Presidential Emergency Powers: Loaded Weapons Lying around

No one needs to be told that we are in a perilous time, what Dr. Richardson has characterized as a “knife edge” moment. Black Americans have been traumatized by a frenzy of police murders of young Black men and women; I read a meme headlined “Black Lives Matter” followed by “Black Trauma Matters,” and I know both are true.

Every hour we see images of protests, some of which have turned violent, and then we see militarized police, dressed in black, names and badge numbers covered, armed with clubs, pepper spray, tear gas, pistols, and shotguns. They are reinforced by the National Guard in many places, most notably Washington DC.

Late in the afternoon of June 1st, President Trump had the streets of Washington DC cleared so he could safely posture like an itinerant preacher, waving a Bible but speaking of guns and violence, in front of St. John’s Church. He’s welcome at church, of course, because all sinners are welcome, although there is the matter of a “contrite heart” that needs his attention.

That’s a matter between Mr. Trump and God, but the church itself, had it been warned in advance, surely would have declined the opportunity to serve as a backdrop to a reelection advertisement. The ministers were not provided that opportunity, and they were not pleased with Mr. Trump’s antics.

Many of us have questions about where all of this is headed: the protests, the violent White infiltrators, the marching police and National Guard, and, most of all, the posturing Mr. Trump, who uncannily channels Benito Mussolini in his heyday. What is Mr. Trump going to do? More to the point, what can he do? How great is the danger to our democracy?

The Executive Summary version: Mr. Trump can do far more than we ever imagined, and our democracy is in grave danger.

Before enumerating the list of laws and other devices at Mr. Trump’s disposal, I want to point out a few important institutional arrangements that may, or may not, thwart Mr. Trump should he become overly ambitious in his claims to power. It’s also useful to note that some of Trump’s posturing is just that: he’s playing to his base for reelection purposes, not necessarily because he intends to seize power over the weekend. But there are many weekends before the next election, so he has the luxury of selecting a time to act, if he intends to act.

Remember, first, that Mr. Trump does not accept limits on his power; he believes the Constitution gives him the “right to do whatever I want.” [1] His Attorney General, William Barr, subscribes to the notion of a “unitary executive,” which indeed gives the president virtually unlimited power. [2] Both Mr. Trump’s declaration and his attorney general’s belief are extra-constitutional and profoundly undemocratic. Even with a system of rigorous laws and functioning institutions, they would be dangerous ideas. We do not have either.

Institutionally, we do have safeguards that protect our democracy. We have, for example, established norms of acceptable behavior — the idea that some things are just not done — that have functioned in the past to self-limit presidential behavior.

Mr. Trump, however, does not abide by democratic norms or traditions. The array of emergency powers that await Mr. Trump’s whim for activation have been available to other presidents, but previous presidents had a commitment to democracy and the rule of law, so emergency powers were not abused (usually — there are exceptions). Mr. Trump has not provided evidence that he believes in democracy or the rule of law.

A second institutional line of defense is Congress. In the past, members of the president’s party cautioned presidents when they ignored norms or threatened the party’s reelection prospects. Republicans are unwilling to perform this function with Mr. Trump, partly because many Republicans agree with Mr. Trump’s rhetoric, taking political guidance from his daily tweets, and partly because Republicans are afraid of Mr. Trump’s supporters.

Even prior to the Republicans capturing the Senate, however, Congress had a poor record of acting as a brake on presidential emergency powers. The National Emergencies Act of 1976 requires Congress to meet every six months to review and vote on continuing emergency declarations, but dozens of declarations have been active for decades, and Congress has not met even once to vote on their continuance. [3]

Congress can exert pressure on presidents in other ways, by refusing to approve appropriations bills or by threatening impeachment. Republicans and Democrats, however, have routinely approved Mr. Trump’s budget requests, especially defense appropriations, because failing to do so negatively impacts the reelection prospects of members of Congress. And with the Republican majority in the Senate, impeachment is not a serious threat to Mr. Trump.

The question we need to answer is this: If Mr. Trump allows his authoritarian impulses free rein, will Republican Senators remember their oath to the Constitution? Or will they protect themselves electorally by protecting the president? In the very near future, a handful of Republican Senators may determine whether we remain a democratic republic.

A third institutional barrier to authoritarianism is the legal system and the Supreme Court. For a number of reasons, they don’t provide as much protection as one might hope.

First, judges are loathe to intervene in national security matters, including a president’s acts as Commander-in-Chief. The Supreme Court itself has a mixed record on presidential lawbreaking. It approved FDR’s internment of Japanese Americans during WWII, [4] but rebuffed President Truman’s attempt to nationalize the steel industry (because of a strike) during the Korean War. [5] (Mr. Truman may have been a victim of bad timing: the U.S. was in the early stages of another Red Scare, and nationalization may have smacked too much of “communism.”)

Second, the courts act only “after the fact”: The president must first act, then someone (or, more likely, an organization like the ACLU) must seek an emergency injunction and/or file a lawsuit. A final resolution requires months, if not years.

