TIME FOR THAT LEGAL UPDATE, DONTCHA THINK?
COMPILATION AND COMMENTARY
BY LUCY WARNER
FEBRUARY 15, 2019

THE NEWS FROM THIS DAY FEELS TO ME AS THOUGH IT MAY BE THE WORST OF MY LIFETIME, BUT IT ISN’T. THE ASSASSINATIONS OF JOHN F KENNEDY AND MARTIN LUTHER KING WERE WORSE, AND OF COURSE, 9/11. STILL, I HAVE A DISTURBING FEELING ON MY BACK LIKE A SLOW CRAWLING OF SOMETHING HIDEOUS – A TARANTULA, MAYBE. I’M BEING A LITTLE DRAMATIC HERE? MAYBE, BUT THAT SENSATION IS ACTUALLY THERE. IT’S LIKE WHEN YOU’RE WALKING ON A CITY STREET AND YOU HEAR SOFT FOOTSTEPS CLOSE BEHIND YOU. I’M AFRAID MR. TRUMP IS TOTALLY WITHOUT SCRUPLES, AND SUBJECT TO SUFFICIENT FURY TO DO SOMETHING HORRIBLE. CONGRESS MUST ACT.

https://www.usatoday.com/story/news/nation/2019/02/08/presidential-declaration-national-emergency-donald-trump-border-wall-congress-oversight/2784488002/
How congressional Democrats could fight a Trump wall national emergency declaration
Gregory Korte, USA TODAY Published 11:36 a.m. ET Feb. 8, 2019 | Updated 4:47 p.m. ET Feb. 14, 2019

PHOTOGRAPH – PRESIDENT President Donald Trump says he will declare a national emergency to build his U.S.-Mexico border wall if there is no deal with Congress by mid-February. (Jan. 25) AP

Congress has never voted to overturn a presidential emergency in 44 years. But in 2005, it threatened to – and the president blinked.

After Hurricane Katrina devastated the Gulf Coast in 2005, President George W. Bush declared a national emergency to do something Republicans had long wanted to do anyway: He suspended prevailing wage laws on federal contracts to rebuild the region.

Labor unions protested. Democrats signed on to a bill to rewrite the law. Even dozens of moderate Republicans asked Bush to reconsider.

But then a single congressman used a parliamentary maneuver – never attempted before or since – to challenge the underpinnings of the national emergency itself.

Bush backed down without even a vote.

President George W. Bush speaks at a cabinet meeting at the White House in the aftermath of Hurricane Katrina on September 6, 2005.

President George W. Bush speaks at a cabinet meeting at the White House in the aftermath of Hurricane Katrina on September 6, 2005. (Photo11: Chip Somodevilla, Getty Images)

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The largely forgotten story of Bush's capitulation explains why Republicans have advised President Donald Trump against bypassing Congress and invoking a national emergency to build a wall along the Mexican border.

In addition to raising legal questions – such a move would inevitably be challenged in court – a declaration would invite Congress to exercise its long-dormant power to revoke national emergencies.

And all it would take is one member of Congress to force the issue.

Rep. George Miller, D-Calif., in 2009. (Photo11: Harry Hamburg, AP)

In 2005, that member was Rep. George Miller, a California lawmaker who was the top Democrat on the House Education and Labor Committee.

Calling Bush's decision "callous and misguided," Miller's first move was to try to amend the Davis-Bacon Act of 1931. That law sets the prevailing wage for federal contracts, but allows the president to grant waivers in times of national emergency.

But Democrats were in the minority, and while some Republicans were grumbling about Bush's move, they were unwilling to sign on to Miller's legislation – meaning it would never get to the House floor.

So Miller changed tack. He dug up the National Emergencies Act of 1975, one in a series of post-Watergate reforms. It allowed Congress to terminate a presidential emergency by simple majority vote.

Republican leadership couldn't block the vote: Under the law, they had 15 business days to bring it out of committee and to the floor.

Miller introduced his resolution on Oct. 20, and a vote was scheduled for Nov. 8.

On Oct. 26, the Bush administration announced it would terminate the emergency effective Nov. 7.

Bush Labor Secretary Elaine Chao said the administration had re-examined the issue and discovered that it wouldn't save as much money as initially forecast. (Chao is now Trump's transportation secretary, and her husband is Republican Senate Majority Leader Mitch McConnell.)

