Skip Navigation
Analysis

What the President Could Do If He Declares a State of Emergency

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 reexamined.

December 12, 2018
Andrew Harrer-Pool/BCJ/Getty
Andrew Harrer-Pool/BCJ/Getty

Cross-posted from The Atlantic.

In the weeks lead­ing up to the 2018 midterm elec­tions, Pres­id­ent Donald Trump reached deep into his arsenal to try to deliver votes to Repub­lic­ans.

Most of his weapons were rhet­or­ical, featur­ing a mix of lies and false induce­ments — claims that every congres­sional Demo­crat had signed on to an “open borders” bill (none had), that liber­als were foment­ing viol­ent “mobs” (they weren’t), that a 10 percent tax cut for the middle class would some­how pass while Congress was out of session (it didn’t). But a few involved the aggress­ive use — and threatened misuse — of pres­id­en­tial author­ity: He sent thou­sands of active-duty soldiers to the south­ern border to terror­ize a distant cara­van of desper­ate Cent­ral Amer­ican migrants, announced plans to end the consti­tu­tional guar­an­tee of birth­right citizen­ship by exec­ut­ive order, and tweeted that law enforce­ment had been “strongly noti­fied” to be on the lookout for “ILLEGAL VOTING.”

These meas­ures failed to carry the day, and Trump will likely conclude that they were too timid. How much further might he go in 2020, when his own name is on the ballot — or sooner than that, if he’s facing impeach­ment by a House under Demo­cratic control?

More is at stake here than the outcome of one or even two elec­tions. Trump has long signaled his disdain for the concepts of limited pres­id­en­tial power and demo­cratic rule. During his 2016 campaign, he praised murder­ous dictat­ors. He declared that his oppon­ent, Hillary Clin­ton, would be in jail if he were pres­id­ent, goad­ing crowds into fren­zied chants of “Lock her up.” He hinted that he might not accept an elect­oral loss. As demo­cra­cies around the world slide into auto­cracy, and nation­al­ism and anti­demo­cratic senti­ment are on vivid display among segments of the Amer­ican popu­lace, Trump’s evid­ent hostil­ity to key elements of liberal demo­cracy cannot be dismissed as mere bluster.

It would be nice to think that Amer­ica is protec­ted from the worst excesses of Trump’s impulses by its demo­cratic laws and insti­tu­tions. After all, Trump can do only so much without bump­ing up against the limits set by the Consti­tu­tion and Congress and enforced by the courts. Those who see Trump as a threat to demo­cracy comfort them­selves with the belief that these limits will hold him in check.

But will they? Unknown to most Amer­ic­ans, a paral­lel legal regime allows the pres­id­ent to sidestep many of the constraints that normally apply. The moment the pres­id­ent declares a “national emer­gency” — a decision that is entirely within his discre­tion — more than 100 special provi­sions become avail­able to him. While many of these tee up reas­on­able responses to genu­ine emer­gen­cies, some appear danger­ously suited to a leader bent on amass­ing or retain­ing power. For instance, the pres­id­ent can, with the flick of his pen, activ­ate laws allow­ing him to shut down many kinds of elec­tronic commu­nic­a­tions inside the United States or freeze Amer­ic­ans’ bank accounts. Other powers are avail­able even without a declar­a­tion of emer­gency, includ­ing laws that allow the pres­id­ent to deploy troops inside the coun­try to subdue domestic unrest.

This edifice of extraordin­ary powers has histor­ic­ally rested on the assump­tion that the pres­id­ent will act in the coun­try’s best interest when using them. With a hand­ful of note­worthy excep­tions, this assump­tion has held up. But what if a pres­id­ent, backed into a corner and facing elect­oral defeat or impeach­ment, were to declare an emer­gency for the sake of hold­ing on to power? In that scen­ario, our laws and insti­tu­tions might not save us from a pres­id­en­tial power grab. They might be what takes us down.

1. “A LOADED WEAPON”

The premise under­ly­ing emer­gency powers is simple: The govern­ment’s ordin­ary powers might be insuf­fi­cient in a crisis, and amend­ing the law to provide greater ones might be too slow and cumber­some. Emer­gency powers are meant to give the govern­ment a tempor­ary boost until the emer­gency passes or there is time to change the law through normal legis­lat­ive processes.

