Defend Democracy: National States of Emergency, Part 1

The recent declaration of a national state of emergency by U.S. President Trump exploits a weak point of democratic governance in electoral nation-states. That weakness has often been leveraged by national leaders to transform democracies into autocratic forms of governance.

Some critics, notably Carl Schmidt and Giorgio Agamben, have argued that the popular will in electoral democracies is always at risk of being overturned by executive decision. This argument, which some call the state of exception, is that what appear to be governments responsive to the will of the citizenry are subject to autocratic mandated decisions on exceptional occasions.

State of emergencies are just such occasions where the will of the executive is permitted to override the public will. Many nation-states have formal regulations governing declarations of a state of emergency, such as the U.S. National Emergencies Act. But any use of this mechanism puts democracy at risk.

A declaration of a state of emergency is one of the most common tools that elected leaders us to violate the popular will and install a state of exception. Through such declarations, executives give themselves substantially expanded powers that often are not balanced by other governmental bodies. In the case of the President Trump’s declaration, for example, one analysis suggests that in the simple verbal declaration the President gains 123 powers beyond those given him or her by the constitution.

But the misuse of emergency powers is a standard gambit among leaders attempting to consolidate power. Authoritarian leaders that Trump has openly admired — including the Philippines’ Rodrigo Duterte and Turkey’s Recep Tayyip Erdoğan — have gone this route. This misuse will be discussed further in next month's "Defending Democracy" post.

The executive branch has a variety of powers that do not require a declaration of emergency, such as "laws that allow the president to deploy troops inside the country to subdue domestic unrest." 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.  

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.

The National Emergencies Act in 1976 gives the president the complete discretion to issue an emergency declaration — however, the Brennan Center notes that this law has been a complete failure, since Congress has pursued none of the limits to the law, such as regular review of their provisions and expiration of emergency declarations after 6 months. 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. These laws address a broad range of matters, and 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.

President George W. Bush took matters a giant step further after 9/11, when he issued Executive Order 13224, International Emergency Economic Powers Act, or IEEPA. 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.

Under this Executive Order, the president could determine that any American inside the U.S. who offers material support to the asylum seekers — or, for that matter, to undocumented immigrants inside the United States — poses “an unusual and extraordinary threat” to national security, and authorize the Treasury Department to take action against them.  

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

States of emergency grant the executive branch considerable military powers, and 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.” 

As the Brennan Center has noted, the potential misuses of the Insurrection 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.

The Brennan Center has also outlined a chilling scenario of how Trump can use emergency powers to win an election, even if he follows the law. 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. 

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,” Justice Jackson wrote. “We may also suspect that they suspected that emergency powers would tend to kindle emergencies.”  

When it comes to President Trump, who clearly loves to play with fire, allowing him to make the declaration may have been more than giving him fuel for setting fires. It may have been a step that damages democracy in the U.S. irreparably.

President Trump’s triumph was distracting the nation sufficiently that he could declare the state of emergency without the citizenry taking to the streets. But now that he has the emergency powers at his disposal, it will be very difficult to object to many possible behaviors. Who knows if electoral democracy in the U.S. will survive this emergency. Time will tell.