What the President Could Do If He Declares a State of Emergency
33 replies, posted
https://www.theatlantic.com/magazine/archive/2019/01/presidential-emergency-powers/576418/
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.
1. "A Loaded Weapon"
Unlike the modern constitutions of many other countries, which specify when and how a state of emergency may be declared and which rights may be suspended, the U.S. Constitution itself includes no comprehensive separate regime for emergencies. Those few powers it does contain for dealing with certain urgent threats, it assigns to Congress, not the president. For instance, it lets Congress suspend the writ of habeas corpus—that is, allow government officials to imprison people without judicial review—“when in Cases of Rebellion or Invasion the public Safety may require it” and “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”
Congress passed the National Emergencies Act in 1976. Under this law, the president still has complete discretion to issue an emergency declaration—but he must specify in the declaration which powers he intends to use, issue public updates if he decides to invoke additional powers, and report to Congress on the government’s emergency-related expenditures every six months. 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. 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.
To borrow from Justice Robert Jackson’s dissent in Korematsu v. United States, the 1944 Supreme Court decision that upheld the internment of Japanese Americans, 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.”
2. An Internet Kill Switch?
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,” resurrecting a similar power Congress had briefly provided Woodrow Wilson during World War I. At the time, “wire communication” meant telephone calls or telegrams. Given the relatively modest role that electronic communications played in most Americans’ lives, the government’s assertion of this power during World War II (no president has used it since) likely created inconvenience but not havoc.
We live in a different universe today. Although interpreting a 1942 law to cover the internet might seem far-fetched, some government officials recently endorsed this reading during debates about cybersecurity legislation. Under this interpretation, 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.
3. Sanctioning Americans
[President George W. Bush's] 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.
IEEPA’s limits have yet to be fully tested. . . . In October, in the lead-up to the midterm elections, Trump characterized the caravan of Central American migrants headed toward the U.S. border to seek asylum as a “National Emergency.” Although he did not issue an emergency proclamation, he could do so under IEEPA. He could determine that any American inside the U.S. who offers material support to the asylum seekers—or, for that matter, to undocumented immigrants inside the United States—poses “an unusual and extraordinary threat” to national security, and authorize the Treasury Department to take action against them. . . . Although an order issued under IEEPA would not land targets in jail, it could be implemented without legislation and without affording targets a trial. In practice, identifying every American who has hired, housed, or provided paid legal representation to an asylum seeker or undocumented immigrant would be impossible—but all Trump would need to do to achieve the desired political effect would be to make high-profile examples of a few. Individuals targeted by the order could lose their jobs, and find their bank accounts frozen and their health insurance canceled. The battle in the courts would then pick up exactly where it left off during the Obama administration—but with a newly reconstituted Supreme Court making the final call.
4. Boots on Main Street
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.
The Insurrection Act of 1807 provides the necessary authority. As amended over the years, it allows the president to deploy troops upon the request of a state’s governor or legislature to help put down an insurrection within that state. It also allows the president to deploy troops unilaterally, either because he determines that rebellious activity has made it “impracticable” to enforce federal law through regular means, or because he deems it necessary to suppress “insurrection, domestic violence, unlawful combination, or conspiracy” (terms not defined in the statute) that hinders the rights of a class of people or “impedes the course of justice.”
The potential misuses of the act are legion. When Chicago experienced a spike in homicides in 2017, Trump tweeted that the city must “fix the horrible ‘carnage’ ” or he would “send in the Feds!” To carry out this threat, the president could declare a particular street gang—say, MS‑13—to be an “unlawful combination” and then send troops to the nation’s cities to police the streets. He could characterize sanctuary cities—cities that refuse to provide assistance to immigration-enforcement officials—as “conspiracies” against federal authorities, and order the military to enforce immigration laws in those places. Conjuring the specter of “liberal mobs,” he could send troops to suppress alleged rioting at the fringes of anti-Trump protests.
How far could the president go in using the military within U.S. borders? The Supreme Court has given us no clear answer to this question. Take Ex parte Milligan, a famous ruling from 1866 invalidating the use of a military commission to try a civilian during the Civil War. The case is widely considered a high-water mark for judicial constraint on executive action. Yet even as the Court held that the president could not use war or emergency as a reason to bypass civilian courts, it noted that martial law—the displacement of civilian authority by the military—would be appropriate in some cases. If civilian courts were closed as a result of a foreign invasion or a civil war, for example, martial law could exist “until the laws can have their free course.” The message is decidedly mixed: Claims of emergency or necessity cannot legitimize martial law … until they can.
5. Kindling Emergency
Imagine that it’s late 2019. Trump’s approval ratings are at an all-time low. A disgruntled former employee has leaked documents showing that the Trump Organization was involved in illegal business dealings with Russian oligarchs. The trade war with China and other countries has taken a significant toll on the economy. Trump has been caught once again disclosing classified information to Russian officials, and his international gaffes are becoming impossible for lawmakers concerned about national security to ignore. A few of his Republican supporters in Congress begin to distance themselves from his administration. Support for impeachment spreads on Capitol Hill. In straw polls pitting Trump against various potential Democratic presidential candidates, the Democrat consistently wins.
Trump reacts. Unfazed by his own brazen hypocrisy, he tweets that Iran is planning a cyber operation to interfere with the 2020 election. His national-security adviser, John Bolton, claims to have seen ironclad (but highly classified) evidence of this planned assault on U.S. democracy. Trump’s inflammatory tweets provoke predictable saber rattling by Iranian leaders; he responds by threatening preemptive military strikes. Some Defense Department officials have misgivings, but others have been waiting for such an opportunity. As Iran’s statements grow more warlike, “Iranophobia” takes hold among the American public.