Unlike the modern consti­tu­tions of many other coun­tries, which specify when and how a state of emer­gency may be declared and which rights may be suspen­ded, the U.S. Consti­tu­tion itself includes no compre­hens­ive separ­ate regime for emer­gen­cies. Those few powers it does contain for deal­ing with certain urgent threats, it assigns to Congress, not the pres­id­ent. For instance, it lets Congress suspend the writ of habeas corpus — that is, allow govern­ment offi­cials to imprison people without judi­cial review — “when in Cases of Rebel­lion or Inva­sion the public Safety may require it” and “provide for call­ing forth the Mili­tia to execute the Laws of the Union, suppress Insur­rec­tions and repel Inva­sions.”

Nonethe­less, some legal schol­ars believe that the Consti­tu­tion gives the pres­id­ent inher­ent emer­gency powers by making him commander in chief of the armed forces, or by vest­ing in him a broad, undefined “exec­ut­ive Power.” At key points in Amer­ican history, pres­id­ents have cited inher­ent consti­tu­tional powers when taking drastic actions that were not author­ized — or, in some cases, were expli­citly prohib­ited — by Congress. Notori­ous examples include Frank­lin D. Roosevelt’s intern­ment of U.S. citizens and resid­ents of Japan­ese descent during World War II and George W. Bush’s programs of warrant­less wiretap­ping and torture after the 9/11 terror­ist attacks. Abra­ham Lincoln conceded that his unilat­eral suspen­sion of habeas corpus during the Civil War was consti­tu­tion­ally ques­tion­able, but defen­ded it as neces­sary to preserve the Union.

The Supreme Court has often upheld such actions or found ways to avoid review­ing them, at least while the crisis was in progress. Rulings such as Young­stown Sheet & Tube Company v. Sawyer, in which the Court inval­id­ated Pres­id­ent Harry Truman’s bid to take over steel mills during the Korean War, have been the excep­tion. And while those excep­tions have outlined import­ant limit­ing prin­ciples, the outer bound­ary of the pres­id­ent’s consti­tu­tional author­ity during emer­gen­cies remains poorly defined.

Pres­id­ents can also rely on a cornu­copia of powers provided by Congress, which has histor­ic­ally been the prin­cipal source of emer­gency author­ity for the exec­ut­ive branch. Through­out the late 18th and 19th centur­ies, Congress passed laws to give the pres­id­ent addi­tional leeway during milit­ary, economic, and labor crises. A more form­al­ized approach evolved in the early 20th century, when Congress legis­lated powers that would lie dormant until the pres­id­ent activ­ated them by declar­ing a national emer­gency. These stat­utory author­it­ies began to pile up — and because pres­id­ents had little incent­ive to termin­ate states of emer­gency once declared, these piled up too. By the 1970s, hundreds of stat­utory emer­gency powers, and four clearly obsol­ete states of emer­gency, were in effect. For instance, the national emer­gency that Truman declared in 1950, during the Korean War, remained in place and was being used to help prosec­ute the war in Viet­nam.

Aiming to rein in this prolif­er­a­tion, Congress passed the National Emer­gen­cies Act in 1976. Under this law, the pres­id­ent still has complete discre­tion to issue an emer­gency declar­a­tion — but he must specify in the declar­a­tion which powers he intends to use, issue public updates if he decides to invoke addi­tional powers, and report to Congress on the govern­ment’s emer­gency-related expendit­ures every six months. The state of emer­gency expires after a year unless the pres­id­ent renews it, and the Senate and the House must meet every six months while the emer­gency is in effect “to consider a vote” on termin­a­tion.

By any object­ive meas­ure, the law has failed. Thirty states of emer­gency are in effect today — several times more than when the act was passed. Most have been renewed for years on end. And during the 40 years the law has been in place, Congress has not met even once, let alone every six months, to vote on whether to end them.

As a result, the pres­id­ent has access to emer­gency powers contained in 123 stat­utory provi­sions, as recently calcu­lated by the Bren­nan Center for Justice at NYU School of Law, where I work. These laws address a broad range of matters, from milit­ary compos­i­tion to agri­cul­tural exports to public contracts. For the most part, the pres­id­ent is free to use any of them; the National Emer­gen­cies Act does­n’t require that the powers invoked relate to the nature of the emer­gency. Even if the crisis at hand is, say, a nation­wide crop blight, the pres­id­ent may activ­ate the law that allows the secret­ary of trans­port­a­tion to requis­i­tion any privately owned vessel at sea. Many other laws permit the exec­ut­ive branch to take extraordin­ary action under specified condi­tions, such as war and domestic upheaval, regard­less of whether a national emer­gency has been declared.

