual above all else.⁹ For liberalism, no one can force the individual to sacrifice their lives if they do not want to. Thus, liberalism leads to a society where the private, individual sphere subjugates the existential questions of human existence.¹⁰ However, while the contemporary reader may not see depoliticization as a negative, Schmitt believed it deprived humans of a higher purpose and meaningful life.¹¹

Since liberalism is a depoliticizing force, Schmitt contends that it cannot guide us on how to exercise legal norms in a democracy.¹² It does not seem clear on how the law should be enforced. Resolving this ambiguity requires a sovereign that exists outside of the law, since the law itself does not give any explicit guidelines on how to resolve its inherent vagueness. For Schmitt, the sovereign is the individual who decides the state of exception, the ability to suspend the rule of law. However, Schmitt does not believe that the sovereign can declare a state of exception whenever he or she wants. In a democracy, the suspension of norms requires popular support, but the paradox of this situation is that Schmitt believes a sovereign ruler is most needed in a heavily polarized and divided society. In such a society, how can the sovereign suspend the law if he or she does not have a widespread consensus?¹³

Schmitt’s solution to this dilemma is to introduce the concept of a sovereign dictator. The basis of this concept stems from the French Revolution, which Schmitt believes caused a transformation in the relationship between sovereignty and dictatorship.¹⁴ The French revolutionaries used dictatorial powers to create a situation of normalcy that would have allowed for a constitution to arise. To justify their extralegal methods, they claimed that they were acting in the name of the French people, not in their own sovereignty. From this, Schmitt conceptualizes the “sovereign dictator,” who is a dictator attempting to construct a new constitutional order in the name of the people rather than on the basis of his or her sovereignty as leader. In fact, Schmitt argues that the sovereign dictator is present at every founding of a democratic order.¹⁵

While the sovereign dictator resolves the ambiguity in liberal legal norms, he or she also counteracts liberalism’s depoliticization of the state. As stated above, Schmitt maintains that the depoliticization of the state is a negative because politics is the foundation of the state.¹⁶ In contrast, the sovereign dictator’s ability to designate the state of exception allows him or her to determine who is a friend and who is an enemy. By establishing the distinction of friend and enemy, the sovereign dictator establishes the political community that is the basis of the state.¹⁷

Thus, Carl Schmitt’s political and legal philosophy is characterized by three beliefs. First, the distinction between friend and enemy is the foundation of political life. Second, liberalism undermines the basis of political life and does not offer a guideline for the practice of legal norms. Third, the sovereign dictator possesses the ability to establish the basis of political life and guide the exercising of legal norms. With a proper overview of Schmitt's philosophy, we can now see how his views directly influence and help us to understand how authoritarian policies are advanced and justified in the United States and China.

Figure 2. Carl Schmitt as a student. (Photograph from Paul Noack, Carl Schmitt as a student, accessed on March 18. 2025, Wikimedia Commons, https://theconversation.com/carl-schmitt-nazi-era-philosopher-who-wrote-blueprint-for-new-authoritarianism-59835).

Schmitt in China

Schmitt’s reception in China began in the 1930s during the Republican era of China when the Guomindang, or Chinese Nationalist Party, ruled. Chiang Kai-Shek—the leader of the Guomindang—developed a great admiration for Germany’s rapid unification and moderation.¹⁸ Seeking to imitate its success, Chiang invited Max Mauer—a German artillery expert—to serve as a military advisor. Additionally, Chiang’s son–Chiang Wei-Kuo–participated in the Nazi annexation of Austria in 1938.¹⁹

As Chiang sought to emulate Germany, some Guomindang intellectuals from across the political spectrum adopted Schmitt’s ideas to pursue their own ends. For example, Zhang Junmai—who played an important role in drafting the 1940 Chinese constitution-–rejected Schmitt’s positions vis-a-vis the executive while accepting some of his other critiques.²⁰ Additionally, Xu Daolin-–a close associate of Chiang Kai-Shek-–pursued his PhD studies in Germany where he befriended Carl Schmitt and commented on his works in academic publications.²¹ While friends, Xu Daolin came to disagree with some of Schmitt’s views. Though both agreed that fundamental social values were more important than legal texts, Xu believed that Schmitt’s reliance on the executive to determine those values prevented discussion on what those values actually were.²²

