How long can this go on?
Today, much of the law of the land can be reversed through a Presidential declaration of National Emergency. Now, most people would agree that in an age of intercontinental ballistic missiles, nuclear and biological weapons and so on, there are emergencies conceivable where, for example, the commander-in-chief must act in order to preserve life and defend the nation, because there is no time to convene Congress and debate a declaration of war.
Right?
In 2003, President George W. Bush proclaimed a National Emergency to deal with the imminent threat of . . . Zimbabwe.
“I, GEORGE W. BUSH, President of the United States of America, have determined that the actions and policies of certain members of the Government of Zimbabwe and other persons to undermine Zimbabwe’s democratic processes . . . constitute an unusual and extraordinary threat to the foreign policy of the United States, and I hereby declare a national emergency to deal with that threat.”
Executive Order 13288 of March 6, 2003
Bush invoked powers to seize the property of a long list of Zimbabwean nationals, including property that might “hereafter come within the possession or control of United States persons”, citing authority granted him under the International Emergency Economic Powers Act, specifically Section §1701, Unusual and extraordinary threat; declaration of national emergency; exercise of Presidential authorities.
It’s not that there weren’t real problems, at some level. But if whatever was going on in Zimbabwe could be said (with a straight face) to pose an “unusual and extraordinary threat” to the United States of America, then literally anything goes. And in point of fact, there are dozens of ongoing National Emergencies—most of them being renewed on an annual basis.
So what is the definition of National Emergency? The definition is up to the President. What level of threat constitutes a National Emergency? Up to the President. How imminent does the threat have to be? President’s discretion. The ordinary, everyday meaning of “National Emergency” has no bearing. The words mean whatever someone can make them mean. (Maybe it’s ironic that Supreme Court justices have been known to pontificate about interpreting laws and the Constitution according to the ordinary meaning of words, and yet apparently have nothing to say about this.)
Consider something a little more alarming, 50 U.S. Code §1515.
After November 19, 1969, the operation of this chapter, or any portion thereof, may be suspended by the President during the period of any war declared by Congress and during the period of any national emergency declared by Congress or by the President.
This chapter means 50 U.S. Code Chapter 32, entitled Chemical and Biological Warfare Program, which includes this crucial section (§1520a):
The Secretary of Defense may not conduct (directly or by contract)—
(1) any test or experiment involving the use of a chemical agent or biological agent on a civilian population; or
(2) any other testing of a chemical agent or biological agent on human subjects.
This is a prohibition against testing a possible weapon of mass destruction on civilians, and §1515 provides for the suspension of said ban by Presidential declaration of National Emergency, which, as we have seen, does not have to constitute an “emergency” in any normal sense of the word. It doesn’t even have to constitute a physical threat. A “threat to policy” seems sufficient.
If it appears unthinkable that any President could be that cavalier with human lives, it’s useful to remember that some of today’s headlines would have been unthinkable just a few years ago, and in a year or two will probably be overshadowed by the latest TikTok stunt. The past does not restrain the future.
On December 20th, the New York Times published a column by Thomas Edsall summarizing ways in which Trump 2.0 might begin to resemble what we refer to in other countries as dictatorship—not in spite of the law of the land, but by means of it.
For example, according to the Brennan Center for Justice, there are “148 statutory powers that may become available to the president upon declaration of a national emergency.” Many are of administrative nature. Some pertain to property seizures. A few, such as the one mentioned above, are chilling.
And there is the Insurrection Act, Chapter 13, Title 10 of the US Code.
Section 252:
Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.
10 U.S. Code § 252 My emphasis.
What constitutes an “unlawful assemblage”? In principle, a mass protest without a permit is an unlawful assemblage. And if a hypothetical protest could hypothetically choke off traffic to a federal courthouse or tax office, that protest could be said to make it impractical to enforce the laws of the United States. And a President could then decide it’s necessary to send in the US Army, or Special Forces snipers.
My concern here is not Trump 2.0, although that prospect should give pause. The larger point is that the survival of democracy in our country appears to depend more on the restraint of those in power and not so much on the law itself. And restraint is a commodity in dangerously short supply.
The institutions of American democracy failed catastrophically once before, resulting in four years of war and 600,000 dead. It is folly to take those institutions for granted.
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