This legal regime for emer­gen­cies — ambigu­ous consti­tu­tional limits combined with a rich well of stat­utory emer­gency powers — would seem to provide the ingredi­ents for a danger­ous encroach­ment on Amer­ican civil liber­ties. Yet so far, even though pres­id­ents have often advanced dubi­ous claims of consti­tu­tional author­ity, egre­gious abuses on the scale of the Japan­ese Amer­ican intern­ment or the post-9/11 torture program have been rare, and most of the stat­utory powers avail­able during a national emer­gency have never been used.

But what’s to guar­an­tee that this pres­id­ent, or a future one, will show the reti­cence of his prede­cessors? To borrow from Justice Robert Jack­son’s dissent in Korematsu v. United States, the 1944 Supreme Court decision that upheld the intern­ment of Japan­ese Amer­ic­ans, each emer­gency power “lies about like a loaded weapon, ready for the hand of any author­ity that can bring forward a plaus­ible claim of an urgent need.”

2. AN INTER­NET KILL SWITCH?

Like all emer­gency powers, the laws govern­ing the conduct of war allow the pres­id­ent to engage in conduct that would be illegal during ordin­ary times. This conduct includes famil­iar incid­ents of war, such as the killing or indef­in­ite deten­tion of enemy soldiers. But the pres­id­ent can also take a host of other actions, both abroad and inside the United States.

These laws vary dramat­ic­ally in content and scope. Several of them author­ize the pres­id­ent to make decisions about the size and compos­i­tion of the armed forces that are usually left to Congress. Although such meas­ures can offer needed flex­ib­il­ity at crucial moments, they are subject to misuse. For instance, George W. Bush lever­aged the state of emer­gency after 9/11 to call hundreds of thou­sands of reserv­ists and members of the National Guard into active duty in Iraq, for a war that had noth­ing to do with the 9/11 attacks. Other powers are chilling under any circum­stances: Take a moment to consider that during a declared war or national emer­gency, the pres­id­ent can unilat­er­ally suspend the law that bars govern­ment test­ing of biolo­gical and chem­ical agents on unwit­ting human subjects.

One power poses a singu­lar threat to demo­cracy in the digital era. In 1942, Congress amended Section 706 of the Commu­nic­a­tions Act of 1934 to allow the pres­id­ent to shut down or take control of “any facil­ity or station for wire commu­nic­a­tion” upon his proclam­a­tion “that there exists a state or threat of war involving the United States,” resur­rect­ing a similar power Congress had briefly provided Woodrow Wilson during World War I. At the time, “wire commu­nic­a­tion” meant tele­phone calls or tele­grams. Given the relat­ively modest role that elec­tronic commu­nic­a­tions played in most Amer­ic­ans’ lives, the govern­ment’s asser­tion of this power during World War II (no pres­id­ent has used it since) likely created incon­veni­ence but not havoc.

We live in a differ­ent universe today. Although inter­pret­ing a 1942 law to cover the inter­net might seem far-fetched, some govern­ment offi­cials recently endorsed this read­ing during debates about cyber­se­cur­ity legis­la­tion. Under this inter­pret­a­tion, Section 706 could effect­ively func­tion as a “kill switch” in the U.S. — one that would be avail­able to the pres­id­ent the moment he proclaimed a mere threat of war. It could also give the pres­id­ent power to assume control over U.S. inter­net traffic.

The poten­tial impact of such a move can hardly be over­stated. In August, in an early-morn­ing tweet, Trump lamen­ted that search engines were “RIGGED” to serve up negat­ive articles about him. Later that day the admin­is­tra­tion said it was look­ing into regu­lat­ing the big inter­net compan­ies. “I think that Google and Twit­ter and Face­book, they’re really tread­ing on very, very troubled territ­ory. And they have to be care­ful,” Trump warned. If the govern­ment were to take control of U.S. inter­net infra­struc­ture, Trump could accom­plish directly what he threatened to do by regu­la­tion: ensure that inter­net searches always return pro-Trump content as the top results. The govern­ment also would have the abil­ity to impede domestic access to partic­u­lar websites, includ­ing social-media plat­forms. It could monitor emails or prevent them from reach­ing their destin­a­tion. It could exert control over computer systems (such as states’ voter data­bases) and phys­ical devices (such as Amazon’s Echo speak­ers) that are connec­ted to the inter­net.

