What the President Could Do if He Declares a State of Emergency
By Elizabeth Goitein, The Atlantic
13 January 19
From seizing control of the internet to declaring martial law, President Trump
may legally do all kinds of extraordinary things.
In the weeks leading up to the 2018 midterm elections, President Donald Trump
reached deep into his arsenal to try to deliver votes to Republicans.
Most of his weapons were rhetorical, featuring a mix of lies and false
inducements—claims that every congressional Democrat had signed on to an “open
borders” bill (none had), that liberals were fomenting violent “mobs” (they
weren’t), that a 10 percent tax cut for the middle class would somehow pass
while Congress was out of session (it didn’t). But a few involved the
aggressive use—and threatened misuse—of presidential authority: He sent
thousands of active-duty soldiers to the southern border to terrorize a distant
caravan of desperate Central American migrants, announced plans to end the
constitutional guarantee of birthright citizenship by executive order, and
tweeted that law enforcement had been “strongly notified” to be on the lookout
for “ILLEGAL VOTING.”
These measures failed to carry the day, and Trump will likely conclude that
they were too timid. How much further might he go in 2020, when his own name is
on the ballot—or sooner than that, if he’s facing impeachment by a House under
Democratic control?
More is at stake here than the outcome of one or even two elections. Trump has
long signaled his disdain for the concepts of limited presidential power and
democratic rule. During his 2016 campaign, he praised murderous dictators. He
declared that his opponent, Hillary Clinton, would be in jail if he were
president, goading crowds into frenzied chants of “Lock her up.” He hinted that
he might not accept an electoral loss. As democracies around the world slide
into autocracy, and nationalism and antidemocratic sentiment are on vivid
display among segments of the American populace, Trump’s evident hostility to
key elements of liberal democracy cannot be dismissed as mere bluster.
It would be nice to think that America is protected from the worst excesses of
Trump’s impulses by its democratic laws and institutions. After all, Trump can
do only so much without bumping up against the limits set by the Constitution
and Congress and enforced by the courts. Those who see Trump as a threat to
democracy comfort themselves with the belief that these limits will hold him in
check.
But will they? Unknown to most Americans, a parallel legal regime allows the
president to sidestep many of the constraints that normally apply. The moment
the president declares a “national emergency”—a decision that is entirely
within his discretion—more than 100 special provisions become available to him.
While many of these tee up reasonable responses to genuine emergencies, some
appear dangerously suited to a leader bent on amassing or retaining power. For
instance, the president can, with the flick of his pen, activate laws allowing
him to shut down many kinds of electronic communications inside the United
States or freeze Americans’ bank accounts. Other powers are available even
without a declaration of emergency, including laws that allow the president to
deploy troops inside the country to subdue domestic unrest.
This edifice of extraordinary powers has historically rested on the assumption
that the president will act in the country’s best interest when using them.
With a handful of noteworthy exceptions, this assumption has held up. But what
if a president, backed into a corner and facing electoral defeat or
impeachment, were to declare an emergency for the sake of holding on to power?
In that scenario, our laws and institutions might not save us from a
presidential power grab. They might be what takes us down.
1. “A LOADED WEAPON”
The premise underlying emergency powers is simple: The government’s ordinary
powers might be insufficient in a crisis, and amending the law to provide
greater ones might be too slow and cumbersome. Emergency powers are meant to
give the government a temporary boost until the emergency passes or there is
time to change the law through normal legislative processes.
Unlike the modern constitutions of many other countries, which specify when and
how a state of emergency may be declared and which rights may be suspended, the
U.S. Constitution itself includes no comprehensive separate regime for
emergencies. Those few powers it does contain for dealing with certain urgent
threats, it assigns to Congress, not the president. For instance, it lets
Congress suspend the writ of habeas corpus—that is, allow government officials
to imprison people without judicial review—“when in Cases of Rebellion or
Invasion the public Safety may require it” and “provide for calling forth the
Militia to execute the Laws of the Union, suppress Insurrections and repel
Invasions.”
Nonetheless, some legal scholars believe that the Constitution gives the
president inherent emergency powers by making him commander in chief of the
armed forces, or by vesting in him a broad, undefined “executive Power.” At key
points in American history, presidents have cited inherent constitutional
powers when taking drastic actions that were not authorized—or, in some cases,
were explicitly prohibited—by Congress. Notorious examples include Franklin D.