Despite Schmitt’s reception among prominent Guomindang officials, his influence fizzled out after the Chinese communists won the Chinese Civil War in 1949, only reemerging in the 1990s. In this period, Liu Xiaofeng took charge in introducing Carl Schmitt to the Chinese academy by translating many of his works into Chinese. Liu’s translation efforts were so successful that one graduate from Peking University’s philosophy program commented that Schmitt’s writings have become a staple of the university’s academic establishment.²³

The effect of “Schmitt Fever” extends beyond academia and into policymaking. Jiang Shigong has been one of the leading intellectuals involved in incorporating Schmittian ideas into Chinese state policy.²⁴ Regarding China’s constitutional order, Jiang argued that the rule of the Chinese Communist Party serves as the fundamental basis of that order. As a result, he argued that China’s constitution should be amended to reflect the role of the CCP in the constitutional order, a suggestion that was implemented by the party in 2018. Additionally, Jiang authored a 2014 White Paper granting the Chinese government far-reaching jurisdiction in Hong Kong by arguing that the preservation of sovereignty takes precedence over civil liberties.²⁵

Figure 3. Jiang Shigong, professor and director of the Center for Law and Politics Studies at Peking University Law School. (Photograph from the Global Times, Jiang Shigong, Professor and director of the Center for Law and Politics Studies at Peking University Law School, accessed on March 21, 2025, https://www.globaltimes.cn/content/830815.shtml).

Alongside the elevated role of the Communist Party, President Xi Jinping has consolidated his power by shifting the party away from collective leadership to a model where he-–the general secretary of the Party—would be considered a first among equals in the Politburo. Xi Jinping achieved this through multiple means. He chaired “several small leading groups,” circumventing the premier’s traditional responsibilities of making economic policy.²⁶ Additionally, President Xi carried out purges of officials who were accused of corruption and disloyalty, among other things, while tightening his control over the military. Alongside these measures, the president has made himself the paramount leader of the Chinese Communist Party. In fact, Xi Jinping Thought on Socialism with Chinese Characteristics was amended into the constitution in 2017.²⁷ Xi’s success in consolidating power has allowed him to secure a historic third term as President of China in 2022.

Thus, Schmitt’s concept of the political and sovereign dictatorship has reached the highest echelons of Chinese political life. The 2014 White Paper establishes the party’s ability to suspend civil liberties in order to counteract threats to national sovereignty. Additionally, the 2018 constitutional amendment affirms that the CCP is the basis of China’s constitutional order. However, while the Party has been given an elevated role, it does not translate into the Party serving as the sovereign dictator. Rather, it is Xi Jinping—who has entrenched himself into the very being of the CCP—who is Schmitt’s sovereign dictator. He is now capable of leveraging his authority as General Secretary of the CCP and the party’s elevated role in the Chinese constitutional order to suspend legal norms and determine who is a friend or enemy.

Schmitt in America

While readers of Carl Schmitt have exerted an influence on Chinese state policy, the same cannot be said of American lawmakers and policy. Rather, American officials have pursued policy that mirrors Schmittian legal theory rather than directly drawing from it. The most prominent example of this is in the Unitary Executive Theory, or UET. Based on Article II of the U.S. Constitution, UET argues, “the President of the United States possesses sole authority over the Executive Branch.”²⁸ The most controversial part of the constitutional theory regards the belief that the president holds the right to impose his point of view on federal agencies and replace any federal employee.²⁹ Additionally, proponents of UET believe the president possesses “a reservoir of executive power that's not specifically set out in the Constitution that allows him to act as leader of the executive branch to enforce the laws and to defend the country in times of crisis and emergency.”³⁰

In the 21st century, President George W. Bush and his cabinet became the first presidential administration to adopt UET as a governing framework. In the aftermath of the September 11th attacks, Bush administration officials pushed for expanding the president’s executive authority. First and foremost, administration officials sought to increase the executive’s ability to use military force. A memorandum issued shortly after September 11th argued that the president possessed the sole authority on questions concerning the use of military force. In fact, if Congress passed a law restricting the president’s authority to use military force, he could ignore it.³¹

An example of the administration’s expansion of the president’s wartime powers can be seen in how it treated detainees. In January 2002, John Yoo—an official in the Justice Department-–authored memorandums arguing that detainees from the war in Afghanistan were not entitled to protections in the Geneva Conventions.³² These Justice Department memorandums provided legal arguments that shielded US officials from war crime charges for the way detainees were imprisoned and interrogated. Furthermore, the department’s legal arguments were put to the test as the CIA used torture—most prominently waterboarding—against prominent detainees such as Abu Zubaydah-–an alleged Al-Qaeda organizer.³³ To this day, no official in the Bush administration has been held accountable for the torture of detainees during the War on Terror.³⁴