To be sure, the fact that the inter­net in the United States is highly decent­ral­ized — a func­tion of a relat­ively open market for commu­nic­a­tions devices and services — would offer some protec­tion. Achiev­ing the level of govern­ment control over inter­net content that exists in places such as China, Russia, and Iran would likely be impossible in the U.S. Moreover, if Trump were to attempt any degree of inter­net takeover, an explo­sion of lawsuits would follow. Based on its First Amend­ment rulings in recent decades, the Supreme Court seems unlikely to permit heavy-handed govern­ment control over inter­net commu­nic­a­tion.

But compla­cency would be a mistake. Complete control of inter­net content would not be neces­sary for Trump’s purposes; even with less compre­hens­ive inter­ven­tions, he could do a great deal to disrupt polit­ical discourse and hinder effect­ive, organ­ized polit­ical oppos­i­tion. And the Supreme Court’s view of the First Amend­ment is not immut­able. For much of the coun­try’s history, the Court was will­ing to toler­ate signi­fic­ant encroach­ments on free speech during wartime. “The progress we have made is fragile,” Geof­frey R. Stone, a consti­tu­tional-law scholar at the Univer­sity of Chicago, has writ­ten. “It would not take much to upset the current under­stand­ing of the First Amend­ment.” Indeed, all it would take is five Supreme Court justices whose commit­ment to pres­id­en­tial power exceeds their commit­ment to indi­vidual liber­ties.

3. SANC­TION­ING AMER­IC­ANS

Next to war powers, economic powers might sound benign, but they are among the pres­id­ent’s most potent legal weapons. All but two of the emer­gency declar­a­tions in effect today were issued under the Inter­na­tional Emer­gency Economic Powers Act, or IEEPA. Passed in 1977, the law allows the pres­id­ent to declare a national emer­gency “to deal with any unusual and extraordin­ary threat” — to national secur­ity, foreign policy, or the economy — that “has its source in whole or substan­tial part outside the United States.” The pres­id­ent can then order a range of economic actions to address the threat, includ­ing freez­ing assets and block­ing finan­cial trans­ac­tions in which any foreign nation or foreign national has an interest.

In the late 1970s and '80s, pres­id­ents used the law primar­ily to impose sanc­tions against other nations, includ­ing Iran, Nicaragua, South Africa, Libya, and Panama. Then, in 1983, when Congress failed to renew a law author­iz­ing the Commerce Depart­ment to control certain exports, Pres­id­ent Ronald Reagan declared a national emer­gency in order to assume that control under IEEPA. Subsequent pres­id­ents followed his example, trans­fer­ring export control from Congress to the White House. Pres­id­ent Bill Clin­ton expan­ded IEEPA’s usage by target­ing not just foreign govern­ments but foreign polit­ical parties, terror­ist organ­iz­a­tions, and suspec­ted narcot­ics traf­fick­ers.

Pres­id­ent George W. Bush took matters a giant step further after 9/11. His Exec­ut­ive Order 13224 prohib­ited trans­ac­tions not just with any suspec­ted foreign terror­ists, but with any foreigner or any U.S. citizen suspec­ted of provid­ing them with support. Once a person is “desig­nated” under the order, no Amer­ican can legally give him a job, rent him an apart­ment, provide him with medical services, or even sell him a loaf of bread unless the govern­ment grants a license to allow the trans­ac­tion. The patriot Act gave the order more muscle, allow­ing the govern­ment to trig­ger these consequences merely by open­ing an invest­ig­a­tion into whether a person or group should be desig­nated.

Desig­na­tions under Exec­ut­ive Order 13224 are opaque and extremely diffi­cult to chal­lenge. The govern­ment needs only a “reas­on­able basis” for believ­ing that someone is involved with or supports terror­ism in order to desig­nate him. The target is gener­ally given no advance notice and no hear­ing. He may request recon­sid­er­a­tion and submit evid­ence on his behalf, but the govern­ment faces no dead­line to respond. Moreover, the evid­ence against the target is typic­ally clas­si­fied, which means he is not allowed to see it. He can try to chal­lenge the action in court, but his chances of success are minimal, as most judges defer to the govern­ment’s assess­ment of its own evid­ence.