Roosevelt’s internment of U.S. citizens and residents of Japanese descent
during World War II and George W. Bush’s programs of warrantless wiretapping
and torture after the 9/11 terrorist attacks. Abraham Lincoln conceded that his
unilateral suspension of habeas corpus during the Civil War was
constitutionally questionable, but defended it as necessary to preserve the
Union.
The Supreme Court has often upheld such actions or found ways to avoid
reviewing them, at least while the crisis was in progress. Rulings such as
Youngstown Sheet & Tube Company v. Sawyer, in which the Court invalidated
President Harry Truman’s bid to take over steel mills during the Korean War,
have been the exception. And while those exceptions have outlined important
limiting principles, the outer boundary of the president’s constitutional
authority during emergencies remains poorly defined.
Presidents can also rely on a cornucopia of powers provided by Congress, which
has historically been the principal source of emergency authority for the
executive branch. Throughout the late 18th and 19th centuries, Congress passed
laws to give the president additional leeway during military, economic, and
labor crises. A more formalized approach evolved in the early 20th century,
when Congress legislated powers that would lie dormant until the president
activated them by declaring a national emergency. These statutory authorities
began to pile up—and because presidents had little incentive to terminate
states of emergency once declared, these piled up too. By the 1970s, hundreds
of statutory emergency powers, and four clearly obsolete states of emergency,
were in effect. For instance, the national emergency that Truman declared in
1950, during the Korean War, remained in place and was being used to help
prosecute the war in Vietnam.
Aiming to rein in this proliferation, Congress passed the National Emergencies
Act in 1976. Under this law, the president still has complete discretion to
issue an emergency declaration—but he must specify in the declaration which
powers he intends to use, issue public updates if he decides to invoke
additional powers, and report to Congress on the government’s emergency-related
expenditures every six months. The state of emergency expires after a year
unless the president renews it, and the Senate and the House must meet every
six months while the emergency is in effect “to consider a vote” on termination.
By any objective measure, the law has failed. Thirty states of emergency are in
effect today—several times more than when the act was passed. Most have been
renewed for years on end. And during the 40 years the law has been in place,
Congress has not met even once, let alone every six months, to vote on whether
to end them.
As a result, the president has access to emergency powers contained in 123
statutory provisions, as recently calculated by the Brennan Center for Justice
at NYU School of Law, where I work. These laws address a broad range of
matters, from military composition to agricultural exports to public contracts.
For the most part, the president is free to use any of them; the National
Emergencies Act doesn’t require that the powers invoked relate to the nature of
the emergency. Even if the crisis at hand is, say, a nationwide crop blight,
the president may activate the law that allows the secretary of transportation
to requisition any privately owned vessel at sea. Many other laws permit the
executive branch to take extraordinary action under specified conditions, such
as war and domestic upheaval, regardless of whether a national emergency has
been declared.
This legal regime for emergencies—ambiguous constitutional limits combined with
a rich well of statutory emergency powers—would seem to provide the ingredients
for a dangerous encroachment on American civil liberties. Yet so far, even
though presidents have often advanced dubious claims of constitutional
authority, egregious abuses on the scale of the Japanese American internment or
the post-9/11 torture program have been rare, and most of the statutory powers
available during a national emergency have never been used.
But what’s to guarantee that this president, or a future one, will show the
reticence of his predecessors? To borrow from Justice Robert Jackson’s dissent
in Korematsu v. United States, the 1944 Supreme Court decision that upheld the
internment of Japanese Americans, 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.”
2. AN INTERNET KILL SWITCH?
Like all emergency powers, the laws governing the conduct of war allow the
president to engage in conduct that would be illegal during ordinary times.
This conduct includes familiar incidents of war, such as the killing or
indefinite detention of enemy soldiers. But the president can also take a host
of other actions, both abroad and inside the United States.
These laws vary dramatically in content and scope. Several of them authorize
the president to make decisions about the size and composition of the armed
forces that are usually left to Congress. Although such measures can offer
needed flexibility at crucial moments, they are subject to misuse. For
instance, George W. Bush leveraged the state of emergency after 9/11 to call
hundreds of thousands of reservists and members of the National Guard into
active duty in Iraq, for a war that had nothing to do with the 9/11 attacks.
