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Analysis

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.

Last Updated: September 4, 2019
Published: December 5, 2018

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 Janu­ary/Febru­ary 2019 issue 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.”

Pres­id­en­tial declar­a­tions of national emer­gency are governed by the National Emer­gen­cies Act, which went into effect in 1978. Under this law, the pres­id­ent has signi­fic­ant discre­tion to declare a national emer­gency; there are no stat­utory limit­a­tions, beyond the word “emer­gency” itself, on what type of event qual­i­fies. The law provides that a national emer­gency will termin­ate after a year unless the pres­id­ent renews it, but such renew­als happen routinely. And while Congress may vote to termin­ate a pres­id­en­tially declared state of emer­gency, it has done so only once in four decades, in response to Pres­id­ent Donald Trump’s declar­a­tion of a national emer­gency to secure fund­ing that Congress had expressly denied for the construc­tion of a wall along the south­ern border. Congress voted to end that emer­gency, but the pres­id­ent vetoed the bill, and so the emer­gency remains in place.

Build­ing on previ­ous research in this area, the Bren­nan Center has iden­ti­fied 123 stat­utory powers that may become avail­able to the pres­id­ent when she declares a national emer­gency. An addi­tional 13 stat­utory powers become avail­able when a national emer­gency is declared by Congress. We created a data­base that assembles these 136 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 facil­it­ies 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 five 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-four of the 62 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.

*All stat­ist­ics are current as of Septem­ber 4, 2019. For an updates on exist­ing emer­gency declar­a­tions, see our running list of emer­gency declar­a­tions.

** This figure was calcu­lated using only those declared emer­gen­cies that already have lapsed or been termin­ated. Incor­por­at­ing exist­ing emer­gen­cies would result in an arti­fi­cially low number, as it is highly unlikely that all such emer­gen­cies will termin­ate at the end of this year.

(Image: Andrew Harrer/Getty)