Alongside the lack of accountability for abuses in the War on Terror, the expansion of the president’s wartime powers continued into the Obama, Biden, and first Trump administrations. For example, the Obama administration used military force in Libya, and under the Biden administration, military strikes against Yemen escalated. Similarly, the first Trump administration carried out airstrikes in Syria. In all three cases, the administration in power used military force without congressional approval.³⁵

Now, President Trump is continuing the trend of his predecessors and consolidating more power into the hands of the Office of the President. While his predecessors focused on expanding the President’s wartime powers, President Trump is actively attempting to exert the president’s power over all aspects of the Executive Branch. To achieve this goal, President Trump issued an executive order on February 18th asserting his authority over all federal agencies created by Congress.³⁶ However, it remains to be seen whether his grab for power will be successful. Currently, President Trump is being taken to the Supreme Court by Gwynne Wilcox, who was fired from her position at the National Labor Relations Board—an independent agency created by Congress to protect workers.³⁷ If the court rules in the president’s favor, UET would be further solidified into American political life.

Therefore, while American leaders may not be directly influenced by Schmitt, his ideas are reflected in the presidency’s growing power. In the War on Terror, the executive sought to suspend legal norms for certain detainees and allow for torture techniques to be used in interrogations. Additionally, they fought for the President’s right to bypass Congress in order to carry out military strikes. Now, with the second Trump administration, the presidency is seeking to consolidate all executive power into its hands. If the Supreme Court rules in favor of Trump, the president will be able to fire and replace any federal employee without cause and impose his will on all federal agencies. Thus, as Elon Musk alluded to, the presidency will become the equivalent of Schmitt’s sovereign dictator, possessing the ability to suspend norms and use dictatorial powers in the name of the American people to designate who is a friend and who is an enemy.

A Schmittian World

The U.S. and China are the world’s two most powerful countries. America is the largest economy in the world, and China is the second largest economy.³⁸ Additionally, Washington is the world’s preeminent military power, while Beijing possesses the world’s largest military force.³⁹ These two nations will dominate the world for the coming years, and to understand them requires examining the authoritarian turn of their domestic politics. Their authoritarian turn is marked by a consolidation of power in the hands of the presidency. Understanding this change in executive power requires turning to the works of Carl Schmitt. His concept of the sovereign dictator and understanding of politics influence and help us to understand why and how China and the U.S. have consolidated power into the presidency’s hands.

                                                    Works Cited

Balint, Benjamin. “The Nazi Jurist: A review of Carl Schmitt: A Biography, by Reinhard Mehring.” Claremont Review of Books, Summer 2015. https://claremontreviewofbooks.com/the-nazi-jurist/.

Bassin, Ian. “The interesting history and opportunity of Biden’s evolution on war powers.” Protect Democracy, March 5, 2024. https://protectdemocracy.org/work/the-interesting-history-and-opportunity-of-bidens-evolution-on-war-powers/.

Che, Chang. “The Nazi Inspiring China’s Communists.” The Atlantic, December 1, 2020. https://www.theatlantic.com/international/archive/2020/12/nazi-china-communists-carl-schmitt/617237/.

Erickson, Andrew. “What the Pentagon’s New Report on Chinese Military Power Reveals About Capabilities, Context, and Consequences.” War on the Rocks, December 19, 2024. https://warontherocks.com/2024/12/what-the-pentagons-new-report-on-chinese-military-power-reveals-about-capabilities-context-and-consequences/.

Gerstein, Josh and Jennifer Epstein. “Senate report: CIA misled public, Bush on use of torture.” POLITICO, December 9, 2014. https://www.politico.com/story/2014/12/cia-torture-report-113420.

Global Times. Jiang Shigong, Professor and director of the Center for Law and Politics Studies at Peking University Law School. Accessed on March 21, 2025. Photograph. https://www.globaltimes.cn/content/830815.shtml.

Jett, Jennifer and Megan Lebowitz. “Xi Jinping secures historic third term as leader of China.” NBC News, October 23, 2022. https://www.nbcnews.com/news/world/xi-jinping-china-third-term-rcna53539.

