3 Ways Presidential Power Can Be Abused
All three government branches are privy to partisanship. Our checks and balances may not necessarily work as intended. But most alarmingly, American presidential power might be far less defined than most people realized.
Historically, dictatorial regimes have utilized "national emergencies" as excuses to consolidate and reinforce power. We've seen this playbook employed by Erdogan in Turkey and by Duterte in the Philippines. But could this happen in America? The answer is murky. In fact, national emergencies are murky territory in general, the main problem being that most of the terminology involved is broad and ill-defined.
In a video posted by The Atlantic, Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, explains, "There's no legal definition of emergency, no requirement that congress ratify the decision, and no judicial review." In other words, the decision to declare a national emergency are almost entirely up to a president's personal discretion. Normally, we assume that our elected officials have the best interest of the people in mind, and would not declare a national emergency for personal or partisan political gain. But considering Donald Trump's noted praise of dictators like Erdogan, coupled with his extreme penchant for partisanship, we can no longer simply rely on the president's best judgment.
The question then becomes, "If the president declares a national emergency now, what powers can he abuse?"
1. The Power to Take Over Wire Communication
During a national emergency, the president has the power to shut down or take over radio stations. Assuming there's a threat of war (which, again, can be determined at the president's own discretion), that power expands to any and all wire communications. This executive power was last used during WWII, before most people utilized daily wire communication in any meaningful way beyond the occasional phone call.
Today, given the vagueness and broad applications of "wire communications," declaring a national emergency could allow the president to control Internet traffic in the US. This could include shutting down websites he didn't like, blocking emails to and from dissidents, and altering search results to only display pre-approved propaganda. Doing so would be akin to removing free speech from the Internet, and during a national emergency that would be completely within the president's power.
2. Sanctioning American Citizens
Imagine going to work, only to discover you've been fired because you can no longer legally be employed. You go back to your apartment and find out you're being evicted. So you go to the bank to take out cash for a hotel, but your funds are frozen. Turns out you're on a list of US citizens suspected of providing support to foreign threats. That's the potential reality of the International Emergency Economic Powers Act (IEEPA).
This act allows the president to declare a national emergency to "deal with any unusual extraordinary threat" that "has its source in whole or substantial part outside the United States." It gives the president the power to freeze assets and block transactions where a foreign nation or foreign national might have a vested interest. George W. Bush used this after 9/11 to sanction those being investigated (sometimes wrongly) of helping terrorists. Were a president to declare "illegal immigrants" a national emergency, the implications could be disastrous.
3. Deploying the Military Within the US
The idea of armed soldiers marching down your city street to hunt down civilians might sound like something out of a dystopian novel. But during a national emergency, it could be an American reality. The Insurrection Act states that during a national emergency, the president can deploy military troops inside the US to suppress any "unlawful combinations" or "conspiracies" that "obstructs or hinders the execution of the law." The problem, again, is that the terms are so vaguely defined.
President Eisenhower once used this law to enforce desegregation in schools. But a president with different sentiments could just as easily use it against protestors or undocumented migrants. For instance, if Trump were to decide Black Lives Matter constituted an "unlawful combination" during a state of emergency, sending the army to suppress them would be fully within his power. Alternatively, a sanctuary city harboring illegal immigrants might be interpreted as a "conspiracy" and therefore subject to military rule.
In many ways, the limits of an American president's power during a national emergency have not been tested. On one hand, theoretical checks and balances do exist which could allow Congress to end a national emergency that was being abused. On the other hand, this would require a majority that a largely partisan Senate would likely not have. There also might be opportunities for the courts to block various moves made during a national emergency but, again, the legality here is largely untested.
Ultimately, as citizens, we must keep a watchful eye on our president's actions should he declare a national emergency. And if things go south, we must keep this in mind the next time we vote. After all, when one person who is supposed to represent all of us holds so much power, we must make sure it is a person of strong enough character and mental capability to understand the repercussions of his or her actions.
What Happens When the President Declares a State of Emergency?