Miller declared victory.

"Let me be clear," he told The New York Times. "The president is backing down today only because he had no other choice."

Mark Zuckerman, who was the Democratic staff director of the House Education and Labor Committee at the time, says all it took was the threat of a vote.

"It can be revealing when you make people vote on something," he says.

"We thought it was an unacceptable and inappropriate use of emergency powers, but we also wanted to check to see if there was really Republican support for something like this. I think it’s part of the genius of the procedure is that it tests sentiment on Capitol Hill for your unilateral idea."

The original intent of the 1975 law was to allow Congress a block a presidential emergency by simple majority vote. But in 1983, the U.S. Supreme Court struck down the legislative veto. So now, any joint resolution by Congress to terminate an emergency can be vetoed by the president.

And McConnell said Trump could do exactly that.

"The president could win anyway by vetoing the bill and then trying to get enough votes to sustain it, so may ultimately be able to prevail on the national emergency alternative," McConnell told Fox News on Tuesday.

Still, some GOP senators are already expressing discomfort over such a vote, and have asked Trump this week – both publicly and privately – not to put them in that position.

"It's not my preferred choice," said Sen. John Kennedy, R-La.

"I hope he doesn't do it," said. Sen. John Cornyn, R-Texas.

"It might be a – you know – a tough vote to win here in the Senate," said Sen. John Thune, R-S.D.

One concern is the precedent such a declaration would set.

"I think most Republicans will tell you that we really would like to find a way to avoid that type of a discussion if at all possible because this goes beyond just this president," Sen. Mike Rounds, R-S.D., told CNN on Wednesday. "This goes on to future presidents and what they might decide to declare an emergency for."

Special report: America's perpetual state of emergency, from Jimmy Carter to Barack Obama

That was exactly what Congress expected when it voted overwhelmingly to pass the National Emergencies Act.

The law called for every emergency to be reviewed – and possibly voted on – every six months. But in 44 years, presidents have declared at least 60 national emergencies without Congress taking a single vote.

Thirty-one of those emergencies remain in place today.

More: A permanent emergency: Trump becomes third president to renew extraordinary post-9/11 powers

The use of emergency powers became so routine that the Obama administration said in 2015 that they were mere formalities – despite their boilerplate language that they're in response to an "unusual and extraordinary threat to the national security." And presidents seem to have ignored requirements that they update Congress on the costs of those emergencies.

More: The Obama White House claimed that national emergencies were just formalities

Liza Goitein, director of the national security program at the Brennan Center for Justice, has advocated reforms to presidential emergency powers.

"I think Congress has woken up to the idea that the process for declaring emergencies is too permissive," she says.

"This isn’t going to look good if the Republican Senate is voting to curtail the president's power. It’s going to split Republicans and force Republicans to take a vote they don’t want to take – and it may not go Trump's way."

Trump did not mention the national emergency in his State of the Union address Tuesday, but says he's still considering it. A national emergency could allow him to transfer unspent military construction funds toward a wall.

"I don't like to take things off the table," Trump told CBS in a pre-Super Bowl interview. "It's that alternative. It's national emergency, it's other things and, you know, there have been plenty national emergencies called."


Trump declares emergency to free up money for border wall
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White House: Trump move provides $8B for 234 miles of border barrier
usatoday.com2 hours ago
National emergencies are common; declaring one for a border wall is not
usatoday.com5 hours ago
5 things you need to know Friday
usatoday.com10 hours ago


THE TRUMP WAY OF DOING BUSINESS, PUSH AND IF THE DEMOCRATS DON’T PUSH BACK, PUSH AGAIN TWICE AS HARD. HE’S SO MUCH LIKE HIS FONDEST PAL PUTIN.

https://www.vox.com/2019/2/15/18225359/trump-speech-national-emergencies-act-border
Trump declared a national emergency at the border. I asked 11 experts if it’s legal.
Spoiler alert: probably not.
By Sean Illing@seanillingsean.illing@vox.com Feb 15, 2019, 11:30am EST

PHOTOGRAPH -- President Trump declared a national emergency to free up federal funding to build a wall along the southern border at he White House, on February 15, 2019, Chip Somodevilla/Getty Images

President Donald Trump just declared a national emergency in order to bypass Congress and fund his wall on the southern border.

The president has hinted for several weeks that this option was on the table, but it was never clear if he would actually go through with it, in part because it sets a dangerous precedent and will almost certainly be challenged in the courts.

