What the President Could Do If He Declares a State of Emergency, Brennan Ctr for Justice (12/18)
What the President Could Do If He Declares a State of Emergency. A vast array of obscure presidential powers spans everything from the military to criminal law, and some are ripe for abuse. They need to be reexamined. Elizabeth (Liza) Goitein, Brennan Center for Justice, *Dec. 12, 2018. Cross-posted from The Atlantic. - EXCERPTS:
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..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?
..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.. 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..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...
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..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,” ...
Read More, https://www.brennancenter.org/blog/what-president-could-do-if-he-declares-state-emergency
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