Other powers are chilling under any circumstances: Take a moment to consider
that during a declared war or national emergency, the president can
unilaterally suspend the law that bars government testing of biological and
chemical agents on unwitting human subjects.
One power poses a singular threat to democracy in the digital era. In 1942,
Congress amended Section 706 of the Communications Act of 1934 to allow the
president to 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,” resurrecting a similar power Congress had
briefly provided Woodrow Wilson during World War I. At the time, “wire
communication” meant telephone calls or telegrams. Given the relatively modest
role that electronic communications played in most Americans’ lives, the
government’s assertion of this power during World War II (no president has used
it since) likely created inconvenience but not havoc.
We live in a different universe today. Although interpreting a 1942 law to
cover the internet might seem far-fetched, some government officials recently
endorsed this reading during debates about cybersecurity legislation. Under
this interpretation, Section 706 could effectively function as a “kill switch”
in the U.S.—one that would be available to the president the moment he
proclaimed a mere threat of war. It could also give the president power to
assume control over U.S. internet traffic.
The potential impact of such a move can hardly be overstated. In August, in an
early-morning tweet, Trump lamented that search engines were “RIGGED” to serve
up negative articles about him. Later that day the administration said it was
looking into regulating the big internet companies. “I think that Google and
Twitter and Facebook, they’re really treading on very, very troubled territory.
And they have to be careful,” Trump warned. If the government were to take
control of U.S. internet infrastructure, Trump could accomplish directly what
he threatened to do by regulation: ensure that internet searches always return
pro-Trump content as the top results. The government also would have the
ability to impede domestic access to particular websites, including
social-media platforms. It could monitor emails or prevent them from reaching
their destination. It could exert control over computer systems (such as
states’ voter databases) and physical devices (such as Amazon’s Echo speakers)
that are connected to the internet.
Video: Trump’s Emergency Powers Are “Ripe for Abuse”
To be sure, the fact that the internet in the United States is highly
decentralized—a function of a relatively open market for communications devices
and services—would offer some protection. Achieving the level of government
control over internet content that exists in places such as China, Russia, and
Iran would likely be impossible in the U.S. Moreover, if Trump were to attempt
any degree of internet takeover, an explosion of lawsuits would follow. Based
on its First Amendment rulings in recent decades, the Supreme Court seems
unlikely to permit heavy-handed government control over internet communication.
But complacency would be a mistake. Complete control of internet content would
not be necessary for Trump’s purposes; even with less comprehensive
interventions, he could do a great deal to disrupt political discourse and
hinder effective, organized political opposition. And the Supreme Court’s view
of the First Amendment is not immutable. For much of the country’s history, the
Court was willing to tolerate significant encroachments on free speech during
wartime. “The progress we have made is fragile,” Geoffrey R. Stone, a
constitutional-law scholar at the University of Chicago, has written. “It would
not take much to upset the current understanding of the First Amendment.”
Indeed, all it would take is five Supreme Court justices whose commitment to
presidential power exceeds their commitment to individual liberties.
3. SANCTIONING AMERICANS
Next to war powers, economic powers might sound benign, but they are among the
president’s most potent legal weapons. All but two of the emergency
declarations in effect today were issued under the International Emergency
Economic Powers Act, or IEEPA. Passed in 1977, the law allows the president to
declare a national emergency “to deal with any unusual and extraordinary
threat”—to national security, foreign policy, or the economy—that “has its
source in whole or substantial part outside the United States.” The president
can then order a range of economic actions to address the threat, including
freezing assets and blocking financial transactions in which any foreign nation
or foreign national has an interest.
In the late 1970s and ’80s, presidents used the law primarily to impose
sanctions against other nations, including Iran, Nicaragua, South Africa,
Libya, and Panama. Then, in 1983, when Congress failed to renew a law
authorizing the Commerce Department to control certain exports, President
Ronald Reagan declared a national emergency in order to assume that control
under IEEPA. Subsequent presidents followed his example, transferring export
control from Congress to the White House. President Bill Clinton expanded
IEEPA’s usage by targeting not just foreign governments but foreign political
parties, terrorist organizations, and suspected narcotics traffickers.
President George W. Bush took matters a giant step further after 9/11. His
Executive Order 13224 prohibited transactions not just with any suspected
foreign terrorists, but with any foreigner or any U.S. citizen suspected of
providing them with support. Once a person is “designated” under the order, 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 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.