But the president failed to strike a deal with Democrats that would give him the $5 billion he wanted to build the wall, so here we are. Now there are at least two pressing legal questions: Does Trump have the constitutional authority to do this? And will his declaration survive the challenge it will likely receive in the courts?

I reached out to 11 legal experts and asked them to assess the president’s prospects. The consensus seems to be that while there is enough ambiguity in the law to permit Trump to declare an emergency, his decision to circumvent Congress and use the military to build a wall will very likely lose in court.

Their responses, lightly edited for clarity, are below.

Jessica Levinson, law professor, Loyola Law School
Can President Trump declare a national emergency? Absolutely. Will it get him what he wants? It should not. And it probably will not.

Under the National Emergencies Act of 1976, presidents have broad authority to declare a national emergency. But that is merely the beginning of the inquiry. Once President Trump declares a national emergency, what is the next step? He should point to specific statutory authority to get the resources and funds he needs to build a wall.

There are two statutes that he is most likely to use. One allows the secretary of defense to start a military program if it is needed to support armed forces. The problem here is that there is no real evidence that the armed forces need a wall to support them. Instead, the reverse may be true, you need armed forces to build a wall. The second statute allows the secretary of the Army to direct troops and resources “that are essential to the national defense.” Here, again, we have a problem. There is scant evidence to indicate that a border wall is in fact essential to the national defense.

As in so many of the Trump administration’s policies, we are relying on federal judges to tell us when the president has overreached.

Renato Mariotti, former federal prosecutor, 2007 to 2016, and host of the On Topic podcast

Trump’s emergency declaration is an attempt to circumvent one of the most important constitutional checks on presidential power — the “power of the purse,” to raise and spend money, which is given to Congress under the US Constitution. To do so, Trump will make use of sweeping laws passed by Congress that permit the president to declare a national emergency and for the secretary of the Army to apply funds and personnel to construct “projects that are essential to the national defense” and the secretary of defense to use funds to “undertake military construction projects” necessary to support the use of the armed forces if the emergency requires use of the armed forces.

Although there is strong reason to believe that the situation at the border is not a “national emergency,” the term “emergency” is not defined in the statute, so the focus of a legal challenge will be that our border security does not “require use of the armed forces” and that the construction of a border wall is not “essential to the national defense.”

Our border defense is primarily a civilian, not a military, operation. But the main reason a challenge to this move will likely succeed is that the statutes, as applied to this case, violate the US Constitution. Courts will see what lawmakers in both parties have publicly pointed out — that this action opens the door to presidents spending funds on a variety of non-emergency programs without congressional approval.

Given that our founders believed that it was important to give Congress the power to control how our funds are raised and spent, this challenge will likely be successful.

“THE REFUSAL OF CONGRESS TO FUND A PRESIDENTIAL VANITY PROJECT IS NOT AN EMERGENCY” —CIARA TORRES-SPELLISCY
Jed Shugerman, law professor, Fordham University
For those wondering about Trump invoking a national emergency: Remember he also ordered [Robert] Mueller’s firing twice (allegedly). His lawyers declined. Trump can’t do any law stuff on his own. How much can Stephen Miller do by himself?

Even then, litigation will run out the clock, even if the plaintiffs challenging the wall don’t ultimately win on the merits. There are many claims that should be valid enough to yield injunctions delaying construction and spending. First, there will be litigation by members of Congress, which will turn on the complexities of standing. Second, if Trump shifts funds from other appropriated projects to the wall, some contractors losing funds arguably have standing to challenge the emergency’s validity. Third, most of the wall would be built on private property, and property owners can challenge the validity of this “public use” under eminent domain.

Even if they lose in the end on the law, it seems likely to me that Trump will run out of time. And I think even the wall’s most ardent supporters understand Trump wasted two years of GOP control of Congress and wasted America’s longest government shutdown to be left with this dead-end backup plan.

Keith Whittington, politics professor, Princeton University
Unfortunately, Trump has a more credible claim than he should to the necessary legal authority to bypass Congress and fund some wall construction, because both Congress and the courts have been very generous to past presidents. Congress has delegated substantial statutory authority to the president to declare emergencies and move already appropriated funds to new military construction projects.