Knutson, Jacob. “What Is Unitary Executive Theory? How is Trump Using It to Push His Agenda?” Democracy Market, February 20, 2025. https://www.democracydocket.com/analysis/what-is-unitary-executive-theory-how-is-trump-using-it-to-push-his-agenda/.

Kruzel, John. “'Unitary executive' theory may reach Supreme Court as Trump wields sweeping power.” Reuters, February 14, 2025. https://www.reuters.com/legal/unitary-executive-theory-may-reach-supreme-court-trump-wields-sweeping-power-2025-02-14/.

Legal Information Institute. “Unitary Executive Theory (UET).” Accessed on March 27, 2025.

https://www.law.cornell.edu/wex/unitary_executive_theory_%28uet%29.

Madarang, Charisma and Nikki McCann Ramirez. “Musk Argues ‘Democracy’ Is Trump Being Able to Do Whatever He Wants.” Rolling Stone, February 18, 2025. https://www.rollingstone.com/politics/politics-news/elon-musk-donald-trump-hannity-democracy-1235271975/.

McCormick, John P. “Carl Schmitt: German jurist and political theorist.” Britannica, March 8,

2025. https://www.britannica.com/biography/Carl-Schmitt.

Mitchell, Ryan. “Carl Schmitt and the Development of Conservative State Theory in China.” CUHK Law. October 14, 2020. Educational video, 1:29:07. https://www.youtube.com/watch?v=PBO9W5oqKK8.

Noack, Paul. Carl Schmitt as a student. Accessed on March 18. 2025. Photograph. Wikimedia Commons. https://theconversation.com/carl-schmitt-nazi-era-philosopher-who-wrote-blueprint-for-new-authoritarianism-59835.

Reuters. “Explainer: The ways China's Xi Jinping amassed power over a decade.” Accessed on March 26, 2025. https://www.reuters.com/world/china/ways-chinas-xi-jinping-amassed-power-over-decade-2022-10-10/.

Sangillo, Gregg. “The New Imperial Presidency.” American University, July 8, 2016. https://www.american.edu/ucm/news/2016708-executive-power.cfm.

Schmitt, Carl. The Concept of the Political: Expanded Edition. Translated by George Schwab. The University of Chicago Press, Chicago and London, 2007.

Silver, Caleb. “The Top 25 Economies in the World.” Investopedia, January 29, 2025. https://www.investopedia.com/insights/worlds-top-economies/.

The Editorial Board. “Prosecute Torturers and Their Bosses.” The New York Times, December 21, 2014. https://www.nytimes.com/2014/12/22/opinion/prosecute-torturers-and-their-bosses.html.

The New York Times. “A Guide to the Memos on Torture.” Accessed on March 26, 2025. https://archive.nytimes.com/www.nytimes.com/ref/international/24MEMO-GUIDE.html?_r=0.

U.S. News & World Report. “Overview of United States.” Accessed on March 28, 2025. https://www.usnews.com/news/best-countries/united-states.

Vinx, Lars. “Carl Schmitt.” The Stanford Encyclopedia of Philosophy, Spring 2025. https://plato.stanford.edu/entries/schmitt/.

Watson, Jim. Elon Musk, left, listens as President Donald Trump speaks in the Oval Office of the White House in Washington, D.C., on Feb. 11, 2025. February 11, 2025. Photograph. AFP. Washington D.C. https://www.lib.sfu.ca/help/cite-write/citation-style-guides/chicago/chicago-citing-images.

1. Charisma Madarang and Nikki McCann Ramirez, “Musk Argues ‘Democracy’ Is Trump Being Able to Do Whatever He Wants,” Rolling Stone, February 18, 2025, https://www.rollingstone.com/politics/politics-news/elon-musk-donald-trump-hannity-democracy-1235271975/.

2. Jennifer Jett and Megan Lebowitz, “Xi Jinping secures historic third term as leader of China,” NBC News, October 23, 2022, https://www.nbcnews.com/news/world/xi-jinping-china-third-term-rcna53539.

3. John P. McCormick, “Carl Schmitt: German jurist and political theorist,” Britannica, March 8, 2025, https://www.britannica.com/biography/Carl-Schmitt.

4. Benjamin Balint, “The Nazi Jurist: A review of Carl Schmitt: A Biography, by Reinhard Mehring,” Claremont Review of Books, Summer 2015, https://claremontreviewofbooks.com/the-nazi-jurist/.

5. Carl Schmitt, The Concept of the Political: Expanded Edition, trans. George Schwab (The University of Chicago Press, 2007), 19, 26.

