Declaring an Emergency Gives the President Unchecked Power

perhaps finds himself demeaned alongside those who have greater power than he — Russia's Putin, China's Xi, Egypt's Sisi, Saudi Arabia's Salman, even the Philippines' Duterte, whom he congratulated for doing an “unbelievable job on the drug problem” which has led to the extrajudicial killings of an estimated 12,000 to date.

Even if not over the wall, Trump's yearning for this sort of power should make us expect that he will find some reason to declare a national emergency at some point, and then find reasons not to end it.

The Constitution makes no provision for giving the president special powers. That lies with Congress which can suspend habeas corpus "when in Cases of Rebellion or Invasion the public Safety may require it”. President Lincoln relied on that clause in 1861, but without obtaining Congressional approval. Because reliance on the slow-moving Congress was thought inadequate to meet a crisis, Congress itself early in the last century legislated various statutes expressly meant to stay dormant and awakened only when a president decided there was a national emergency to deal with.

Once activated, they have stayed active, passed from one president to the next. Several hundred were on the books when Congress sought to rein in the process with the National Emergencies Act in 1976. It required that a president announce to Congress which powers he intended to use. The statute calls for the state of emergency to expire after a year unless renewed by the president and every six months Congress is to consider its termination. In fact, none of this happens. Elizabeth Goitein of the Brennan Center for Justice reports that emergency declarations have piled up as in the past such that there are 30 states of emergency still alive, "renewed for years on end", that none of us are aware of. And in the 40 years since the law was passed "Congress has not met even once, let alone every six months, to vote on whether to end them".

If President Trump were to declare an emergency, those still active emergencies provide him with an accumulation of 123 statutes to choose from, per the Center. He is even free to employ any of them irrespective of whether they pertain to the emergency he has declared. They span every facet of government, from agriculture to exports to the economy to civil liberties, such as when George W. Bush made it a crime by executive order after 9/11 for U.S. citizens to support suspected foreign terrorist organizations. This was more formerly enshrined in the Patriot Act which allowed federal agents to secretly search a residence under an "administrative subpoena" written by the FBI on its own, and exercised without the suspect’s knowing of the search, unless made aware by missing personal papers, tax records, bank statements, and one's hard drive. Under the act, renewed ever since, it is illegal to disclose to anyone else that this has happened. As written, the law precludes even informing a lawyer in order to contest the subpoena.

Of particular concern with this president, given his campaign against the media as "the enemy of the people", is his disregard of the First Amendment's guarantee of press freedom. He has so far held off, and indeed it was Barack Obama who showed a willingness to prosecute reporters and those who leaked to the press, even a hero who had earlier risked his life taking down a much sought after terrorist in a Pakistan firefight. But now we are hearing Trump's nominee for attorney general, William Barr, in answer to Sen. Amy Klobuchar's question of whether he would jail journalists, say after a long pause:

I can conceive of situations where, you know, as a last resort and where a news organization has run through a red flag or something like that, knows that they’re putting out stuff that will hurt the country — there could be a situation where someone could be held in contempt."

"As a last resort" is not particularly reassuring, considering he will be working under a president who has never spoken out against regimes around the world, ruled by despots such as Erdogan in Turkey, that have thrown hundreds of journalists in prison, and who would not renounce Saudi Arabia or its Crown Prince Salman for the killing of Washington Post columnist Jamal Khashoggi. And we have a Supreme Court that has been steadfast in support of the First Amendment but now has five justices tilted well to the right who might favor presidential power over press freedom.

In this century the press is greatly expanded by the Internet and social media. A 1942 amendment to the Communications Act of 1934 allows the president to shut down or take control of “any facility or station for wire communication” if he concludes “that there exists a state or threat of war involving the United States”. At the time "wire" referred to telephone and telegraph, but the Court might rule — considering the president has declared an emergency — that the law should be broadly treated to sweep in all forms of communication, that presumably being the law's original intent. Thus could a president decree — this president should North Korea's Kim Jong-Un again threaten the U.S. with an "unimaginable strike at an unimaginable time" — that certain subjects such as anti-war posts or policy critiques (or of Donald Trump), be banned from social media and the Internet as being unpatriotic and seditious, and with the sort of Patriot Act civil liberties penalties thrown in.

A second major concern is military, that Trump might call an emergency and order troops into the street. The Insurrection Act of 1807 provides for sending troops into a state at the request of its governor or into a rebellious state at the president's discretion to put down “insurrection, domestic violence, unlawful combination, or conspiracy”. Such was the case in 1957 when Arkansas' governor Orvil Faubus refused to comply with the Supreme Court's outlawing school segregation in Brown v. Board of Education. President Eisenhower sent in troops to accompany students to school. In 1878 Congress passed the Posse Comitatus Act (Latin for "power of the county") which restricts the use of federal troops in domestic law enforcement. This principle — that using the military against Americans is undesirable — dates as far back as Ninth Century England, but it is not in our Constitution, and the law has exceptions, e.g., neither state national guards nor the Coast Guard is restricted from deployment into the streets.

It's reasonable to think that President Trump had never heard of posse comitatus nor the principle of not using the military against its own citizens. He once threatened he would “send in the Feds!” to end the "carnage" of Chicago's gang wars and subsequently showed no reluctance to ordering some 6,000 troops to the Mexican border just before the midterm elections when a caravan of migrants from the Central American triangle was on its way to the U.S. to seek asylum. Trump spoke of this as an "invasion" and a “national emergency” without formerly declaring one, an emergency that evaporated immediately after the elections. The troops were not used for law enforcement, but neither was there much public objection to Trump's deploying the U.S. military within the country, especially for doing so when there was no emergency. That was a weakening of the legal safeguards long in place, and it told the president that he could deploy troops in country with impunity.

Those who reach the highest levels of our government then learn of a practice entirely unknown to the public, as do we from Ms. Goitein's article: Presidential Emergency Action Documents. First devised at the outset of the Cold War as powers for the president to invoke should a nuclear exchange cripple government, these are draft executive orders, proclamations, and messages to Congress that lie dormant and are secret to the extent that none of them have ever even been leaked to the public. All that is known is from references to them that have emerged between the cracks, as in Freedom of Information requests of FBI memorandums. But gleanings from such sources reveal that PEADs call for disturbing measures to be taken on a proclamation of emergency. Those peeks have shown mention of suspension of the Constitution, martial law, curfews, suspension of habeas corpus, voiding of Americans’ passports, and an FBI “Security Index” of more than 10,000 persons considered to be subversive and subject therefore to detention. The security index dates from the 1950s to 1970s, but as recently as 2008 came a report that it is still maintained. From midway through the Obama years, the Justice Department has been given funds to update PEADs with no knowledge of which are thought to need revision or have this priority.

From the Insurrection and Posse Comitatus acts, the 30 emergency declarations still alive with their 123 statutes conferring special powers on the president, and the untold number of unrevealed Presidential Emergency Action Documents comes the alarming realization that there exists below the surface a parallel government, an authoritarian regime that could burst into being, dispensing with democracy and its laws, all ready to take over if a president proclaims an emergency to a pliant Congress. One could say that there is indeed a "deep state", and it belongs to Donald Trump.