The courts have generally taken a deferential approach to evaluating how the president makes use of such delegated authority and have not required Congress to be more specific. If Congress wants to give the president lots of discretion to do things — including foolish and expensive things — on his own initiative, the courts have been willing to let Congress do that. Just because executive branch lawyers ought to be embarrassed to sign off on border wall construction as a valid use of the president’s national emergency authority does not mean that the courts will actually be willing to say that this does not pass the laugh test.

The good news is that Congress has the power to start clawing back that delegated authority, if the members can actually agree among themselves that leaving Trump with so many legal toys to play with is probably a bad idea. Tying the hands of the president does reduce the government’s flexibility in the case of a genuine emergency, but it would be a good thing if Congress learned to take a more active role in calibrating just how much discretion they want to trust each president with having.

Peter Shane, law professor, Ohio State University
If the president declares a national emergency, his order will have to specify the precise statutory powers he proposes that he or other officers in the executive branch will be exercising in response to that emergency. Judges may be reluctant to second-guess the president in initially issuing the declaration; the National Emergencies Act does not actually provide a definition of “national emergency,” and it might be tough to identify a party so injured just by the issuance of the order that they have standing to sue.

On the other hand, once executive branch agencies start using the statutory authorities the president has designated in his declaration, they will be subject to lawsuits. For example, the Military Construction Codification Act gives the secretary of defense authority in a national emergency “that requires use of the armed forces” to reallocate funds “to undertake military construction projects ... that are necessary to support such use of the armed forces.”

It is not clear, however, whether the armed forces may lawfully be used to build the wall. It is not clear that building the wall is a project “necessary to support” the armed forces building the wall. And it is not clear that the wall would be a military installation of the kind that fits within the statutory definition of “military construction.”

Whether or not the president’s declaration is legal, plaintiffs could directly challenge Defense Department action they would argue is in violation of the Military Construction Codification Act.

Ciara Torres-Spelliscy, law professor, Stetson University
At a moment like this, it may be helpful to go back to first principles, one of which is that America has a president and not a king. Part of being a president and not a king is abiding by the Constitution, which grants the power of the purse to the Congress. President Trump has repeatedly asked Congress (both under unified Republican control and under split Democratic/Republican control) for full funding for his wall at over $5 billion. The Congress said no repeatedly. The refusal of Congress to fund a presidential vanity project is not an emergency.

There are several Supreme Court cases that speak to the limits of presidential power. For example, in Youngstown Steel, President Truman, who was facing a more acute emergency of stoppage of steel production during the Korean War, wanted to seize the steel mills. The Supreme Court rebuffed Truman and told him that even this wartime emergency did not empower him to seize the mills.

And in the Line Item Veto case, the Supreme Court noted that President Clinton could not line-edit legislation. The Court held that the president only had the power to veto or approval full pieces of legislation. What President Trump wants to do with an emergency declaration to reallocate money to his wall seems to fall within these two cases as a constitutionally prohibited act for an American president.

Stephen Legomsky, law professor, Washington University
The purpose of the National Emergency Act was not to authorize presidential declarations of emergency; it was to limit them. The statute, passed in 1976, was specifically designed to curb what Congress saw as excessive and unjustifiable presidential usurpations of congressional powers. The very first sentence begins, “An Act to terminate certain authorities with respect to national emergencies still in effect …” [my emphasis].

This much is crystal clear: There is no national security emergency at the southern border. Illegal entries today are a small fraction of what they were 20 years ago, and the total size of the resulting undocumented population has stayed flat for at least the past 10 years. In contrast, there is indeed a humanitarian crisis, but it’s the one that the Trump administration has unilaterally created through its systematic assault on the right to apply for asylum.

Whether the courts will invalidate the declaration of national emergency is a close question, however. On the one hand, the Supreme Court in Trump v. Hawaii refused to review a presidential claim of a national security threat justifying the Muslim ban. On the other hand, the courts might well fear the implications of a precedent of unquestioning deference to “emergency” declarations. Unlike the fictitious border emergency claimed by President Trump, a future progressive president could make a serious case for a green emergency, a democracy emergency, a gun safety emergency, or a civil rights emergency.

Douglas Spencer, law professor, University of Connecticut
The root of this controversy is the lack of limits on executive power in the Constitution. Article II simply states, “The executive power shall be vested in a President of the United States of America.” The Constitution does not specify what executive power is, or what it permits the president to do. The Constitution does permit Congress to override the president, if it can muster enough votes.