Designations under Executive Order 13224 are opaque and extremely difficult to
challenge. The government needs only a “reasonable basis” for believing that
someone is involved with or supports terrorism in order to designate him. The
target is generally given no advance notice and no hearing. He may request
reconsideration and submit evidence on his behalf, but the government faces no
deadline to respond. Moreover, the evidence against the target is typically
classified, which means he is not allowed to see it. He can try to challenge
the action in court, but his chances of success are minimal, as most judges
defer to the government’s assessment of its own evidence.
Americans have occasionally been caught up in this Kafkaesque system. Several
Muslim charities in the U.S. were designated or investigated based on the
suspicion that their charitable contributions overseas benefited terrorists. Of
course if the government can show, through judicial proceedings that observe
due process and other constitutional rights, that an American group or person
is funding terrorist activity, it should be able to cut off those funds. But
the government shut these charities down by freezing their assets without ever
having to prove its charges in court.
In other cases, Americans were significantly harmed by designations that later
proved to be mistakes. For instance, two months after 9/11, the Treasury
Department 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.
Despite these dramatic examples, IEEPA’s limits have yet to be fully tested.
After two courts ruled that the government’s actions against American charities
were unconstitutional, Barack Obama’s administration chose not to appeal the
decisions and largely refrained from further controversial designations of
American organizations and citizens. Thus far, President Trump has followed the
same approach.
That could change. In October, in the lead-up to the midterm elections, Trump
characterized the caravan of Central American migrants headed toward the U.S.
border to seek asylum as a “National Emergency.” Although he did not issue an
emergency proclamation, he could do so under IEEPA. He could determine that any
American inside the U.S. who offers material support to the asylum seekers—or,
for that matter, to undocumented immigrants inside the United States—poses “an
unusual and extraordinary threat” to national security, and authorize the
Treasury Department to take action against them.
Such a move would carry echoes of a law passed recently in Hungary that
criminalized the provision of financial or legal services to undocumented
migrants; this has been dubbed the “Stop Soros” law, after the Hungarian
American philanthropist George Soros, who funds migrants’-rights organizations.
Although an order issued under IEEPA would not land targets in jail, it could
be implemented without legislation and without affording targets a trial. In
practice, identifying every American who has hired, housed, or provided paid
legal representation to an asylum seeker or undocumented immigrant would be
impossible—but all Trump would need to do to achieve the desired political
effect would be to make high-profile examples of a few. Individuals targeted by
the order could lose their jobs, and find their bank accounts frozen and their
health insurance canceled. The battle in the courts would then pick up exactly
where it left off during the Obama administration—but with a newly
reconstituted Supreme Court making the final call.
4. BOOTS ON MAIN STREET
The idea of tanks rolling through the streets of U.S. cities seems
fundamentally inconsistent with the country’s notions of democracy and freedom.
Americans might be surprised, therefore, to learn just how readily the
president can deploy troops inside the country.
The principle that the military should not act as a domestic police force,
known as “posse comitatus,” has deep roots in the nation’s history, and it is
often mistaken for a constitutional rule. The Constitution, however, does not
prohibit military participation in police activity. Nor does the Posse
Comitatus Act of 1878 outlaw such participation; it merely states that any
authority to use the military for law-enforcement purposes must derive from the
Constitution or from a statute.
The Insurrection Act of 1807 provides the necessary authority. As amended over
the years, it allows the president to deploy troops upon the request of a
state’s governor or legislature to help put down an insurrection within that
state. It also allows the president to deploy troops unilaterally, either
because he determines that rebellious activity 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 rights of a class of people
or “impedes the course of justice.”
Presidents have wielded the Insurrection Act under a range of circumstances.
Dwight Eisenhower used it in 1957 when he sent troops into Little Rock,
Arkansas, to enforce school desegregation. George H. W. Bush employed it in
1992 to help stop the riots that erupted in Los Angeles after the verdict in
the Rodney King case. George W. Bush considered invoking it to help restore
public order after Hurricane Katrina, but opted against it when the governor of
Louisiana resisted federal control over the state’s National Guard. While
controversy surrounded all these examples, none suggests obvious overreach.
