National Emergency and the Threat of Absolute Power

Trump’s recent declaration that he has “absolute” authority to reopen the states from their various stay-at-home orders has people from various political persuasions (not to mention agendas) howling about Constitutional separations of power, federalism, checks and balances, etc. Be all that as it may (and I share bigly in that uneasiness), the truth is that any president’s powers under emergency declarations can be far greater than most people realize. Shockingly greater.

All we need is a national emergency to trigger them. And we don’t actually have one. No. We have about 30 of them on the books right now. COVID-19 is only a very public one.

That’s right, there are currently about 30 national emergencies in effect, and many have been in effect for decades. These trigger hundreds of statutes and virtually unlimited powers on the part of the president in office, as we’ll read in a minute.

I have elsewhere addressed the question of the President’s powers in regard to military actions without a declaration of war. Yes, to our surprise (and perhaps protest), the Constitution allows it. This is not to say it is right or godly (whether always, sometimes, or not at all), but about what the Constitution allows. I have addressed executive power more generally in Restoring America. The case of emergency powers has become part of his broader power. It generalizes the type of power we would expect in a time of war, but for virtually anything that could be construed as an “emergency.” Think of presidential power under emergency rules as an extension of martial law.

Note: you do not need M16 wielding soldiers trolling the streets in order for there to be martial law. Granted, full martial law and only martial may mean a more direct and visible role of the military chain of command. But remember, the military chain of command begins with the President. If he can sneak even partial direct executive rule into the civilian world, the actual body of the military need not be directly involved.

I would make the case that, in this way, we regularly live with martial law every day in many ways. The mere fact that we have a standing army is one of them. The fact that the president is the commander in chief of that force should mean something. (You will see below that the separation of military and “civilian” police is not as robust as you think.) But every state and local police force is virtually the same thing, under their respective heads. They are state and local standing armies empowered to enforce statutes with immunity. Police often speak of themselves as men at war, and this ethos has grown over time.

Likewise, all administrative law courts are mixtures of executive and judicial law. To the extent they are executive, they are proxies of the president or governor, and they are to that extent martial law, just without the actual armies actively involved (though, they could be very easily and lawfully). More needs to be said about this to clarify, I admit, but I’ll leave it here for now.

An excellent article on the topic appears from the Brennan Center’s Elizabeth Goitein. Below are some very relevant excerpts. Note that while we could easily assign a partisan stance to some of what she says, she is quite open about the bi-partisan nature of the historic and contemporary uses and abuses of the emergency powers. Enjoy:

***

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. . . .

By the 1970s, hundreds of statutory emergency powers, and four clearly obsolete states of emergency, were in effect.

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. . . . 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. . . .

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. . . .

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.

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. . . .

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 might be surprised to learn just how readily the president can deploy troops inside the United States. . . .

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. . . .

[I]n 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. . . .

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.” . . .

[My emphases. Catch the whole article here.]

***

These barely scratch the surface of what the president can do. Scroll that Brennan Center list and read the powers available under those 123 or more statutes. Consider that several of these are not merely individual powers, but the total lifting of restraint on whole areas of life, the economy, infrastructure, private property, health records, confidentiality, licensing, conscriptions, and much, much more.

In light of this, arguing about what the Constitution says among ourselves is almost moot. That argument, over the past couple of centuries, has still resulted in nothing but a behemoth. A president, on any given day, under national emergency, of which there are already plenty, can leverage an enormous amount of power to accomplish his will. The only real thing stopping him is the fear of political fallout. Using raw power is not the best idea in most cases. But we know that whether it’s Bush or Obama or Trump, they always push it as far as they can. It is only political resistance that stops them: the question of how much people will tolerate.

We need to maintain a critical mass of people who simply will not tolerate abuses of these powers; better yet, we need to build a critical mass who will constructively dismantle much of the power structure. This is the work of lifetimes apart from some special move of God. The first step we can take is actually to be honest and acknowledge the scope of the problem—i.e., the scope of the power. Unless we know its real extents, we cannot formulate accurate plans for solving it.