As a general matter, then, courts are very deferential to executive action when it is endorsed by Congress. On the other hand, courts will typically invalidate a president’s actions if Congress has expressly prohibited them. The controversy in this case is that Congress has explicitly delegated authority to the president to declare emergencies. On the other hand, yesterday’s compromise appropriation bill explicitly rejected spending more than $1.375 billion on physical barriers at the border.

As with many of Trump’s challenged actions, the controversy is as much his violation of constitutional norms as it is constitutional rules. This reflects the limits and ambiguity of our constitution as much as the limits of President Trump’s understanding of it. In the specific case of Trump’s emergency declaration, there are strong arguments in favor of deference to the president (even if one disagrees with his premise and his policy goals), and there are strong arguments in favor of limiting the president from end-running the legislative process.

Because there is no clear-cut answer, I would caution against reading too much into lower court rulings on the matter, no matter how they come out. Any judgments will certainly be appealed to the Supreme Court. By that point, Congress may have rendered the issue moot by overriding the president and/or voters may have rendered the issue moot in the 2020 election.

Ric Simmons, law professor, Ohio State University
The short answer is that the president has a non-frivolous claim that he has the power to declare an emergency and use military funds to build a wall under the 1978 National Emergencies Act, but his authority to do so can be challenged on multiple grounds.

The first question is whether there actually is an “emergency” at the southern border. While this designation seems suspect to some, since there has not been any real change in the situation at the border for the past few years or even decades, courts will almost certainly defer to any president who declares an emergency. (In fact, in the dozens of emergencies that presidents have declared under this law, the Supreme Court has never overruled the president and held that an emergency does not exist.)

The second question is that under the Constitution, the Congress has the exclusive right to control spending, so even under a national emergency, the president has to find a statute in which Congress authorizes him to spend this money. 10 USC Sec. 2909 allows the president in case of emergency to undertake military projects that are “necessary to support such use of the armed forces.” It is not clear that the wall is necessary to “support” the military, since the military does not have domestic law enforcement powers to patrol the border against illegal immigration.

33 USC Section 2293 allows the president in case of emergency to divert funds from one project to the other in order to work on an “authorized civil work, military construction, or civil defense project that are essential to the national defense.” The problem here is that the wall is not “authorized” by any law, and furthermore, it is a stretch to say that the project is “essential to the national defense.”

Most reasonable readings of these statutes would come to the conclusion that the president does not have the authority to divert funding to the wall, but once again, the question is how much deference the courts will give to the president in this context.

“THIS MUCH IS CRYSTAL CLEAR: THERE IS NO NATIONAL SECURITY EMERGENCY AT THE SOUTHERN BORDER” —STEPHEN LEGOMSKY

Peter Margulies, law professor, Roger Williams University School of Law
Judging President Trump’s emergency declaration is all about perspective. The law says that the president can take funds from current projects if the situation “requires” the use of US armed forces. The entry of unarmed Central American refugees — many of them women and children — at the southern border doesn’t “require” a military response.

Under US law, immigration control is a law enforcement job performed by ICE and the Border Patrol, not a task for the military. In fact, since it’s a law enforcement job, US law prohibits a direct military role. A lead military role in law enforcement heralds an emerging dictatorship — that’s not a signal that Congress or the framers of our Constitution wished to send.

At the border today, the military is strictly a supporting player, providing ICE with technology or rolling out miles of razor wire. Because the Defense Department views rolling out razor wire as part of military “training,” using our armed forces for such supporting tasks is not illegal. But civilian personnel could perform these tasks just as readily. And while there’s money in the Pentagon budget for training troops, Congress has not budgeted money for a massive public works project like building President Trump’s wall. Congress has budgeted for projects to be built by the Army Corps of Engineers; by declaring an emergency, President Trump would try to use the military’s modest border presence to divert funds from those other needed projects.

But without a clear need for our military, there’s no legal “hook” for Trump’s emergency declaration: The situation at the border “requires” law enforcement, asylum officers, and immigration judges, not soldiers’ purely supporting role. On the other hand, the Supreme Court recently deferred to President Trump on the travel ban and rarely second-guesses the president’s responses on foreign relations.

So a lot turns on whether the Court will see Trump’s emergency declaration as repackaging ordinary law enforcement to get around Congress’s budget limits, or as a legitimate national security move.