Amer­ic­ans have occa­sion­ally been caught up in this Kafkaesque system. Several Muslim char­it­ies in the U.S. were desig­nated or invest­ig­ated based on the suspi­cion that their char­it­able contri­bu­tions over­seas benefited terror­ists. Of course if the govern­ment can show, through judi­cial proceed­ings that observe due process and other consti­tu­tional rights, that an Amer­ican group or person is fund­ing terror­ist activ­ity, it should be able to cut off those funds. But the govern­ment shut these char­it­ies down by freez­ing their assets without ever having to prove its charges in court.

In other cases, Amer­ic­ans were signi­fic­antly harmed by desig­na­tions that later proved to be mistakes. For instance, two months after 9/11, the Treas­ury Depart­ment desig­nated Garad Jama, a Somalian-born Amer­ican, based on an erro­neous determ­in­a­tion that his money-wiring busi­ness was part of a terror-finan­cing network. Jama’s office was shut down and his bank account frozen. News outlets described him as a suspec­ted terror­ist. For months, Jama tried to gain a hear­ing with the govern­ment to estab­lish his inno­cence and, in the mean­time, obtain the govern­ment’s permis­sion to get a job and pay his lawyer. Only after he filed a lawsuit did the govern­ment allow him to work as a grocery-store cash­ier and pay his living expenses. It was several more months before the govern­ment reversed his desig­na­tion and unfroze his assets. By then he had lost his busi­ness, and the stigma of having been publicly labeled a terror­ist supporter contin­ued to follow him and his family.

Despite these dramatic examples, IEEPA’s limits have yet to be fully tested. After two courts ruled that the govern­ment’s actions against Amer­ican char­it­ies were uncon­sti­tu­tional, Barack Obama’s admin­is­tra­tion chose not to appeal the decisions and largely refrained from further contro­ver­sial desig­na­tions of Amer­ican organ­iz­a­tions and citizens. Thus far, Pres­id­ent Trump has followed the same approach.

That could change. In Octo­ber, in the lead-up to the midterm elec­tions, Trump char­ac­ter­ized the cara­van of Cent­ral Amer­ican migrants headed toward the U.S. border to seek asylum as a “National Emer­gency.” Although he did not issue an emer­gency proclam­a­tion, he could do so under IEEPA. He could determ­ine that any Amer­ican inside the U.S. who offers mater­ial support to the asylum seekers — or, for that matter, to undoc­u­mented immig­rants inside the United States — poses “an unusual and extraordin­ary threat” to national secur­ity, and author­ize the Treas­ury Depart­ment to take action against them.

Such a move would carry echoes of a law passed recently in Hungary that crim­in­al­ized the provi­sion of finan­cial or legal services to undoc­u­mented migrants; this has been dubbed the “Stop Soros” law, after the Hungarian Amer­ican phil­an­throp­ist George Soros, who funds migrants’-rights organ­iz­a­tions. Although an order issued under IEEPA would not land targets in jail, it could be imple­men­ted without legis­la­tion and without afford­ing targets a trial. In prac­tice, identi­fy­ing every Amer­ican who has hired, housed, or provided paid legal repres­ent­a­tion to an asylum seeker or undoc­u­mented immig­rant would be impossible — but all Trump would need to do to achieve the desired polit­ical effect would be to make high-profile examples of a few. Indi­vidu­als targeted by the order could lose their jobs, and find their bank accounts frozen and their health insur­ance canceled. The battle in the courts would then pick up exactly where it left off during the Obama admin­is­tra­tion — but with a newly recon­sti­t­uted Supreme Court making the final call.

4. BOOTS ON MAIN STREET

The idea of tanks rolling through the streets of U.S. cities seems funda­ment­ally incon­sist­ent with the coun­try’s notions of demo­cracy and free­dom. Amer­ic­ans might be surprised, there­fore, to learn just how read­ily the pres­id­ent can deploy troops inside the coun­try.

The prin­ciple that the milit­ary should not act as a domestic police force, known as “posse comit­atus,” has deep roots in the nation’s history, and it is often mistaken for a consti­tu­tional rule. The Consti­tu­tion, however, does not prohibit milit­ary parti­cip­a­tion in police activ­ity. Nor does the Posse Comit­atus Act of 1878 outlaw such parti­cip­a­tion; it merely states that any author­ity to use the milit­ary for law-enforce­ment purposes must derive from the Consti­tu­tion or from a stat­ute.

