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.”

The National Emergency Act and Unilateral Power

UNILATERAL POWERS - PART I

For several years, President Trump has been pressing Congress to fund his Mexican border wall.  Frustrated with his failure, he has recently been threatening to declare a “national emergency” in order to bypass Congress’s constitutional prerogatives to appropriate funds.  His threat has been widely condemned and he has himself seemed to vacillate on the wisdom of such a course. (As of this writing, he appears to be backing off.)  Whatever he does, however, it’s important to explore the peril his threat represents to democracy.  The question is:

To what degree is the irresponsible use of the presidential power to declare a national emergency an attack on democracy itself?

As determined by our Constitution, consequent Supreme Court decisions and congressional action, the president has enormous power to act unilaterally.  (In the next post, I’ll explore other unilateral powers accorded the president.)  For instance, a president can launch nuclear weapons completely on his own, issue executive orders that bypass Congress, and initiate military action even without congressional approval. 

The National Emergency Act of 1976 gives the president power to declare a national emergency in a:

situation beyond the ordinary which threatens the health or safety of citizens and which cannot be properly addressed by the use of other law.

As wide-open as it seems to be, this act was actually an attempt by Congress to limit the power of the president by terminating “open-ended states of national emergency and formaliz[ing] the power of Congress to provide certain checks and balances on the emergency powers of the President.”  Because the nature of any actual national emergency cannot be known in advance, however, the law does not (and probably cannot) offer an explicit definition of “emergency.  The law also confers upon the president extraordinary latitude to define "emergency" as they will.  The power given to the president is necessarily unilateral because time is usually of the essence: Action must be taken quickly without political considerations or delay by court challenge.  In a crisis, the president must be given flexibility to redirect federal funds.


As Washington Post columnist Greg Sargent has pointed out, President Trump’s own words have suggested that the border situation is not, in fact, a national emergency but that he is using his threat as a political tool.  When reporters, for instance, asked the President what his “threshold” was for declaring a national emergency, he said, “My threshold will be if I can’t make a deal with people that are unreasonable.”  In other words, declaring a national emergency is an alternative that could be invoked if there is no deal to fund the wall and end the government shutdown.  In other words, this is not a real emergency; the threat is but a bargaining chip.

Although some commentators seem to disagree, the cynicism of Trump’s “justification” is probably irrelevant. It is likely that President Trump does have the power to declare the “crisis” at the Mexican border a “national emergency” no matter how preposterous his justification may seem to anyone else.  While his action will certainly be challenged in court, the Supreme Court is unlikely to allow a precedent that would call for future courts to substitute their own policy judgments for the president’s; otherwise, any such presidential declaration could be delayed indefinitely by court challenges, obviating the purpose of the entire act.

So because the president’s decision will probably be legal, Mr Trump may single-handedly shred one more norm in the use of presidential power: Decisions of serious consequence need be neither in the best interest of the country nor even rational.  The framers of the Constitution, I suspect, never imagined a president who did not, at the very least, intend to serve the best interests of the country.   Our democracy depends on such norms: the norms depend on the president’s judgment. What are the implications when the president does not use good judgment?

As I have mentioned many times (also here, here, here, here and here), our democracy is a “fragile flower” that must rely not only upon laws and legal determinations but also upon the trust of the American people.  That trust is subverted when important issues are determined by obviously fraudulent, manipulative reasons. 


It turns out that the power the National Emergencies Act confers upon a president is not the only, or even the most important, unilateral power the president has.  President Trump’s threat to begin building the wall under the National Emergencies Act is only the tip of the iceberg.

The next post will explore the wider and deeper implications of the uncontrollable “Imperial Presidency.”

On the Path to Autocracy?

Over the past several decades, the world has watched as democracies around the world have stumbled toward authoritarianism.  While there have been occasional military coups, for instance in Egypt, much more common have been democratically elected leaders moving their countries step-by-step, through entirely legal means, into autocracy: Chavez in Venezuela, Erdoğan in Turkey, Orbán in Hungry, Duerte in the Philippines, and others. 

Are we on a similar path? David Frum quotes Abraham Lincoln:

If we could first know where we are, and whither we are tending, we could then better judge what to do, and how to do it.”

Harvard sociologists Steven Levitzky and Daniel Ziblatt have for several decades actively studied the gradual loss of democracy in these countries. Their recent book, How Democracies Die,  examines the processes—slightly different from country to country—by which democratic norms and practices failed and autocratic practices took their place. They then compare these lessons to the recent course of American democracy, a unique perspective that allows us to consider some answers to Lincoln's questions of where we are and whither we're heading under President Trump.

Levitsky and Ziblatt emphasize the importance of identifying the warning signs in candidates, even before they have been elected. They have developed four indicators that should concern citizens if presidential candidates (in words or practice):

• appear to reject the democratic rules of the game, as when Trump refused to commit himself to accepting the results of the election if he lost;
• appear to question the legitimacy of their opponents such as when Trump begin calling Hillary Clinton "crooked Hillary" and allowed his supporters to chant repeatedly, "Lock her up."
• appear to tolerate or encourage violence.  Several times during his campaign, the president refused to interfere when his supporters precipitated violent scuffles with protesters.  Washington Post fact checkers documented at least eight incidents in which Trump either encouraged his supporters to physically attack protesters or threatened to do so himself.
• show a willingness to curtail the civil liberties of their opponents, including the media, as when Trump repeatedly threatened to sue the media for unfavorable coverage.  He has tried to blacklist certain reporters or news outlets from his news conferences.  He has repeatedly threatened protesters with either imprisonment or violence.

It should be noted that no modern president has stepped over any of these lines, except Richard Nixon who, in his attacks on the press, crossed over only that last one.

Implicit in our democracy is a respect for the process, by which Levitsky and Ziblatt mean:

• “mutual toleration”—leaders don't treat political rivals as existential enemies, but rather as fellow loyal Americans.
• “forbearance,” or “restraint”—leaders don’t “play politics to the max”; that is, they don't use every legal power they have a right to in order to destroy their rivals.  What this means in actual practice is easier to say than to define clearly, but we can recognize that our politics is moving rapidly in that direction. 

Our Constitution is a fragile document that can easily be abused. The most blatant abuse of this power, in my opinion, came when Senate Majority Leader Mitch McConnell refused to allow consideration of Merrick Garland, President Obama's nominee for the Supreme Court.  Trump's government shutdown and threat to declare a national emergency in order to build a wall is another example.

The American Constitution foresaw the danger that any one branch of government—the executive (president), legislative (Congress) or judicial (the courts)—would become too powerful.  It separated the powers of those three branches so that each could override the others.

Fortunately, in the face of Trump's threats to democracy, the Supreme Court has acted quickly to counter some of Trump's most egregious attempts to arrogate power (such as when he attempted to block migrants from applying for citizenship if they didn't pass-through official checkpoints).

Unfortunately,  Congress has not acted so responsibly. The most serious failure of the legislature to reign in the President has been its refusal to censure or limit Trump in his more egregious actions.  Both Speaker of the House Paul Ryan and Senate Majority Leader Mitch McConnell—for purely political reasons—refused to investigate any charges against Trump, no matter how serious. Since Republicans have controlled all three branches of government for the last two years, there has been no adequate legislative critique of the executive branch of government, which gravely threatens our Constitution. 

To answer President Lincoln's questions, where we are is in the midst of a most serious battle for our Constitution and our country.  Whither we are heading, I'm afraid, is toward autocracy.  Even if Trump were to be constrained in his actions (such as through the power of the new House), the norms he has broken over these two years of his presidency will reverberate for decades.