Ilya Somin, law professor, George Mason University
This plan is illegal, and would set a dangerous precedent if it succeeds. Article I of the Constitution mandates that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Only Congress has the power to make such laws. This vital rule ensures no one person can seize control of the nation’s public funds.

To get around Congress, Trump seeks to use emergency powers. Under the poorly structured National Emergencies Act of 1976, Trump may indeed be able to declare an emergency at the border, even though there is no genuine crisis there. But it does not follow that he can therefore appropriate money for the wall. The NEA does not give him unlimited authority, but only a specific set of powers. None of them are broad enough to justify spending money on a border wall.

Some cite 10 USC 2808 and 33 USC 2293 as possible sources of authority. Yet neither grants it. Section 2808 states that if the president declares a “national emergency” that “requires the use of the armed forces,” he can use certain military funds to “undertake military construction projects … that are necessary to support such use of the armed forces.” There is no emergency caused by undocumented immigration that plausibly “requires the use of the armed forces,” nor is a wall “necessary to support such use.” Indeed, the law generally forbids the use of the armed forces for domestic law enforcement, includes immigration enforcement. Section 2293 likewise only applies to a war or emergency that “requires or may require use of the Armed Forces.”

Even if Trump can use an emergency declaration to get the money he wants, that is not enough to build the wall. He also needs the authority to use eminent domain to seize land from numerous unwilling owners. Such authority must be expressly authorized by the legislature; it cannot simply be inferred. And there is no such clear authorization here.

Trump’s attempt to use emergency powers is virtually certain to be challenged in court. While he deserves to lose, it is possible he could prevail, in part because courts often give the president undue deference on immigration and national security issues.

Should he win, it would set a very dangerous precedent. Future presidents, too, could use it to appropriate money and seize private property without congressional authorization, especially if there is some national security pretext for doing so. Conservatives who cheer Trump on today may not be so thrilled when the next Democratic president uses the same sort of power grab to spend money and seize property to promote liberal policies. Americans across the political spectrum have an interest in ensuring that no one person has such sweeping power over our tax money and property rights.

NEXT UP IN POLITICS & POLICY
.... Trump’s wall won’t do anything about drugs
.... Trump has divided conservatives with the border security deal and national emergency declaration
..... “This is a constitutional crisis”: a legal expert on Trump’s emergency declaration
.... Why Trump thinks a national emergency will get him his border wall
..... Trump just declared a national emergency at the border
.... Trump keeps highlighting “angel moms” to make the case for his immigration agenda


EXPERT DECLARES THIS TRUMP-INITIATED SITUATION A CONSTITUTIONAL CRISIS. SEE ALSO HER TWEETS ON THE SUBJECT.

https://www.vox.com/policy-and-politics/2019/2/15/18226315/trump-emergency-national-wall-border-illegal
“This is a constitutional crisis”: a legal expert on Trump’s emergency declaration
Seems bad!
By Zack Beauchamp@zackbeauchampzack@vox.com Feb 15, 2019, 11:50am EST

On Friday morning, President Donald Trump announced that he would be declaring a state of emergency on the US-Mexico border and unilaterally appropriating funds to pay for his border wall.

It’s not clear if he can actually do that: The Constitution gives Congress, not the president, the ultimate power to appropriate money. The president legally has the power to declare emergencies and respond, but can he do that in a situation where Congress has explicitly declined to fund the president’s wall?

According to Elizabeth Goitein, an expert on national security law, the answer is that he can’t — and Trump’s attempt to do so constitutes a “constitutional crisis.”

Goitein is the co-director of the Liberty and National Security Program at the Brennan Center for Justice, a nonpartisan but liberal-leaning legal nonprofit. Her research focuses on balancing national security and constitutional rights, which makes her pretty well-positioned to evaluate the president’s claim. In a series of tweets, she made the case that declaring an emergency on the border constitutes a power grab that directly threatens the constitutional order.