The Insur­rec­tion Act of 1807 provides the neces­sary author­ity. As amended over the years, it allows the pres­id­ent to deploy troops upon the request of a state’s governor or legis­lature to help put down an insur­rec­tion within that state. It also allows the pres­id­ent to deploy troops unilat­er­ally, either because he determ­ines that rebel­li­ous activ­ity has made it “imprac­tic­able” to enforce federal law through regu­lar means, or because he deems it neces­sary to suppress “insur­rec­tion, domestic viol­ence, unlaw­ful combin­a­tion, or conspir­acy” (terms not defined in the stat­ute) that hinders the rights of a class of people or “impedes the course of justice.”

Pres­id­ents have wiel­ded the Insur­rec­tion Act under a range of circum­stances. Dwight Eisen­hower used it in 1957 when he sent troops into Little Rock, Arkan­sas, to enforce school deseg­reg­a­tion. George H. W. Bush employed it in 1992 to help stop the riots that erup­ted in Los Angeles after the verdict in the Rodney King case. George W. Bush considered invok­ing it to help restore public order after Hurricane Katrina, but opted against it when the governor of Louisi­ana resisted federal control over the state’s National Guard. While contro­versy surroun­ded all these examples, none suggests obvi­ous over­reach.

And yet the poten­tial misuses of the act are legion. When Chicago exper­i­enced a spike in homicides in 2017, Trump tweeted that the city must “fix the horrible ‘carnage’ ” or he would “send in the Feds!” To carry out this threat, the pres­id­ent could declare a partic­u­lar street gang — say, MS‑13 — to be an “unlaw­ful combin­a­tion” and then send troops to the nation’s cities to police the streets. He could char­ac­ter­ize sanc­tu­ary cities — cities that refuse to provide assist­ance to immig­ra­tion-enforce­ment offi­cials — as “conspir­acies” against federal author­it­ies, and order the milit­ary to enforce immig­ra­tion laws in those places. Conjur­ing the specter of “liberal mobs,” he could send troops to suppress alleged riot­ing at the fringes of anti-Trump protests.

How far could the pres­id­ent go in using the milit­ary within U.S. borders? The Supreme Court has given us no clear answer to this ques­tion. Take Ex parte Milligan, a famous ruling from 1866 inval­id­at­ing the use of a milit­ary commis­sion to try a civil­ian during the Civil War. The case is widely considered a high-water mark for judi­cial constraint on exec­ut­ive action. Yet even as the Court held that the pres­id­ent could not use war or emer­gency as a reason to bypass civil­ian courts, it noted that martial law — the displace­ment of civil­ian author­ity by the milit­ary — would be appro­pri­ate in some cases. If civil­ian courts were closed as a result of a foreign inva­sion or a civil war, for example, martial law could exist “until the laws can have their free course.” The message is decidedly mixed: Claims of emer­gency or neces­sity cannot legit­im­ize martial law … until they can.

Presen­ted with this ambi­gu­ity, pres­id­ents have explored the outer limits of their consti­tu­tional emer­gency author­ity in a series of direct­ives known as Pres­id­en­tial Emer­gency Action Docu­ments, or PEADS. PEADS, which origin­ated as part of the Eisen­hower admin­is­tra­tion’s plans to ensure continu­ity of govern­ment in the wake of a Soviet nuclear attack, are draft exec­ut­ive orders, proclam­a­tions, and messages to Congress that are prepared in advance of anti­cip­ated emer­gen­cies. PEADS are closely guarded within the govern­ment; none has ever been publicly released or leaked. But their contents have occa­sion­ally been described in public sources, includ­ing FBI memor­andums that were obtained through the Free­dom of Inform­a­tion Act as well as agency manu­als and court records. Accord­ing to these sources, PEADS draf­ted from the 1950s through the 1970s would author­ize not only martial law but the suspen­sion of habeas corpus by the exec­ut­ive branch, the revoc­a­tion of Amer­ic­ans’ pass­ports, and the roundup and deten­tion of “subvers­ives” iden­ti­fied in an FBI “Secur­ity Index” that contained more than 10,000 names.