Third, the current court bench, thanks to Senator McConnell, is full of Mr. Trump’s appointees [6]; the same is true of the Supreme Court, some of whose members may be as sympathetic to the idea of a unitary executive as Mr. Barr. [7]

A fourth institutional impediment is one we’re usually reluctant to entertain: the military. Mr. Trump, as President, is also the Commander-in-Chief, and his orders are meant to be obeyed.*

Officers and enlisted personnel can — must — refuse to obey unlawful orders, but as incidents like the My Lai Massacre illustrate, they do not always do so. [8] And who’s to say when Mr. Trump crosses a line? Let’s hope the Joint Chiefs of Staff have already had this discussion, because we may need to rely on the professionalism and loyalty of the military to the Constitution — and particularly that of the officer corps — if Mr. Trump attempts to seize power. [9]

Those are some of the obvious institutional barriers to authoritarian rule. To be honest, they fill me with unease, because they rely on virtuous men and women, which seem to be in short supply. What laws exist that might prevent — or allow — Mr. Trump to seize power?

They are legion.

Whenever a president declares a national emergency — which he can do unilaterally, for any reason — he is able to set aside many legal limits on his authority; at least 100 “special provisions” become available. For example, the president can shut down electronic communications and freeze an American citizen’s bank account. [10]

The Constitution does not provide for a comprehensive set of emergency actions, and the few emergencies it does mention assume Congress, not the president, will act. Congress can, for example, suspend habeas corpus. [11] Habeas corpus, if you remember, protects us against illegal imprisonment. [12]

The rationale for laws providing expanded presidential powers is that in times of crisis the president may need to act before laws can be changed or budgets allocated. Consequently, emergency declarations were meant to be temporary, until Congress could meet and act, but in practice most decrees live on, apparently forever. [13]

The general governing law for national emergencies is 50 USC Ch. 34: National Emergencies. It broadly defines what a president can or cannot do (at least, not without Congressional authority), how an emergency is declared, and how it can be terminated. [14] It’s well worth your time to become familiar with it.

The law that is most frequently discussed as a safeguard is the Posse Comitatus Act of 1878. It’s a federal law designed to limit the powers of the federal government to use military personnel to enforce domestic policies in the U.S. [9] But there are ways around this limitation. [15]

The Insurrection Act of 1871 governs the “ability of the president of the United States to deploy military troops within the U.S. to suppress civil disorder, insurrection, and rebellion.” Again, it was designed to limit the president’s ability to deploy troops in the U.S. [16], but the limitation is weak.

The Insurrection Act authorizes the president to federalize the National Guard if federalization is requested by a state’s governor. It also allows the president to use regular Active Duty forces within the U.S. to suppress an insurrection. Most significantly, the president can bypass state governors “if it becomes impracticable to enforce federal laws through ordinary proceedings or if states are unable to safeguard its inhabitants’ civil rights.” In simple terms, the Insurrection Act is a way of evading Posse Comitatus Act restrictions. [17]

President Eisenhower invoked the Act in 1957, when he sent federal troops to Little Rock, Arkansas to enforce school desegregation. More ominously for us, the first President Bush cited the Insurrection Act when he quelled rioters in Los Angeles after the 1992 Rodney King verdict led to an explosion of Black anger in the city. The second President Bush considered using the Act to control the Black population of New Orleans after Hurricane Katrina, but he deferred to opposition by the governor of Louisiana. President Bush could have ignored the wishes of the governor and federalized the Louisiana National Guard, but the president chose not to. [18] I have less confidence that Mr. Trump will be as judicious.

Another major concern is martial law, which is “the imposition of curfews, the suspension of civil law, civil rights, and habeas corpus.” [19] It may also include the extension of military justice to civilians. [20] Once a president declares an emergency, he or she can declare martial law. We rely on their discretion, commitment to democracy, and good judgment.

A little-known law that enhances a president’s power is the International Emergency Economic Powers Act (IEEPA) of 1977. Despite its “international” title, when combined with the post-9/11 Patriot Act, the IEEPA allows the president to impose economic sanctions on American citizens.

The president, using the Patriot Act and subsequent Executive Orders, merely designates a citizen as a supporter of terrorism before imposing economic sanctions. There is little or no effective appeal, since the designation is classified, and the justification is not released to the affected party. It has already destroyed lives. [21]

The final set of “rules” which govern presidential behavior are the most dangerous of all. Presidential Emergency Action Directives (PEADs) are known only to the Executive Branch: No one else, not even Congress, knows what are contained in PEADs. Congress knows they exist, because it periodically authorizes funds for the development of new PEADs, or for the revision of existing directives, but no Congressional committee has ever asked to be briefed on their contents. [22] This is a significant and dangerous failure.

PEADs were originally meant to provide emergency authority in the aftermath of a nuclear war but, again, they only require the president to declare an emergency before they can be invoked.