And yet the potential misuses of the act are legion. When Chicago experienced a
spike in homicides in 2017, Trump tweeted that the city must “fix the horrible
‘carnage’ ” or he would “send in the Feds!” To carry out this threat, the
president could declare a particular street gang—say, MS‑13—to be an “unlawful
combination” and then send troops to the nation’s cities to police the streets.
He could characterize sanctuary cities—cities that refuse to provide assistance
to immigration-enforcement officials—as “conspiracies” against federal
authorities, and order the military to enforce immigration laws in those
places. Conjuring the specter of “liberal mobs,” he could send troops to
suppress alleged rioting at the fringes of anti-Trump protests.
How far could the president go in using the military within U.S. borders? The
Supreme Court has given us no clear answer to this question. Take Ex parte
Milligan, a famous ruling from 1866 invalidating the use of a military
commission to try a civilian during the Civil War. The case is widely
considered a high-water mark for judicial constraint on executive action. Yet
even as the Court held that the president could not use war or emergency as a
reason to bypass civilian courts, it noted that martial law—the displacement of
civilian authority by the military—would be appropriate in some cases. If
civilian courts were closed as a result of a foreign invasion or a civil war,
for example, martial law could exist “until the laws can have their free
course.” The message is decidedly mixed: Claims of emergency or necessity
cannot legitimize martial law … until they can.
Presented with this ambiguity, presidents have explored the outer limits of
their constitutional emergency authority in a series of directives known as
Presidential Emergency Action Documents, or PEADs. PEADs, which originated as
part of the Eisenhower administration’s plans to ensure continuity of
government in the wake of a Soviet nuclear attack, are draft executive orders,
proclamations, and messages to Congress that are prepared in advance of
anticipated emergencies. PEADs are closely guarded within the government; none
has ever been publicly released or leaked. But their contents have occasionally
been described in public sources, including FBI memorandums that were obtained
through the Freedom of Information Act as well as agency manuals and court
records. According to these sources, PEADs drafted from the 1950s through the
1970s 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.
Less is known about the contents of more recent PEADs and equivalent planning
documents. But in 1987, The Miami Herald reported that Lieutenant Colonel
Oliver North had worked with the Federal Emergency Management Agency to create
a secret contingency plan authorizing “suspension of the Constitution, turning
control of the United States over to FEMA, appointment of military commanders
to run state and local governments and declaration of martial law during a
national crisis.” A 2007 Department of Homeland Security report lists “martial
law” and “curfew declarations” as “critical tasks” that local, state, and
federal government should be able to perform in emergencies. In 2008,
government sources told a reporter for Radar magazine that a version of the
Security Index still existed under the code name Main Core, allowing for the
apprehension and detention of Americans tagged as security threats.
Since 2012, the Department of Justice has been requesting and receiving funds
from Congress to update several dozen PEADs first developed in 1989. The
funding requests contain no indication of what these PEADs encompass, or what
standards the department intends to apply in reviewing them. But whatever the
Obama administration’s intent, the review has now passed to the Trump
administration. It will fall to Jeff Sessions’s successor as attorney general
to decide whether to rein in or expand some of the more frightening features of
these PEADs. And, of course, it will be up to President Trump whether to
actually use them—something no previous president appears to have done.
5. KINDLING AN EMERGENCY
What would the Founders think of these and other emergency powers on the books
today, in the hands of a president like Donald Trump? In Youngstown, the case
in which the Supreme Court blocked President Truman’s attempt to seize the
nation’s steel mills, Justice Jackson observed that broad emergency powers were
“something the forefathers omitted” from the Constitution. “They knew what
emergencies were, knew the pressures they engender for authoritative action,
knew, too, how they afford a ready pretext for usurpation,” he wrote. “We may
also suspect that they suspected that emergency powers would tend to kindle
emergencies.”
In the past several decades, Congress has provided what the Constitution did
not: emergency powers that have the potential for creating emergencies rather
than ending them. Presidents have built on these powers with their own secret
directives. What has prevented the wholesale abuse of these authorities until
now is a baseline commitment to liberal democracy on the part of past
presidents. Under a president who doesn’t share that commitment, what might we
see?
Imagine that it’s late 2019. Trump’s approval ratings are at an all-time low. A
disgruntled former employee has leaked documents showing that the Trump
Organization was involved in illegal business dealings with Russian oligarchs.