Proclaiming a threat of war, Trump invokes Section 706 of the Communications Act to assume government control over internet traffic inside the United States, in order to prevent the spread of Iranian disinformation and propaganda. He also declares a national emergency under IEEPA, authorizing the Treasury Department to freeze the assets of any person or organization suspected of supporting Iran’s activities against the United States. Wielding the authority conferred by these laws, the government shuts down several left-leaning websites and domestic civil-society organizations, based on government determinations (classified, of course) that they are subject to Iranian influence. These include websites and organizations that are focused on getting out the vote.
Lawsuits follow. Several judges issue orders declaring Trump’s actions unconstitutional, but a handful of judges appointed by the president side with the administration. On the eve of the election, the cases reach the Supreme Court. In a 5–4 opinion written by Justice Brett Kavanaugh, the Court observes that the president’s powers are at their zenith when he is using authority granted by Congress to protect national security. Setting new precedent, the Court holds that the First Amendment does not protect Iranian propaganda and that the government needs no warrant to freeze Americans’ assets if its goal is to mitigate a foreign threat.
Protests erupt. On Twitter, Trump calls the protesters traitors and suggests (in capital letters) that they could use a good beating. When counterprotesters oblige, Trump blames the original protesters for sparking the violent confrontations and deploys the Insurrection Act to federalize the National Guard in several states. Using the Presidential Alert system first tested in October 2018, the president sends a text message to every American’s cellphone, warning that there is “a risk of violence at polling stations” and that “troops will be deployed as necessary” to keep order. Some members of opposition groups are frightened into staying home on Election Day; other people simply can’t find accurate information online about voting. With turnout at a historical low, a president who was facing impeachment just months earlier handily wins reelection—and marks his victory by renewing the state of emergency.
This scenario might sound extreme. But the misuse of emergency powers is a standard gambit among leaders attempting to consolidate power. Authoritarians Trump has openly claimed to admire—including the Philippines’ Rodrigo Duterte and Turkey’s Recep Tayyip Erdoğan—have gone this route.
My stance is currently that Trump being assassinated would have more negative effects than positive, but knowing this, if he declares a state of emergency that stance would change.
some of that doesn't have much basis, there are real legitimate threats like Trump starting a mass thermonuclear war in response to impeachment hearings
somehow i don't think he would do that
He strikes me as the type of manchild who would say "If I can't have the world, neither can you!"
Even a puppet SecDef would fucking refuse that order unless there was a direct threat of enemy first strike, I'm pretty sure.
Thing is I figure that, even if you've got the most loyal motherfuckers in the nuclear missile command, they're surely going to disobey an order to launch missiles if it's cos of some toupéed fucknugget having a temper tantrum about being close to being arrested. If they don't have the sense to disobey clearly insane orders, then quite frankly they deserve to burn in nuclear hellfire.
even the maniacal dictators have never launched a nuclear bomb set for a country. only empty threats
Depends on whether that puppet literally wants the world to end because that means they get to go to heaven faster.
With emergency/post 9/11 powers, Trump could indefinitely detain anyone who commits "seditious" activities with no trial.
Including literally anyone who disobeys any orders.
Yeah... I really don't think this is going to happen. I really like what the Atlantic is implying here.
All you need to know is that the government keeps a ready list of individuals deemed as a national security threat, and has the ability to arrest every last one of them within a moments notice. The US government has kept such things since the 60's with stuff like the ADEX list, and it mostly has morphed to include "Flight Risk", "Political Instigators", and "Community Leaders" individuals. You also have NSPD 51, which basically gives the US Military the ability to take over all forms of communication, infrastructure, and otherwise and use it too control the population during any event deemed to be of national .
And just to keep this shit list of, "what the governemnt can do" you also have Communication Management Units or CMUs. Basically, the government can put you inna unit where you have no outside communication, and it's basically the harshest form of solitary confinement. Oh did I forget to mention that several police forces in the past have actively held individuals in off-the-record locations, where they'd torture people for being community leaders/adversaries to th current political system? Yeah, that has been happening for a long fucking time now.
So... This stuff has been already occuring even without a national emergency, and by not means I condone it, but yeah. The National Emergency will just allow such things to be done in the open.
If he manages to detain judges and congressmen, he must face trial in the court of Smith & Wesson.
So uh. Who thought it was a good idea to let the president have dictatorship type power if they declare a state of emergency?
i'd like to think so, but this toupee satan has 40% approval rating
they won't know why they've been authorized, maybe its a retaliation strike
i'm willing to bet money they would go through with it
Star Wars got the idea from the US it seems.
Christ on a bicycle that should be extremely illegal. Are there any known countermeasures against this?
As far as I'm aware of, it's not.
Like shit this just confirms my paranoia about being politically active.
This would start a civil war
If it has to happen to preserve the United States so be it.
Every government keeps a list like this. I know for certain the UK did during the eighties and almost certainly still does.
I actually really want to make a George Bush joke but chances are it predates him by a mile.
Gerald Ford, one of the few presidents who wasn't elected to be president
who'da thunk it
The only who was never elected to any executive office.
You can bet your ass a lot of the military is going to defect in the case of Trump ordering them to bomb civilians. So i don't think this is going to happen. Nobody is dumb enough to do this other than Trump, because once the war stars, all bets are off as to who lives and who dies.
Yeah, the US Military is a volunteer professional force. Not some drafted bunch of yes men who were school teachers and construction workers just 8 weeks prior
This is one of the benefits of living in a democracy, even if it is indeed a flawed democracy. The people who form our military are not brainwashed like they are in authoritarian dictatorships, nor are they chosen based on their political ideology. We don't have to fear a military that will uniformly follow orders to slaughter us. Most of them will likely join us in rebelling against a corrupt executive branch before they would ever think of doing that.
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