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Analysis

Reform Presidential Emergency Powers Before It’s Too Late

Trump was urged to use the extraordinary power of the presidency to stop Biden from taking office.

The House Janu­ary 6 commit­tee contin­ues to find evid­ence that the United States only narrowly avoided a coup at the end of the Trump admin­is­tra­tion. Docu­ments turned over to the commit­tee reveal that Repub­lican members of Congress encour­aged the former pres­id­ent to use emer­gency powers — some real, some imagined — to over­turn the elec­tion. To stop a future pres­id­ent from invok­ing these laws to stay in office, Congress must pass legis­la­tion that guards against pres­id­en­tial abuse of emer­gency powers.

Late last month, CNN obtained over 2,300 text messages that White House Chief of Staff Mark Mead­ows sent and received between Elec­tion Day 2020 and Pres­id­ent Biden’s inaug­ur­a­tion. They make for terri­fy­ing read­ing, but one in partic­u­lar stands out. On Janu­ary 17, 2021, Rep. Marjorie Taylor Greene (R-GA) sent Mead­ows a text stat­ing, “In our private chat with only Members, several are saying the only way to save our Repub­lic is for Trump to call for Marshall [sic] law. I don’t know on those things. I just wanted you to tell him. They stole this elec­tion. We all know. They will destroy our coun­try next.”

As the Wash­ing­ton Post has repor­ted, Greene wasn’t the only one relay­ing messages to Trump to use his emer­gency powers to stay in office. Other Repub­lican lawmakers and Trump allies also told the Trump admin­is­tra­tion to declare martial law as well as invoke the Insur­rec­tion Act, use the Inter­na­tional Emer­gency Economic Powers Act to seize voting machines, and make the U.S. milit­ary conduct the elec­tion again. Gen. Mark A. Milley, chair­man of the Joint Chiefs of Staff, was so concerned Trump might attempt a coup through emer­gency powers that he told the other joint chiefs he would resign rather than carry out an illegal order.

To be sure, some of Trump’s support­ers were delu­sional about the powers of the pres­id­ent. For instance, accord­ing to the Bren­nan Center’s analysis, the pres­id­ent has no legal author­ity to impose martial law, and there is no law that would allow the milit­ary to “rerun” an elec­tion.

But other emer­gency powers are all too real, and during his time in office, Trump didn’t hesit­ate to use them when he wanted to unilat­er­ally impose his will on the coun­try. For example, when Congress would­n’t fund his south­ern border wall, Trump declared a national emer­gency to open the spigot. And although Trump never followed through on his threats of invok­ing the Insur­rec­tion Act during the protests over the police killing of George Floyd, the law is in dire need of reform. It has not been updated in more than 150 years and gives the pres­id­ent far too much discre­tion to use the milit­ary as a domestic police force.

The text messages — and the very real possib­il­ity Trump may run for pres­id­ent again — should spur Congress to reform the pres­id­ent’s emer­gency powers. There are several bills before Congress right now — includ­ing the Protect­ing Our Demo­cracy Act and the National Secur­ity Powers Act — that would estab­lish a vital check against abuse. They would place a time limit on pres­id­en­tial emer­gency declar­a­tions unless Congress voted to extend them. Congress should enact this basic reform and incor­por­ate safe­guards into the Insur­rec­tion Act and Inter­na­tional Emer­gency Economic Powers Act as well.

Build­ing checks and balances into the most potent author­it­ies the pres­id­ent possesses should be uncon­tro­ver­sial in a demo­cracy governed by the rule of law. Without such reforms, we continue to tempt fate that a pres­id­ent might one day use these powers to try to do away with demo­cracy for good.