Here’s the argument, which focuses not only on Trump but on the underlying laws that enable him to declare an emergency in the first place:


Elizabeth Goitein
@LizaGoitein
Today, the President of the United States will declare a fictitious national emergency for the sole purpose of giving himself powers Congress explicitly refused to provide. 1/13

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11:11 AM - Feb 15, 2019
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Elizabeth Goitein
@LizaGoitein
Replying to @LizaGoitein
This is a constitutional crisis. Article I expressly forbids spending money except as appropriated by Congress. Congress had repeatedly refused to provide funds to build the wall. 2/13

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Elizabeth Goitein
@LizaGoitein
Replying to @LizaGoitein
As I wrote in @TheAtlantic, emergency powers are not, and were never intended to be, a constitutional workaround for a president who cannot bend Congress to his will. 3/13 https://www.theatlantic.com/ideas/archive/2019/01/trump-has-no-case-national-emergency/581356/?utm_source=twb …

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Trump Is Destroying His Own Case for a National Emergency
By waiting for Congress to act, the president is undermining the legal basis for any declaration.

theatlantic.com
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Elizabeth Goitein
@LizaGoitein
Replying to @LizaGoitein
Emergency powers are designed to give the president access to standby authorities, passed by Congress in advance, in situations where Congress has no time to act. 4/13

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Elizabeth Goitein
@LizaGoitein
Replying to @LizaGoitein
If Congress *does* have time to act, then there’s no justification for bypassing the ordinary legislative process. And when that legislative process yields a clear answer, as it did here, the Constitution commands the president to respect that answer. 5/13

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Elizabeth Goitein
@LizaGoitein
Replying to @LizaGoitein
I hope the courts do the right thing and put an end to this abuse of power. But whether they do or not, it’s time for Congress to revisit the current legal system for emergency powers. 6/13

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Elizabeth Goitein
@LizaGoitein
Replying to @LizaGoitein
Under the National Emergencies Act, it’s far too easy for a president to declare emergencies where none exist—and far too difficult for Congress to put a stop to them. There’s no definition of “national emergency” and no limits on how many times a president can renew them. 7/13

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Elizabeth Goitein
@LizaGoitein
Replying to @LizaGoitein
If Congress believes the president is misusing emergency powers, its only remedy is to pass a law that the president has to sign. In practice, that means Congress needs a veto-proof majority. 8/13

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Elizabeth Goitein
@LizaGoitein
Replying to @LizaGoitein
Once an emergency is declared, the president has access to 123 special provisions of law that give him extraordinary powers—as we found in our research, available here: http://www.brennancenter.org/analysis/emergency-powers … @BrennanCenter 9/13

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A Guide to Emergency Powers and Their Use
A Guide to Emergency Powers and Their Use

brennancenter.org* [-- SEE BELOW]
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Elizabeth Goitein
@LizaGoitein
Replying to @LizaGoitein
This system invites abuse. Presidents need broad discretion to decide what constitutes an emergency, but that discretion shouldn’t be unlimited. Some basic, common-sense criteria are needed. 10/13
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Elizabeth Goitein
@LizaGoitein
Replying to @LizaGoitein
At a minimum, an “emergency” should involve a significant change in factual circumstances that poses an imminent threat to public safety or other important national interests. That would still give the president plenty of wiggle room, without allowing fake emergencies. 11/13
11:11 AM - Feb 15, 2019
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Elizabeth Goitein
@LizaGoitein
Replying to @LizaGoitein
And the president should not be able to renew states of emergency indefinitely. After a short period (I agree with @steve_vladeck that 30 days should be sufficient), the emergency should expire unless *Congress* renews it. 12/13
11:11 AM - Feb 15, 2019
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Elizabeth Goitein
@LizaGoitein
Replying to @LizaGoitein
Congress should act *now* to try to block this abuse of power, and the courts should play their constitutional role. But unless we want to see more of this kind of abuse in the future, we need to get serious about National Emergencies Act reform. 13/13
11:11 AM - Feb 15, 2019
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One thing is practically certain: Goitein’s arguments will be tested in court. Someone will try to sue Trump to stop the emergency declaration; House Democrats already have a plan for a legal challenge, per the Washington Post. Then it’ll be up to the courts to decide if she’s right.


FROM THE BRENNAN CENTER ON THE LAW CONCERNING PRESIDENT’S POWERS. LOOK AT THIS ARTICLE CLOSELY. SEVERAL MONTHS AGO THE PRESIDENT TEASINGLY DROPPED THE WORD “MOBS” IN REFERENCE TO DEMOCRATS, WITH NO OBVIOUS LINK TO ANYTHING ELSE I HAD SEEN. HERE IT IS IN THIS ARTICLE AGAIN. SEE THE SECOND PARAGRAPH “VIOLENT MOBS,” AND THEN FARTHER ON IN THE ARTICLE, “LIBERAL MOBS.” CONGRESS NEEDS TO START IMPEACHMENT PROCEEDINGS AS SOON AS THE MUELLER PROBE FINISHES.