Less is known about the contents of more recent PEADS and equi­val­ent plan­ning docu­ments. But in 1987, The Miami Herald repor­ted that Lieu­ten­ant Colonel Oliver North had worked with the Federal Emer­gency Manage­ment Agency to create a secret contin­gency plan author­iz­ing “suspen­sion of the Consti­tu­tion, turn­ing control of the United States over to FEMA, appoint­ment of milit­ary command­ers to run state and local govern­ments and declar­a­tion of martial law during a national crisis.” A 2007 Depart­ment of Home­land Secur­ity report lists “martial law” and “curfew declar­a­tions” as “crit­ical tasks” that local, state, and federal govern­ment should be able to perform in emer­gen­cies. In 2008, govern­ment sources told a reporter for Radar magazine that a version of the Secur­ity Index still exis­ted under the code name Main Core, allow­ing for the appre­hen­sion and deten­tion of Amer­ic­ans tagged as secur­ity threats.

Since 2012, the Depart­ment of Justice has been request­ing and receiv­ing funds from Congress to update several dozen PEADS first developed in 1989. The fund­ing requests contain no indic­a­tion of what these PEADS encom­pass, or what stand­ards the depart­ment intends to apply in review­ing them. But whatever the Obama admin­is­tra­tion’s intent, the review has now passed to the Trump admin­is­tra­tion. It will fall to Jeff Session­s’s successor as attor­ney general to decide whether to rein in or expand some of the more fright­en­ing features of these peads. And, of course, it will be up to Pres­id­ent Trump whether to actu­ally use them — some­thing no previ­ous pres­id­ent appears to have done.

5. KIND­LING AN EMER­GENCY

What would the Founders think of these and other emer­gency powers on the books today, in the hands of a pres­id­ent like Donald Trump? In Young­stown, the case in which the Supreme Court blocked Pres­id­ent Truman’s attempt to seize the nation’s steel mills, Justice Jack­son observed that broad emer­gency powers were “some­thing the fore­fath­ers omit­ted” from the Consti­tu­tion. “They knew what emer­gen­cies were, knew the pres­sures they engender for author­it­at­ive action, knew, too, how they afford a ready pretext for usurp­a­tion,” he wrote. “We may also suspect that they suspec­ted that emer­gency powers would tend to kindle emer­gen­cies.”

In the past several decades, Congress has provided what the Consti­tu­tion did not: emer­gency powers that have the poten­tial for creat­ing emer­gen­cies rather than ending them. Pres­id­ents have built on these powers with their own secret direct­ives. What has preven­ted the whole­sale abuse of these author­it­ies until now is a baseline commit­ment to liberal demo­cracy on the part of past pres­id­ents. Under a pres­id­ent who does­n’t share that commit­ment, what might we see?

Imagine that it’s late 2019. Trump’s approval ratings are at an all-time low. A disgruntled former employee has leaked docu­ments show­ing that the Trump Organ­iz­a­tion was involved in illegal busi­ness deal­ings with Russian olig­archs. The trade war with China and other coun­tries has taken a signi­fic­ant toll on the economy. Trump has been caught once again disclos­ing clas­si­fied inform­a­tion to Russian offi­cials, and his inter­na­tional gaffes are becom­ing impossible for lawmakers concerned about national secur­ity to ignore. A few of his Repub­lican support­ers in Congress begin to distance them­selves from his admin­is­tra­tion. Support for impeach­ment spreads on Capitol Hill. In straw polls pitting Trump against vari­ous poten­tial Demo­cratic pres­id­en­tial candid­ates, the Demo­crat consist­ently wins.

Trump reacts. Unfazed by his own brazen hypo­crisy, he tweets that Iran is plan­ning a cyber oper­a­tion to inter­fere with the 2020 elec­tion. His national-secur­ity adviser, John Bolton, claims to have seen iron­clad (but highly clas­si­fied) evid­ence of this planned assault on U.S. demo­cracy. Trump’s inflam­mat­ory tweets provoke predict­able saber rattling by Iranian lead­ers; he responds by threat­en­ing pree­mpt­ive milit­ary strikes. Some Defense Depart­ment offi­cials have misgiv­ings, but others have been wait­ing for such an oppor­tun­ity. As Iran’s state­ments grow more warlike, “Iran­o­pho­bia” takes hold among the Amer­ican public.