After the National Emergencies Act of 1976 (NEA), presidents must identify which specific powers they're asking to activate in order to address the designated emergency–which means selecting a few out of approximately 130 laws that grant special authorities to the President. Barack Obama invoked those powers 13 times over his eight years in the White House; similarly, George W. Bush did so 12 times over his two terms. One major dilemma with the NEA, however, is that it does not create a time limit within which a state of emergency must be resolved, allowing for various national emergencies to remain ongoing simultaneously (in 2017, there were 28 concurrent active emergencies). This, of course, allows the sitting President to hold "extraordinary authorities" for an indeterminate period of time.
Another yet greater shortcoming of the NEA is that it doesn't define what constitutes an "emergency," allowing a President to interpret current events–and the laws–in his own way. Alarmingly, the President doesn't operate under many limitations when it comes to defining and declaring a national emergency. Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, says, "There aren't a lot of legal limits on his ability to do that, frankly, even if there isn't a real emergency happening."
Over the course of Trump's first two years as President, he declared three events to be national emergencies, including the H1N1 influenza epidemic and a series of cyber-hacking activities that still technically constitute a national emergency to this day. Recently, Trump has openly called the US-Mexico border a crisis situation, saying, "We have a crisis at the border, of drugs, of human beings being trafficked all over the world, they're coming through . . . criminals and gang members coming through. It is national security. It is a national emergency."
So what happens when a President does declare a national emergency?
According to the Congressional Research Service, there are hundreds of specific provisions codifying what the president is allowed to do–and those powers are far-reaching and invasive into daily American lives. While "the vast majority of them are of the stand-by kind — dormant until activated," a state of a national emergency allows the President to: "seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and, in a variety of ways, control the lives of United States citizens."
NY Times
What It Means:
1. Presidents can control funding
Trump could declare a national emergency in order to fund his wall. As Kim Lane Scheppele, a professor at the Center for Human Values at Princeton University, told Vox, "It could be that by putting together a lot of different sources of emergency authority, the president could tap a lot of different funds and at least start." With the above powers to seize property and commodities, as well as regulate means of production and private enterprises, the President could re-direct government funding away from ongoing military projects to fund the border wall. Last Friday, Trump told reporters, "I can do it if I want."
Technically, he's right. If Trump's administration can prove that the border wall is a "military construction," then using military funding would fall under the U.S. code for "Reprogramming During National Emergencies," which states that a President may "apply the resources of the Department of the Army's civil works program, including funds, personnel, and equipment, to construct or assist in the construction, operation, maintenance, and repair of authorized civil works, military construction, and civil defense projects that are essential to the national defense."
2. Presidents can control the internet.
Seizure and control of transportation and communication includes controlling all internet traffic, restricting access to information deemed security risks. Today, that could mean "impeding access to certain websites and ensuring that internet searches return pro-Trump content as the top results."
Ars Technica
3. Presidents can deploy troops to your neighborhood—easily.
4. Presidents can confiscate your property.
5. Presidents can forcibly relocate Americans.
Among the most notorious and regretful instances of Presidents declaring states of emergency is Franklin D. Roosevelt's use in 1941, months after Pearl Harbour was attacked. The above powers endowed the President to forcibly relocate more than 110,000 Japanese-Americans to internment camps. To retell it simply, the President instituted martial law along the east coast, forcibly transported U.S. citizens to the camps, confiscated their property, and restricted them from leaving or communicating with the outside world. Meanwhile, Roosevelt deployed the U.S. military overseas to enter World War II. 30 years later, the NEA was designed to prevent sitting Presidents from abusing declarations of emergencies, but with its vague language, much of the law remains to be tested in court.
Equal Justice Initiative
In total, lack of clarity in the NEA gives Trump the legal grounds to argue for emergency powers over the country. However, legal experts, as well as passionate congressmen, have been outspoken about fighting against the president if he were to push that agenda. After all, congress reserves the right to overrule a president's declaration if they can pass a resolution to do so in both the House of Representatives and the Senate. However, the President would need to sign the resolution; otherwise, congress would need a second majority vote to override his veto.
President Trump is due to give a national address Tuesday night at 9PM. While he is not expected to declare a national emergency, he is expected to urge the American people that the southern border constitutes a "humanitarian and security crisis" that urgently needs to be addressed. To Trump, that means building a border wall, even if it means prolonging what is already one of the longest government shutdowns in history, or perhaps even abusing executive powers.
Meg Hanson is a Brooklyn-based writer, teacher, and jaywalker. Find Meg at her website and on Twitter @megsoyung.