The trade war with China and other countries has taken a significant toll on
the economy. Trump has been caught once again disclosing classified information
to Russian officials, and his international gaffes are becoming impossible for
lawmakers concerned about national security to ignore. A few of his Republican
supporters in Congress begin to distance themselves from his administration.
Support for impeachment spreads on Capitol Hill. In straw polls pitting Trump
against various potential Democratic presidential candidates, the Democrat
consistently wins.
Trump reacts. Unfazed by his own brazen hypocrisy, he tweets that Iran is
planning a cyber operation to interfere with the 2020 election. His
national-security adviser, John Bolton, claims to have seen ironclad (but
highly classified) evidence of this planned assault on U.S. democracy. Trump’s
inflammatory tweets provoke predictable saber rattling by Iranian leaders; he
responds by threatening preemptive military strikes. Some Defense Department
officials have misgivings, but others have been waiting for such an
opportunity. As Iran’s statements grow more warlike, “Iranophobia” takes hold
among the American public.
Proclaiming a threat of war, Trump invokes Section 706 of the Communications
Act to assume government control over internet traffic inside the United
States, in order to prevent the spread of Iranian disinformation and
propaganda. He also declares a national emergency under IEEPA, authorizing the
Treasury Department to freeze the assets of any person or organization
suspected of supporting Iran’s activities against the United States. Wielding
the authority conferred by these laws, the government shuts down several
left-leaning websites and domestic civil-society organizations, based on
government determinations (classified, of course) that they are subject to
Iranian influence. These include websites and organizations that are focused on
getting out the vote.
Lawsuits follow. Several judges issue orders declaring Trump’s actions
unconstitutional, but a handful of judges appointed by the president side with
the administration. On the eve of the election, the cases reach the Supreme
Court. In a 5–4 opinion written by Justice Brett Kavanaugh, the Court observes
that the president’s powers are at their zenith when he is using authority
granted by Congress to protect national security. Setting new precedent, the
Court holds that the First Amendment does not protect Iranian propaganda and
that the government needs no warrant to freeze Americans’ assets if its goal is
to mitigate a foreign threat.
Protests erupt. On Twitter, Trump calls the protesters traitors and suggests
(in capital letters) that they could use a good beating. When counterprotesters
oblige, Trump blames the original protesters for sparking the violent
confrontations and deploys the Insurrection Act to federalize the National
Guard in several states. Using the Presidential Alert system first tested in
October 2018, the president sends a text message to every American’s cellphone,
warning that there is “a risk of violence at polling stations” and that “troops
will be deployed as necessary” to keep order. Some members of opposition groups
are frightened into staying home on Election Day; other people simply can’t
find accurate information online about voting. With turnout at a historical
low, a president who was facing impeachment just months earlier handily wins
reelection—and marks his victory by renewing the state of emergency.
***
This scenario might sound extreme. But the misuse of emergency powers is a
standard gambit among leaders attempting to consolidate power. Authoritarians
Trump has openly claimed to admire—including the Philippines’ Rodrigo Duterte
and Turkey’s Recep Tayyip Erdoğan—have gone this route.
Of course, Trump might also choose to act entirely outside the law. Presidents
with a far stronger commitment to the rule of law, including Lincoln and
Roosevelt, have done exactly that, albeit in response to real emergencies. But
there is little that can be done in advance to stop this, other than attempting
deterrence through robust oversight. The remedies for such behavior can come
only after the fact, via court judgments, political blowback at the voting
booth, or impeachment.
By contrast, the dangers posed by emergency powers that are written into
statute can be mitigated through the simple expedient of changing the law.
Committees in the House could begin this process now by undertaking a thorough
review of existing emergency powers and declarations. Based on that review,
Congress could repeal the laws that are obsolete or unnecessary. It could
revise others to include stronger protections against abuse. It could issue new
criteria for emergency declarations, require a connection between the nature of
the emergency and the powers invoked, and prohibit indefinite emergencies. It
could limit the powers set forth in PEADs.
Congress, of course, will undertake none of these reforms without extraordinary
public pressure—and until now, the public has paid little heed to emergency
powers. But we are in uncharted political territory. At a time when other
democracies around the world are slipping toward authoritarianism—and when the
president seems eager for the United States to follow their example—we would be
wise to shore up the guardrails of liberal democracy. Fixing the current system
of emergency powers would be a good place to start.
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