Rumors about the unsavory contents of PEADs do exist. In the 1980s, President Reagan (specifically, Lt. Col. Oliver North, who worked in Mr. Reagan’s National Security Council) developed plans to suspend the Constitution, allow the Executive Branch to suspend habeas corpus (only the Congress has the Constitutional authority to suspend), impose military governors on the states, and round up 10,000 people who were, or are, on a list of subversives maintained by the FBI. [23] No one knows if such plans still exist. Most likely, they do.

Finally, on occasion presidents simply ignore the Constitution. Abraham Lincoln did when he suspended habeas corpus during the Civil War, FDR did when he opened Japanese internment camps during WWII, and George Bush did when he implemented wireless wiretapping and authorized torture after 9/11. [24] A compliant Congress and Supreme Court are all that’s required for a president to end democracy.

Justice Robert Jackson, in his dissent from the Supreme Court’s majority ruling in Korematsu versus the United States (the Japanese internment camp ruling), wrote 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.” [25] The bar for a “plausible claim,” it seems to me, is both low and arbitrary, and there are far too many loaded weapons lying around.

*In the article, I write of our dependence on the professionalism of the officer class, along with their loyalty to the Constitution, as fail safes against Mr. Trump seizing power. I must now add a frightening addendum: Military professionalism has been discarded, and loyalty has been transferred to Mr. Trump. On a conference call hosted by Mr. Trump, with the Chairman of the Joint Chiefs of Staff, General Mark A. Milley in attendance, Secretary of Defense Mark Esper urged governors to “dominate the battle space” in their cities. The general later walked the streets with the federalized National Guard, taking time to speak with reporters. National security specialist Tom Nichols noted: “There is absolutely no reason for the Chairman to be walking the streets right now. This is not even remotely in the tradition of U.S. civil-military relations.”

Notes

1. Brice-Saddler. 2019. “While bemoaning Mueller probe, Trump falsely says the Constitution gives him the ‘right to do whatever I want.’’ Washington Post, July 23. https://www.washingtonpost.com/politics/2019/07/23/trump-falsely-tells-auditorium-full-teens-constitution-gives-him-right-do-whatever-i-want/

2. Johnson, Eliana. 2019. “The real reason Bill Barr is defending Trump.” Politico, May 1. https://www.politico.com/story/2019/05/01/william-barr-donald-trump-mueller-report-1295273

3. Goitein, Elizabeth. 2019. “The Alarming Scope of the President’s Emergency Powers.” Atlantic,January/February. https://www.theatlantic.com/magazine/archive/2019/01/presidential-emergency-powers/576418/

4. Korematsu v. United States, https://www.oyez.org/cases/1940-1955/323us214

5. Youngstown Sheet & Tube Company v. Sawyer, https://www.oyez.org/cases/1940-1955/343us579

6. Zhou, Li. 2020. “’Leave no vacancy behind’: McConnell remains laser-focused on judges amid coronavirus.” Vox, May 4. https://www.vox.com/2020/5/4/21246313/federal-judges-mitch-mcconnell-senate-coronavirus-pandemic

7. Gass, Henry. 2018. “At Kavanaugh hearings, questions of how much power a president should hold.” The Christian Science Monitor, September 4. https://www.csmonitor.com/USA/Justice/2018/0904/At-Kavanaugh-hearings-questions-of-how-much-power-a-president-should-hold

8. PBS. “The My Lai Massacre.” The American Experience. Undated. https://www.pbs.org/wgbh/americanexperience/features/vietnam-my-lai-massacre/

9. The Conversation. 2017. “Thinking the unthinkable: could there be a military coup in the US?” September 7. https://theconversation.com/thinking-the-unthinkable-could-there-be-a-military-coup-in-the-us-82403

10. Goitein, Elizabeth. 2019. “The Alarming Scope of the President’s Emergency Powers.” Atlantic,January/February. https://www.theatlantic.com/magazine/archive/2019/01/presidential-emergency-powers/576418/

11. Ibid.

12. Cornell Law School. 2017. “Habeas Corpus.” Legal Information Institute. https://www.law.cornell.edu/wex/habeas_corpus

13. Goitein, Elizabeth. 2019. “The Alarming Scope of the President’s Emergency Powers.” Atlantic, January/February. https://www.theatlantic.com/magazine/archive/2019/01/presidential-emergency-powers/576418/

14. House of Representatives. Undated. “50 USC Ch. 34: National Emergencies.” https://uscode.house.gov/view.xhtml?path=/prelim@title50/chapter34&edition=prelim

15. Rand. Undated. “Overview of the Posse Comitatus Act.” https://www.rand.org/content/dam/rand/pubs/monograph_reports/MR1251/MR1251.AppD.pdf

16. Ibid.

17. Goitein, Elizabeth. 2019. “The Alarming Scope of the President’s Emergency Powers.” Atlantic,January/February. https://www.theatlantic.com/magazine/archive/2019/01/presidential-emergency-powers/576418/

18. Ibid.

19. Ibid.

20. Ibid.

21. Ibid.

22. Ibid.

23. Ibid.

24. Ibid.

25. Ibid.