Can We Trust This President’s Emergency Powers?

UNILATERAL POWERS - Part II

In my last post I explored President Trump’s threat to declare a state of national emergency in order to direct federal funding to build his Mexican border wall.  Carrying out this threat would not only be completely legal, but it would also be only a minor example of the extraordinary power Congress has conferred upon presidents.  Even the president’s authority to declare a state of national emergency in the first place is unilateral.  There’s no legal definition of emergency, no requirement that Congress ratify the decision and no judicial review.

The danger this poses to American democracy under this President cannot be overstated.

In a remarkable article in the Atlantic magazine, Elizabeth Goitein of the Brennan Center for Justice**  details these astonishing powers, their history and their implications.  (This is simply a must-read article for anyone concerned about the current danger to our democracy.)  She presents a brief video summary here.  Much of this post is based on Goitein’s article, although many of the details are confirmed elsewhere.

After declaring a national emergency, the president’s gains an astonishing authority.  While Congress could—under the National Emergency Act of 1976—legislate a limit on a particular use of that authority, it has never chosen to do so, and their legislation would be subject to a presidential veto, anyway.  The Supreme Court, of course, can declare any presidential action unconstitutional, but it also has infrequently done so and then only in retrospect.

Historical precedents for presidents declaring national emergencies include:

• President Abraham Lincoln declared a national emergency and suspended the constitutional right of habeas corpus, thus permitting detention of anyone without judicial review.  
• President Franklin D Roosevelt detained 120,000 US residents and citizens of Japanese descent in concentration camps for three years during World War II.  
• President GW Bush authorized warrantless wiretapping and torture after 9/11.

Once a national emergency is declared, a president has little incentive to vacate it.  Prior to the 1970s, there were hundreds of states of emergency still on the books, some over 200 years old.  The National Emergency Act specifies that national emergencies automatically expire after one year; a president, however, can re-authorize them indefinitely. Only nine of the thirty-six states of emergency that have been declared in the last 30 years have been allowed to lapse.

Once the president declares a state of national emergency, one hundred different legal provisions come into effect.  For instance, the president can activate laws allowing him to shut down many kinds of electronic communications inside the United States or freeze Americans’ bank accounts.

Provisions are declared for the particular conditions of the emergency, but once in effect those provisions can later be used for any purpose, even one unrelated to the initial emergency.  For instance, when President GW Bush invaded Iraq, he used the national emergency provisions declared after 9/11, even though there was no connection between 9/11 and the invasion of Iraq

  Few Americans are aware of these draconian unilateral powers that are more fitting a dictator than a democratically elected president.  Some of these are obviously necessary, for example, the authority to send aid and activate National Guard troops immediately after a natural disaster.  But racially profiling and (with absolutely no evidence of a link to the 9/11 attacks) detaining more than 1200 innocent Muslim-Americans and then holding them incommunicado for months was hardly necessary… or constitutional.

So far in American history, abuses of the presidential emergency powers (such as the detention of Japanese Americans) have been few.  This has depended, however, entirely upon the reluctance of presidents to use their authority.  But what happens when a president does not exhibit such reluctance?  In his dissent from the Supreme Court decision that allowed the detention of Japanese Americans, Justice Robert Jackson declared that each emergency power

lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.

The Brennan Center lists almost 130 powers.  For instance, under a 

national emergency, the president can unilaterally suspend the law that bars government testing of biological and chemical agents on unwitting human subjects.

The president can shut down or take control of

any facility or station for wire communication [upon his proclamation] that there exists a state, or threat, of war involving the United States. (my emphasis)

Although the application of that provision to the Internet has not yet been constitutionally tested, what if the president did use it to tamper with the Internet?  President Trump has, at least obliquely, threatened to do so when he said

I think that Google and Twitter and Facebook, they’re really treading on very, very troubled territory … And they have to be careful.

The American government confers enormous, unilateral powers upon the president that most Americans are ignorant of.  Some of these powers are dictatorial in nature and would be difficult to control if they were abused.  They could easily be used to move the United States government toward authoritarianism.

President Trump’s threat to declare a national emergency for purely political purposes gives us some idea of the autocratic possibilities for a president.  We can only hope that the President has inadvertently begun an essential debate about these extraordinary powers.

The authority of the president I’ve discussed above is only one part of presidential power.  In the next post I’ll look at others and explore the enormous danger they pose.

** Wikipedia describes The Brennan Center as a non-partisan institute that advocates for a number of progressive public policy positions.  The Media Bias Fact Check website describes it as “left center biased” and rates it “high for factual reporting.”