Proclaim­ing a threat of war, Trump invokes Section 706 of the Commu­nic­a­tions Act to assume govern­ment control over inter­net traffic inside the United States, in order to prevent the spread of Iranian disin­form­a­tion and propa­ganda. He also declares a national emer­gency under IEEPA, author­iz­ing the Treas­ury Depart­ment to freeze the assets of any person or organ­iz­a­tion suspec­ted of support­ing Iran’s activ­it­ies against the United States. Wield­ing the author­ity conferred by these laws, the govern­ment shuts down several left-lean­ing websites and domestic civil-soci­ety organ­iz­a­tions, based on govern­ment determ­in­a­tions (clas­si­fied, of course) that they are subject to Iranian influ­ence. These include websites and organ­iz­a­tions that are focused on getting out the vote.

Lawsuits follow. Several judges issue orders declar­ing Trump’s actions uncon­sti­tu­tional, but a hand­ful of judges appoin­ted by the pres­id­ent side with the admin­is­tra­tion. On the eve of the elec­tion, the cases reach the Supreme Court. In a 5–4 opin­ion writ­ten by Justice Brett Kavanaugh, the Court observes that the pres­id­ent’s powers are at their zenith when he is using author­ity gran­ted by Congress to protect national secur­ity. Setting new preced­ent, the Court holds that the First Amend­ment does not protect Iranian propa­ganda and that the govern­ment needs no warrant to freeze Amer­ic­ans’ assets if its goal is to mitig­ate a foreign threat.

Protests erupt. On Twit­ter, Trump calls the protest­ers trait­ors and suggests (in capital letters) that they could use a good beat­ing. When coun­ter­pro­test­ers oblige, Trump blames the original protest­ers for spark­ing the viol­ent confront­a­tions and deploys the Insur­rec­tion Act to feder­al­ize the National Guard in several states. Using the Pres­id­en­tial Alert system first tested in Octo­ber 2018, the pres­id­ent sends a text message to every Amer­ic­an’s cell­phone, warn­ing that there is “a risk of viol­ence at polling stations” and that “troops will be deployed as neces­sary” to keep order. Some members of oppos­i­tion groups are frightened into stay­ing home on Elec­tion Day; other people simply can’t find accur­ate inform­a­tion online about voting. With turnout at a histor­ical low, a pres­id­ent who was facing impeach­ment just months earlier hand­ily wins reelec­tion — and marks his victory by renew­ing the state of emer­gency.

This scen­ario might sound extreme. But the misuse of emer­gency powers is a stand­ard gambit among lead­ers attempt­ing to consol­id­ate power. Author­it­ari­ans Trump has openly claimed to admire — includ­ing the Phil­ip­pines’ Rodrigo Duterte and Turkey’s Recep Tayyip Erdoğan — have gone this route.

Of course, Trump might also choose to act entirely outside the law. Pres­id­ents with a far stronger commit­ment to the rule of law, includ­ing Lincoln and Roosevelt, have done exactly that, albeit in response to real emer­gen­cies. But there is little that can be done in advance to stop this, other than attempt­ing deterrence through robust over­sight. The remed­ies for such beha­vior can come only after the fact, via court judg­ments, polit­ical blow­back at the voting booth, or impeach­ment.

By contrast, the dangers posed by emer­gency powers that are writ­ten into stat­ute can be mitig­ated through the simple expedi­ent of chan­ging the law. Commit­tees in the House could begin this process now by under­tak­ing a thor­ough review of exist­ing emer­gency powers and declar­a­tions. Based on that review, Congress could repeal the laws that are obsol­ete or unne­ces­sary. It could revise others to include stronger protec­tions against abuse. It could issue new criteria for emer­gency declar­a­tions, require a connec­tion between the nature of the emer­gency and the powers invoked, and prohibit indef­in­ite emer­gen­cies. It could limit the powers set forth in PEADS.

Congress, of course, will under­take none of these reforms without extraordin­ary public pres­sure — and until now, the public has paid little heed to emer­gency powers. But we are in uncharted polit­ical territ­ory. At a time when other demo­cra­cies around the world are slip­ping toward author­it­ari­an­ism — and when the pres­id­ent seems eager for the United States to follow their example — we would be wise to shore up the guard­rails of liberal demo­cracy. Fixing the current system of emer­gency powers would be a good place to start.

(Image: BCJ/Andrew Harrer/Getty)