6. Schmitt, The Concept of the Political, 33.

7. Lars Vinx, “Carl Schmitt,” The Stanford Encyclopedia of Philosophy, Spring 2025, https://plato.stanford.edu/entries/schmitt/.

8. Schmitt, The Concept of the Political, 29-30.

9. Schmitt, The Concept of the Political, 70.

10. Schmitt, The Concept of the Political, 72.

11. Vinx, “Carl Schmitt.”

12. Ibid.

13. Ibid.

14. Ibid.

15. Ibid.

16. Ibid.

17. Ibid.

18. Chang Che, “The Nazi Inspiring China’s Communists,” The Atlantic, December 1, 2020, https://www.theatlantic.com/international/archive/2020/12/nazi-china-communists-carl-schmitt/617237/.

19. Ibid.

20. Ryan Mitchell, “Carl Schmitt and the Development of Conservative State Theory in China,” Posted October 14, 2020, CUHK Law, 1:29:07. https://www.youtube.com/watch?v=PBO9W5oqKK8.

21. Ibid.

22. Ibid.

23. Che, “The Nazi Inspiring China’s Communists.”

24. Mitchell, “Carl Schmitt and the Development of Conservative State Theory in China.”

25. Che, “The Nazi Inspiring China’s Communists.”

26. “Explainer: The ways China's Xi Jinping amassed power over a decade,” Reuters, accessed on March 26, 2025, https://www.reuters.com/world/china/ways-chinas-xi-jinping-amassed-power-over-decade-2022-10-10/.

27. Ibid.

28. “Unitary Executive Theory (UET),” Legal Information Institute, accessed on March 27, 2025, https://www.law.cornell.edu/wex/unitary_executive_theory_%28uet%29.

29. Jacob Knutson, “What Is Unitary Executive Theory? How is Trump Using It to Push His Agenda?,” Democracy Market, February 20, 2025, https://www.democracydocket.com/analysis/what-is-unitary-executive-theory-how-is-trump-using-it-to-push-his-agenda/.

30. John Yoo, “Former Deputy Assistant AG Offers Perspective On Unitary Executive Theory,” interview by Ailsa Chang, NPR, May 8, 2019, https://www.npr.org/2019/05/08/721552525/former-assistant-ag-offers-perspective-on-unitary-executive-theory.

31. Gregg Sangillo, “The New Imperial Presidency,” American University, July 8, 2016, https://www.american.edu/ucm/news/2016708-executive-power.cfm.

32. “A Guide to the Memos on Torture,” The New York Times, accessed on March 26, 2025, https://archive.nytimes.com/www.nytimes.com/ref/international/24MEMO-GUIDE.html?_r=0.

33. Josh Gerstein and Jennifer Epstein, “Senate report: CIA misled public, Bush on use of torture,” POLITICO, December 9, 2014, https://www.politico.com/story/2014/12/cia-torture-report-113420.

34. The Editorial Board, “Prosecute Torturers and Their Bosses,” The New York Times, December 21, 2014, https://www.nytimes.com/2014/12/22/opinion/prosecute-torturers-and-their-bosses.html.

35. Ian Bassin, “The interesting history and opportunity of Biden’s evolution on war powers,” Protect Democracy, March 5, 2024, https://protectdemocracy.org/work/the-interesting-history-and-opportunity-of-bidens-evolution-on-war-powers/.; Sangillo, “The New Imperial Presidency.”

36. Knutson, “What Is Unitary Executive Theory? How is Trump Using It to Push His Agenda?”

37. John Kruzel, “'Unitary executive' theory may reach Supreme Court as Trump wields sweeping power,” Reuters, February 14, 2025, https://www.reuters.com/legal/unitary-executive-theory-may-reach-supreme-court-trump-wields-sweeping-power-2025-02-14/.

38. Caleb Silver, “The Top 25 Economies in the World,” Investopedia, January 29, 2025, https://www.investopedia.com/insights/worlds-top-economies/.

39. Andrew Erickson, “What the Pentagon’s New Report on Chinese Military Power Reveals About Capabilities, Context, and Consequences,” War on the Rocks, December 19, 2024, https://warontherocks.com/2024/12/what-the-pentagons-new-report-on-chinese-military-power-reveals-about-capabilities-context-and-consequences/; “Overview of United States,” U.S. News & World Report, accessed on March 28, 2025, https://www.usnews.com/news/best-countries/united-states.