April 12, 2020

Yesterday, the New York Times ran an op-ed by Elizabeth Goitein and Andrew Boyle of the highly-regarded Brennan Center for Justice at New York University Law School, calling our attention to the fact that Trump has at his disposal extraordinary emergency powers. The authors tell us what they have been able to discover about a highly classified series of documents called “presidential emergency action documents,” or PEADs.

These documents are drafts of laws, executive orders, and proclamations that could be used in case of emergency. The government began to hold these drafts during the Eisenhower administration out of fear that a nuclear attack would require an immediate response. We know very little about what is in them, but the declassification of a few of them has revealed that, if implemented, they would allow the president to arrest people at will, jail “subversive” citizens, and declare martial law.

While people are alarmed at the revelation that such PEADs exist, it’s actually no secret that the president can unleash extraordinary powers in times of emergency through other means. Even without the PEADs, the president can seize assets, have people arrested, shut down electronic communications, and so on, and there is little limit to how and when these powers can be used. Under the National Emergencies Act, passed in 1976, in any emergency declaration the president has to specify which powers he intends to use, and tell Congress every six months how much the government has spent on the emergency. Congress can override the president’s declaration and must reauthorize it every six months, and the emergency declaration expires after a year unless the president renews it. But the system has permitted "emergencies" to take root unchecked. Currently, more than thirty emergency declarations are in effect in America, and Congress has made no effort to end them.

Emergency powers are not necessarily a bad thing: a nation’s leader must be able to respond quickly to a crisis. The problem is the existence of emergency powers that have no legal guardrails. Indeed, the authors of the New York Times op-ed are not necessarily against the draft orders; they simply want Congress to oversee these secret PEADs.

And that’s the rub. The problem the op-ed identifies is not really the PEADs. The problem is that Trump is the man who has them at his disposal.

Throughout his presidency, Trump has worked to expand his power, and the novel coronavirus crisis is encouraging this inclination.

Just recently, he has fired the intelligence community inspector general Michael Atkinson, admitting openly that he did so to retaliate because Atkinson alerted House Intelligence Committee chair Adam Schiff that then-acting Director of National Intelligence Joseph Maguire was withholding a whistleblower complaint that, by law, he had to turn over to Congress.

Trump has announced he will not comply with the oversight provisions in the $2.2 trillion coronavirus relief package.

His lawyers are currently arguing that the president and those who work for him do not have to comply with subpoenas to turn over his financial records to Congress or to a New York official investigation because the president is immune from a criminal investigation while in office—even if he shoots someone on Fifth Avenue (yes, one of the judges who rules on the issue asked about that, specifically).

Trump demands that White House officials praise him in public and won’t put up with criticism. Just tonight he retweeted a tweet calling for the firing of top infectious disease expert Anthony Fauci, who recently said that the administration’s slow response to the novel coronavirus has cost lives.

Last week, complaining about the media coverage of his administration’s response to the novel coronavirus, he said that Democrats “want to make Trump look as bad as they can, because they want to try and win an election that they shouldn’t be allowed to win based on the fact that we have done a great job.”

“An election that they shouldn’t be allowed to win.”

It seems clear that emergency powers in the hands of such a man could enable him to destroy our democracy.

But here’s what’s key to remember: Our system has a built-in remedy for a president who abuses his power. Our Constitution requires Congress to check a runaway president. The House of Representatives is trying hard to do so, but the Republican Senate refuses.

Senate Majority Leader Mitch McConnell has consistently supported Trump as he has attacked our democracy, and a terrific piece by Jane Mayer in the New Yorker today explores why. In a piece entitled “How Mitch McConnell Became Trump’s Enabler-in-Chief,” Mayer argues that McConnell is determined to wield power above all else, and believes that the only way to do that is to control huge financial resources to get his party’s candidates elected. To gather those resources, he needs to work with wealthy donors, including business leaders for whom he does favors.

McConnell is virtually shutting down Congress to avoid taking up anything that would upset Republican donors. “At the end of 2019,” Mayer writes, “more than two hundred and seventy-five bills, passed by the House of Representatives with bipartisan support, were sitting dormant on McConnell’s desk.” These included an enormously popular bill for lowering the costs of prescription drugs, but McConnell, who gets more contributions from the pharmaceutical industry than any other senator, refused to take it up, saying he opposes “socialist price controls.” Political scientist Norm Ornstein of the right-leaning American Enterprise Institute says McConnell “will go down in history as one of the most significant people in destroying the fundamentals of our constitutional democracy.” He told Mayer, “There isn’t anyone remotely close. There’s nobody as corrupt, in terms of violating the norms of government.”

McConnell is no fan of Trump, but needs him. McConnell is enormously unpopular in his home state of Kentucky. Voters there love Trump, though, and McConnell's ratings go up whenever he bolsters the president. So while he works to keep money flowing into the coffers of Republican Party leaders, McConnell is careful not to cross Trump, no matter what he does. In turn, his fellow Republicans cannot buck McConnell without losing access to the money and favors that will keep them in office.

It is indeed dangerous that Trump has such sweeping emergency powers at his disposal, but the problem is not the emergency powers. The problem is the president and the Republican senators, who could check Trump’s increasing authoritarianism at any time, if only they wanted to.

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Notes:

Op-ed: https://www.nytimes.com/2020/04/10/opinion/trump-coronavirus-emergency-powers.html

https://www.governmentattic.org/18docs/NRCupdtPEADS_2004.pdf

Emergency powers: https://www.theatlantic.com/magazine/archive/2019/01/presidential-emergency-powers/576418/

Secret law: https://www.brennancenter.org/our-work/research-reports/new-era-secret-law

Emergency laws: https://www.reaganlibrary.gov/sites/default/files/digitallibrary/smof/nsc-defensepolicy/levine/R3/40-328-R3-001-2018.pdf

Lawsuits: https://www.nbcnews.com/politics/donald-trump/trump-s-lawyers-argue-he-can-t-be-charged-while-n1070711

Fauci: https://www.nytimes.com/2020/04/12/us/politics/trump-fauci-coronavirus.html

Mayer: https://www.newyorker.com/magazine/2020/04/20/how-mitch-mcconnell-became-trumps-enabler-in-chief