Trump’s Hidden Powers
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 re-examined.
Our democracy is built on a structure of limited and separated governmental powers. The Founders took pains to prevent the amassing of too much power in any one branch of government. In times of emergency, however, it might be necessary for the president to have greater-than-normal powers and flexibility in order to respond adequately to quickly unfolding events. But what extra powers should the president have, when should she be able to access them, and how should they be constrained in their use? To answer these questions, it is important to understand what the emergency powers landscape looks like today.
There are many types of emergency powers, some set forth in laws passed by Congress, others contained in secret presidential orders. We discuss these general categories of powers, along with specific examples of emergency authorities, in an article published in the current issue (January/February 2019) of The Atlantic. One particularly important subset of these powers is a diverse collection of special statutory authorities that become available when the president or Congress declares a “national emergency.”
Both the president and Congress are free to declare a national emergency whenever they wish; there are no limits on what type of event qualifies. Under the National Emergencies Act, which went into effect in 1978, an emergency declared by the president will terminate after a year unless she renews it — but such renewals happen routinely. And while Congress may vote to terminate a presidentially declared state of emergency, it has not done so once in the past four decades.
Building on previous research in this area, the Brennan Center has identified 136 statutory powers that may become available to the president upon declaration of a national emergency. We created a database that assembles these powers by subject matter, specifies the conditions triggering their use, and lists the occasions, if any, on which they have been invoked. (The methodology we used to compile the database is available here.) We have also developed a running list of national emergencies declared since the National Emergencies Act went into effect.
These resources are eye-opening in many ways: in the nature of the powers provided, in how easily the executive can access them, and in how they have been used (or misused). Some highlights of the research include:
- Emergency powers cover almost every imaginable subject area, including the military, land use, public health, trade, federal pay schedules, agriculture, transportation, communications, and criminal law.
- Some of the laws stand out as particularly alarming in what they authorize and in their potential for abuse. One statute, for example, would allow the president to suspend a law that prohibits the testing of chemical and biological weapons on unwitting human subjects. Section 706(c) of the Communications Act of 1934 allows the president to shut down or take over radio stations. If she proclaims a threat of war, she can go further and take over wire communications as well. The International Emergency Economic Powers Act (IEEPA) allows the government to freeze any asset or block any financial transaction in which a foreign national has an interest, even if the asset belongs to an American or the transaction is between Americans. (See our piece in The Atlantic for more on these authorities.)
- Other powers seem almost absurdly mundane, to the point that it is difficult to see how they could help alleviate emergency conditions. One law, for instance, allows members of the Coast Guard to serve as notaries public in times of national emergency. Another allows the Secretary of the Interior to close the Fort McHenry National Monument.
- Of the 136 authorities available to the president in a national emergency, 96 require nothing more than her signature on the emergency declaration. Twelve contain a de minimis restriction, such as a requirement that an agency head certify the necessity of the measure (something the president can presumably order the agency head to do). Fifteen contain a more substantive restriction, such as a requirement that the emergency relate to a particular subject matter or that it involve the use of armed forces. Only 13 require a congressional (versus presidential) declaration of emergency.
- These emergency authorities have accumulated over decades. Fifty-eight of the statutes were first enacted more than half a century ago. We could find no record of usage for many of the statues — which raises the question of whether these powerful and potentially dangerous powers are even necessary. Indeed, more than half of the laws in the database (67 percent) appear to have never been invoked. At least four have been rendered facially obsolete since they were enacted. For instance, one statute provides powers regarding an island in the Panama Canal Zone that the United States no longer controls, and another one exempts World War II veterans from the draft.
- On the other hand, a few of the statutes have been used frequently, with six having been used more than 10 times. Most notably, the International Emergency Economic Powers Act has been invoked on an almost yearly basis since it was passed in 1977 and is cited in all but three of the emergencies ever declared under the National Emergencies Act. 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.
- Although the very concept of “emergency” suggests a temporary, short-term event, states of emergency last a long time, and they’re getting longer. Thirty-one of the 60* states of emergency declared since the National Emergencies Act was passed are still in effect today. The average duration of declared emergencies is 9.6 years. Twenty-five emergencies have lasted 10 years or longer; 13 of these were declared between 2001 and 2008. The longest-lasting emergency, Blocking Iranian Government Property, was first declared in 1979 on the heels of the hostage crisis and has been persistently renewed for 39 years.
- Emergency powers are being used as a pretext to deal with other problems. Presidents Obama and Trump invoked nonexistent economic crises to decrease or eliminate statutory pay increases for federal workers. (While there was arguably an economic crisis at the beginning of Obama’s administration, he continued to invoke this emergency law throughout his two terms.) President Trump invoked the 9/11 state of emergency in 2017 to fill a chronic shortage in Air Force pilots.
In short, emergency powers offer a broad array of tools that would otherwise be unavailable to the executive branch. Some are highly potent and subject to abuse, while others are already being misused as convenient fixes to non-emergency problems. A large percentage of these authorities appear to be unnecessary and/or outdated. The president can invoke dozens of these laws simply by signing her name to an emergency declaration, and such declarations tend to linger on the books for many years. The bottom line: 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.
*An earlier version of this post cited 58 states of emergency This number has been updated to reflect the February 2019 declaration of national emergency and to include a 2005 declaration of emergency related to Hurricane Katrina. The 2005 declaration was initially excluded from our list because it did not cite the National Emergencies Act in the initial declaration of emergency. A subsequent presidential order revoking the declaration did cite the National Emergencies Act.
(Image: Andrew Harrer/Getty)