Other Presidential Powers

UNILATERAL POWER

Part III of Four

As I wrote in Part I of this series (The National Emergency Act and Unilateral Power), these four posts depend heavily upon an article in the “Atlantic” magazine written by Elizabeth Goitein in January 2019.

My most recent post explored a few of the better-known, unilateral powers that become available to presidents when they declare a national emergency.  In this post we will examine three specific, extraordinary, but less well-known powers, that can also be activated by presidential decree. 

The International Emergency Economic Powers Act
The International Emergency Economic Powers Act, or IEEPA, passed in 1977, allows the government to freeze or block assets of belligerent foreign governments or foreign nationals under “unusual and extraordinary threat to national security, foreign policy, or the economy.”  Presidents have used this law mostly to apply sanctions to hostile countries.  After 9/11, however, President GW Bush issued an executive order greatly expanding these powers by applying them also to organizations and individuals within the United States (including citizens).  Under this expansion, a person or charity could be designated even if there were only a suspicion that they were aiding a terrorist or a terrorist organization.  

Once a person or organization is “designated” under the order, writes Goetin,

no American can legally give him a job, rent him an apartment, provide him with medical services, or even sell him a loaf of bread unless the government grants a license to allow the transaction.  The Patriot Act [then] gave the order more muscle, allowing the government to trigger these consequences merely by opening an investigation into whether a person or group should be designated.

Several Muslim charities in the US, for instance, were designated only on the suspicion that their charitable contributions overseas benefited terrorists; no proof was needed. 

The provision also snared individuals.  Goitein again:

The Treasury Department [part of the Executive wing of the government and thus subject to the president] designated Garad Jama, a Somalian-born American, based on an erroneous determination that his money-wiring business was part of a terror-financing network.  Jama’s office was shut down and his bank account frozen.  News outlets described him as a suspected terrorist.  For months, Jama tried to gain a hearing with the government to establish his innocence and, in the meantime, obtain the government’s permission to get a job and pay his lawyer.  Only after he filed a lawsuit did the government allow him to work as a grocery-store cashier and pay his living expenses.  It was several more months before the government reversed his designation and unfroze his assets.  By then he had lost his business, and the stigma of having been publicly labeled a terrorist supporter continued to follow him and his family.

The problem in our context is that the president can designate an individual or an organization unilaterally, regardless of the nature of the emergency.  Congress remained silent in the face of President Bush's actions so the provisions of IEEPA have never been constitutionally tested.

The Insurrection Act of 1807
Another set of presidential powers exists under the Insurrection Act of 1807.  Despite the age of the Act, it’s still in effect although it has been amended several times.  Under this Act, the president may

deploy federal troops unilaterally if he determines that “rebellious activity” in the country has made it “impracticable” to enforce federal law through regular means or because he deems it necessary to suppress “insurrection, domestic violence, unlawful combination, or conspiracy” (terms not defined in the statute) that … “hinders the course of justice.”  [Goetein]

Before reading Goetein’s article, I believed, like many, that the Posse Comitatus Act of 1878 prevented the military acting as a domestic police force.  But it turns out this is not true: the Act states that the authority to use the military for law-enforcement purposes must derive from the Constitution or from a statute, and, it seems, it’s the president who makes the determination of what derives from what.  President Eisenhower sent troops into Little Rock, Arkansas, to enforce school desegregation.  President HW Bush sent troops into Los Angeles to quell the Rodney King Riots in 1992.

The extent to which President Trump could use these powers, and under what conditions, are not well-defined.  The Supreme Court has been vague in many of its interpretations.  But if President Bush could send troops into Los Angeles to quell riots, why could President Trump, (justified by a few violent actions of Antifa, the radical left-wing, direct action, political action group), not send troops into Washington to break up a demonstration against his policies?  The extent of presidential power in this example is not clear, of course, but there is enough precedent for the president to take immediate action and let the courts work it out later.

This is another of the troubling realities of President Trump's possessing such unilateral powers: Many of them have never been used, and so have never been tested in the courts.  We don’t know what the limits on presidential powers in such situations could be.  Under this President, the dangerous possibilities are many.

Presidential Emergency Action Documents

Finally, there exists a series of “Presidential Emergency Action Documents” (PEADS) that originated in the 1950s during the Eisenhower administration.  They were intended to ensure continuity of government in the wake of a Soviet nuclear attack.  These documents – added to and updated from time to time – comprise draft executive orders, proclamations, and messages to Congress.  Like other emergency orders, however, they can be used during any other emergencies, too.  Unfortunately, PEADS are confidential and closely guarded within the government; none has ever been publicly released or leaked.  But their contents have occasionally been described in public sources.  Some provisions would

authorize not only martial law but the suspension of habeas corpus by the executive branch, the revocation of Americans’ passports, and the roundup and detention of “subversives” identified in an FBI “Security Index” that contained more than 10,000 names.

Other than these general descriptions, we have no idea how circumscribed (or not) these provisions are.  They were created in a time when presidents could be trusted to act responsibly.  What happens when they can't be trusted?

The only way most of these presidential powers could be limited is through congressional action, usually a two-thirds vote of each House of Congress.  Since Congress has so far not even discussed limiting, for instance, the clearly unconstitutional, de facto, war-making powers that presidents have used for decades, it seems highly unlikely that this Congress would be willing to consider limiting all these many powers.

Other Congresses have managed to, however.  In 1978, the bipartisan Church Committee, led by Senator Frank Church, held startling hearings on the misuse of intelligence powers.  The hearings culminated in the Foreign Intelligence Surveillance Act (FISA), which significantly limited the surveillance power of the executive branch of government.

Those were bipartisan times, however.  As long as we continue along this fratricidal political path—seeing each other not as colleagues but enemies, thinking of compromise as betrayal—there is little chance that a similar committee could ever develop in 2019.

These almost unlimited presidential powers, infrequently used but available still, are, as President Trump's behavior reminds us, stark threats to our democracy.  They will not be easy to reverse.  It’s important to educate the electorate now about the threats in order to begin a movement.  It will not be a short or simple process to teach people or transform that them into an educated electorate! 

But we must begin!  In the next post we'll look with clear eyes how to begin.