The moment the president of the US declares a national emergency, powers obscured to the public become available to them – a series of far-reaching authoritarian measures that legal analysts fear could justify mass arrests and federal troops patrolling American streets.
If invoked, so-called “secret powers” could supersede constitutional protections and set an authoritative precedent that legal scholars and analysts fear would effectively erase American democracy.
Adding the caveat that it’s unlikely or uncertain that a sitting president could wage such drastic threats against civil protections without protracted political battles, legal and constitutional scholars have issued worst-case scenario outlooks ahead of crucial 2020 elections, as Donald Trump and his allies lay the groundwork to undermine voting confidence and amplify misinformation targeting other Americans.
On 12 March, amid speculation that the president would invoke the Stafford Act to direct an emergency response to the coronavirus pandemic, Mr Trump told reporters: ”I have the right to do a lot of things that people don’t even know about.”
He’s right – the Brennan Centre for Justice at the New York University School of Law has sought to uncover an obscured series of “presidential emergency action documents” that remain largely out of the public eye.
Those authorities are intended “to implement extraordinary presidential authority in response to extraordinary situations.”
While those measures themselves remain secret, unclassified documents reveal that as many as 60 of them had been drafted, the Brennan Centre found.
“When somebody is the president of the United States, the authority is total, and that’s the way it’s got to be,” the president said on 14 April. “It’s total … The authority of the president of the United States, having to do with the subject we’re talking about, is total.”
On 23 June 2019, the president declared that the Constitution gives him “the right to do whatever I want as president.”
Legal analysts have feared that those documents could authorise censorship at news outlets, the detention of “alien enemies” within the US, the activation of martial law, warrantless searches, and the suspension of habeas corpus, among other measures.
One FBI memo from 1967, discussing the suspension of habeas corpus under those documents, called them a “drastic program set up under the assumption that drastic steps will be necessary to protect the national security of this country so that efforts can be made to remove from circulation individuals determined to be potentially dangerous to the national defense and public safety of the United States by engaging in espionage, sabotage and/or subversion in the event an attack is launched against this country.”
Elizabeth Goitein, who codirects the Brennan Centre’s Liberty and National Security program, wrote in The New York Times that, under the current president, “it is not far-fetched to think that we might see the deployment of these documents for the first time and that they will assert presidential powers beyond those granted by Congress or recognized by the courts as flowing from the Constitution.”
Gary Hart, a former Democratic presidential candidate and Colorado senator, described those executive powers as “virtually dictatorial powers without congressional or judicial checks and balances.”
“No matter who occupies the office, the American people have a right to know what extraordinary powers presidents believe they have,” Mr Hart wrote in a July op-ed in The New York Times. “It is time for a new select committee to study these powers and their potential for abuse, and advise Congress on the ways in which it might, at a minimum, establish stringent oversight.”
Advocacy groups, including Mr Hart’s Keep Our Republic, and several lawmakers have sought congressional oversight to make those powers public.
“It is time to rethink whether our current legal framework for national emergencies is the right one, or whether changes are needed to preserve the balance of powers the Founders intended,” Ms Goitein wrote.
The Brennan Centre has also identified 136 authorities encompassing “the military, land use, public health, trade, federal pay schedules, agriculture, transportation, communications, and criminal law” that are available to the executive branch under emergency declarations.
Emergency declaration laws include the Stafford Act, National Emergencies Act and Public Health Service Act, recently invoked in 2017 to combat the opioid crisis and H1N1 outbreak in 2009.
Dozens of statutory provisions are then available to the president upon declaration of an emergency. Of those, 96 merely require the president’s signature. Only 13 require congressional intervention.
Under an emergency declaration, the president could suspend provisions that prohibit testing chemical and biological weapons on humans, or shut down radio stations, as part of Communications Act. The International Emergency Economic Powers Act allows the government to freeze or block assets involving a foreign national, even if that asset belongs to or is only between Americans.
Ms Goitein described emergency powers in The Atlantic as “a parallel legal regime” giving the president wide latitude to sidestep constraints outlined by the Constitution and the courts.
Most have never been touched, and several have been rendered obsolete but remain on the books, like exempting World War II veterans from a military draft.
But several statutes have been used frequently; six have been used more than 10 times.
The International Emergency Economic Powers Act has been used nearly every year since its passage in 1977 under the National Emergencies Act.
An emergency declaration blocking Iranian government property was issued in 1979 amid the hostage crisis. It remains ongoing.
“This level of reliance on an emergency power raises a different concern: that the actions being taken are not emergency actions at all, but the implementation of standard policy that should be bound by non-emergency law,” the Brennan Centre said.
Ostensibly engineered for short-term use, half of the 62 states of emergency declared since the creation of the National Emergencies Act have lasted far beyond a temporary measure.
The average duration of declared emergencies is nearly 10 years, the Brennan Centre found, while 25 emergencies have been open for 10 years or more – 13 of them were declared between 2001 and 2008.
The president has spent months undermining the legitimacy of vote-by-mail efforts and threatening to use federal troops against Americans protesting police brutality without having to invoke any “emergency” powers – all in the weeks leading up to what analysts believe will be a contested election, as his allies encourage the president to use autocratic powers to ensure he stays in office.
“Even though, for example, under the Insurrection Act, the president issues a proclamation that doesn’t even necessarily use the word emergency, it’s still very much a form of emergency power,” Ms Goetein told The Independent.
Under that measure, active-duty troops could be deployed to enforce state or federal laws – it was famously used to enforce school desegregation efforts in Arkansas in 1957 and in Alabama in 1962 and 1963.
While there are no statutory emergency powers that allow the president to directly interfere with an election, the president’s unfounded claims of widespread voter fraud could be used as a “pretext” to deploy federal troops to enforce voting laws, Ms Goetein said.
“At the federal level, my main concern with emergency powers would be the powers relating to military deployment, as we’ve seen with protests,” Ms Goitein told The Independent. “These aren’t technically emergency powers – the president doesn’t have to declare an emergency to use them, but they are clearly what I think of as ‘quasi’ emergency powers, because they contemplate really extraordinary action by the president in response to extraordinary circumstances.”