This evening President Trump speaks to the nation (uncharacteristically, other than by twitter!). He is expected to expound on his threat to invoke a “national emergency” to clear the way for his acting unilaterally to build a physical wall on the US/Mexico border. Americans are accustomed to the president’s “alternative facts” and repetitive lying, but are not accustomed to the nature of national emergencies. Such familiarity has become crucially important. At least on a short term basis, though possibly for a limited topic, this involves temporary suspension of the federal separation of powers. Yes; this is heady stuff in the hands of a fool.

In the January/February issue of The Atlantic, Elizabeth Goitein, author of The New Era of Secret Law, published “What the President Could Do if He Declares a State of Emergency.” As co-director of the Liberty and National Security Program at the Brennan Center for Justice, Goitein is thoroughly acquainted with American presidents’ access to otherwise prohibited powers simply by their declaring a national emergency. There are others qualified to explain, criticize, and defend the Emergency Powers Act and related legislation, of course, so I encourage your Google pursuit of opposing views, such as recently that of Bruce Ackerman (see the footnote reference below). As to Goitein’s article, the one I recommend that you read in its entirety, it can be found at https://www.theatlantic.com/magazine/archive/2019/01/presidential-emergency-powers/576418/.

There is purpose, of course, in a disastrous, unforeseen emergency for overriding the usual constraints on the president, thereby removing barriers to swift and unilateral presidential action. Of course, that carries its own dangers, for the customary restrictions on executive power are not in place without reason themselves. Traditionally the fall-back safeguard is that Congress will assume that a given president will act in the country’s best interest when he or she is proceeding with negligible oversight.

Obviously, the provision—intended only for emergency conditions for which Congressional action would be insufficiently agile—could be disastrous if that assumption were to be wrong. It is not intended for use just because a president cannot otherwise be politically successful. It is not meant to be a political tool in the executive toolbox for overriding Congressional action or its intentional inaction. It is for real emergencies only.

Problematically, however, the president does not have to get Congressional approval to declare an emergency or to use it once declared. It takes little imagination to consider the danger to the country if the president were to be unhinged, narcissistic, misinformed, or otherwise impaired.

Consider, as Goitein warns, that a presidential declaration of a national emergency opens up more than 100 special provisions enabling increased presidential power. As she puts it, “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 . . . 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 president seemingly eager to be the top branch of government rather than one-third of it.

Moreover, it is not clear that a president will refrain from expand his/her emergency power still further to include other matters than those used to justify the emergency to begin with. Goitein states, “the National Emergencies Act doesn’t require that the powers invoked relate to the nature of the emergency” [italics mine; JC]. 

Are there ways for a Congress to act such as to prevent this potential run-away power grab? As I understand Goitein’s article, the Congress would have to be far quicker and more resolute than the Senate has been now and that the House has normally been in the best of times. In other words, though there are Congressional safeguards available, they are leaky ones, on which the Congress has typically exercised minimal control.

However,

Please note this proviso that readers should carefully examine the specifics of what I’ve said here. My training and experience are neither authoritative nor even fully informed. Check what others have said about the emergency powers a president may unilaterally access. Trump has behaved erratically enough for any hint of his getting excessive power is to be checked out before it actually occurs. His lying makes everything he says suspect. This is not the time to take risks with this man, described by mental health professionals as “psychotically narcissistic” and by a majority of Americans as prone to make even critical things up, and to break agreements and promises as if he’d never uttered them.

President Trump has this month already begun threatening that a “national emergency” on our southern border—an “emergency” that the Republican Senate, the former Republican House, and the current Democratic House do not recognize as even close to an emergency—will call for a formal presidential emergency declaration if he doesn’t get his way. Such a declaration might occur as early as this evening. More chilling is that once the nation has been put on an emergency footing with expanded powers vested in Trump, it may be difficult or impossible to predict to what topics and degrees that uncontrolled power might be extended.

Note

An opposing view: A less well-reasoned argument in my opinion, though it is from an authoritative source, is “No, Trump Cannot Declare an ‘Emergency’ to Build His Wall” by Bruce Ackerman, January 5 in the New York Times. Ackerman is professor of law at Yale and author of The Decline and Fall of the American Republic.