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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
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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.