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Analysis

The Dangers Of Trump’s Secret Executive Powers

The pandemic may leave Americans vulnerable to emergency powers they’ve never even heard of and can’t access.

Last Updated: April 10, 2020
Published: May 13, 2020

This origin­ally appeared in the New York Times.

The past few weeks have given Amer­ic­ans a crash course in the powers that federal, state and local govern­ments wield during emer­gen­cies. We’ve seen busi­nesses closed down, citizens quar­ant­ined and travel restric­ted. When Pres­id­ent Trump declared emer­gen­cies on March 13 under both the Stafford Act and the National Emer­gen­cies Act, he boas­ted, “I have the right to do a lot of things that people don’t even know about.”

Other govern­ment docu­ments have revealed some of the actions that older pres­id­en­tial emer­gency action docu­ments — those issued up through the 1970s — purpor­ted to author­ize. These include suspen­sion of habeas corpus by the pres­id­ent (not by Congress, as assigned in the Consti­tu­tion), deten­tion of United States citizens who are suspec­ted of being “subvers­ives,” warrant­less searches and seizures and the impos­i­tion of martial law. 

Some of these actions would seem uncon­sti­tu­tional, at least in the absence of author­iz­a­tion by Congress. Past pres­id­en­tial emer­gency action docu­ments, however, have tested the line of how far pres­id­ents’ consti­tu­tional author­ity may stretch in an emer­gency.

Based on budget­ary requests from the Depart­ment of Justice to Congress and other docu­ments, it appears that pres­id­en­tial emer­gency action docu­ments were revised in the late 1980s, in the 2000s and again start­ing in 2012 and continu­ing into the Trump admin­is­tra­tion. The latest numbers avail­able suggest there are between 50 and 60 such docu­ments in exist­ence.