ATLANTIC – GOITEIN – THE CURRENT ISSUE

https://www.theatlantic.com/magazine/archive/2019/01/presidential-emergency-powers/576418/
The Alarming Scope of the President's Emergency Powers
From seizing control of the internet to declaring martial law, President Trump may legally do all kinds of extraordinary things.
ELIZABETH GOITEIN JANUARY/FEBRUARY 2019 ISSUE

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.”

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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.

The moment the president declares a “national emergency”—a decision that is entirely within his discretion—he is able to set aside many of the legal limits on his authority.

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.

FROM OUR JANUARY/FEBRUARY 2019 ISSUE

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.

PHOTOGRAPH OF HAND SIGNING A DOCUMENT, Pablo Martinez Monsivais / AP

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.

The president could seize control of U.S. internet traffic, impeding access to certain websites and ensuring that internet searches return pro-Trump content as the top results.

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.

Video: Trump’s Emergency Powers Are “Ripe for Abuse”

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.

Americans might be surprised to learn just how readily the president can deploy troops inside the United States.

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.

PHOTOGRAPH – PRESIDENT HOLDING UP SIGNED DOCUMENT Mandel Ngan / AFP / Getty

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.

The Voorhes
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.

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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 .* 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.

This article appears in the January/February 2019 print edition with the headline “In Case of Emergency.”

IPAWS
https://www.fema.gov/emergency-alert-test
The IPAWS National Test
FEMA Administrator, Brock Long, appearing in a Public Service Announcement (PSA) about the upcoming Integrated Public Alert Warning System (IPAWS) Emergency Alert System (EAS)/Wireless Emergency Alert (WEA) national test on October 3, 2018

IPAWS National Test PSA
Public Service Announcement with FEMA

IPAWS National Test of the Wireless Emergency Alerts (WEA) and Emergency Alert System (EAS)

The National EAS and WEA test will be held on the backup date of October 3, 2018, beginning at 2:18 p.m. EDT.

The Federal Emergency Management Agency (FEMA), in coordination with the Federal Communications Commission (FCC), will conduct a nationwide test of the Wireless Emergency Alerts (WEA) and Emergency Alert System (EAS) on the backup date of October 3, 2018 due to ongoing response efforts to Hurricane Florence.

The WEA portion of the test commences at 2:18 p.m. EDT, and the EAS portion follows at 2:20 p.m. EDT. The test will assess the operational readiness of the infrastructure for distribution of a national message and determine whether improvements are needed.

The WEA test message will be sent to cell phones that are connected to wireless providers participating in WEA. This is the fourth EAS nationwide test and the first national WEA test. Previous EAS national tests were conducted in November 2011, September 2016, and September 2017 in collaboration with the FCC, broadcasters, and emergency management officials in recognition of FEMA’s National Preparedness Month.

Cell towers will broadcast the WEA test for approximately 30 minutes beginning at 2:18 p.m. EDT. During this time, WEA compatible cell phones that are switched on, within range of an active cell tower, and whose wireless provider participates in WEA should be capable of receiving the test message. Some cell phones will not receive the test message, and cell phones should only receive the message once. The WEA test message will have a header that reads "Presidential Alert" and text that says:

“THIS IS A TEST of the National Wireless Emergency Alert System. No action is needed.”

The WEA system is used to warn the public about dangerous weather, missing children, and other critical situations through alerts on cell phones. The national test will use the same special tone and vibration as with all WEA messages (i.e. Tornado Warning, AMBER Alert). Users cannot opt out of receiving the WEA test.

. . . . The EAS is based upon the War Powers Act provision of the Communications Act of 1934, which provides for Presidential access to commercial communications during “a state of public peril or disaster or other national emergency.” For WEA, the Warning, Alert, and Response Network (WARN) Act of 2006 provides that subscribers may opt out of receiving any wireless alerts “other than an alert issued by the President,” and that wireless alerting service should allow wireless subscribers the capability of opting out of receiving WEA alerts, other than an alert issued at the direction of the President and/or his/her designee.

The test was originally planned for September 20, 2018 but has been postponed until October 3, 2018 due to ongoing response efforts to Hurricane Florence.