01/10/2019 - What can the president do during a national emergency?


Sometimes, it feels like we’re watching Donald Trump discover the powers of the presidency.

Remember those few weeks last year when he pardoned a bunch of people?

Or when he decided to throw out decades of diplomacy and just go talk to Kim Jong-Un.

This week, it feels like we’re watching him discover he has a superpower. A national emergency.


CLIP: I have the absolute right to declare a national emergency. The lawyers have so advised me. I'm not prepared to do that yet. But if I have to, I will. I have no doubt about it. I will.

This morning the president spoke to reporters before heading to the border.

CLIP: Other presidents have used it. Some fairly often. I have the absolute right to declare a national emergency. I haven't done it yet. I may do it. If this doesn't work out, probably I will do it. I would almost say definitely.


With Democrats holding their ground on the border wall, the state of emergency maybe, definitely looks like President Trump’s last option.

CLIP: This is a national emergency.


So how many superpowers does he get from declaring one?

According to the Brennan Center for Justice, there are something like a hundred and thirty-six of them.

LIZA: And they really run the gamut in terms of the subject matter they address. You know they are in all possible areas of government whether it's agriculture or public contracts or transportation or imports and exports .

SEAN: Liza Goitein is a director at the Brennan Center.

LIZA: It's pretty much anything you can think of. And in terms of the scope they really range from the trivial, I mean laws that seem so mundane that it's just hard to imagine how they could be helpful, to some just jaw-dropping powers that just don't even seem consistent with sort of modern notions of limited government.

SEAN: Like what?

LIZA: There ar
e three powers that keep me up at night the most. There is a law that allows the president to takeover or shut down certain communications facilities when he proclaims a threat of war.

SEAN: Like the Internet?

LIZA: Potentially.
SEAN: Hmm.
LIZA: I mean that's the part that keeps me up at night.
The second is a law that allows the president to take certain economic actions against people such as freezing their bank accounts or prohibiting financial transactions with them. 
SEAN: Okay.
the third is a law that allows the president to deploy the military to act as a kind of domestic police force in certain circumstances.

SEAN: So they all sound worthy of further discussion. Let's let's do em one by one. So we've got communications slash the Internet, the economy, and then this military police situation which let's save the scariest one for last, maybe. So why don’t we start with communications slash the Internet. What exactly can the president do there?

LIZA: There’s a law that Congress amended in 1942 that allows the president to takeover or shut down facilities for wire communication if he proclaims a threat of war.


LIZA: You know this is World War II and wire communications were telephone calls and telegraphs and telegrams and that was it. And most American households actually did not have a telephone back then. So it was invoked during World War II. And it has not been used since then


LIZA: But if if a president were to want to use it today, you know, wire communications are a very very different ballgame than they were in 1942 and conceivably wired communications could be interpreted to include the Internet. And if if it were interpreted that way that would allow the president to assume control of Internet traffic inside the United States.

SEAN: Which is tantamount to controlling what? All of our phones?


LIZA: It's also blocking access to websites or intercepting communications and emails. It would be the U.S. government exerting direct control over the Internet.


SEAN: So taking over the Internet as we know it. How about the economy? What could he do there?

LIZA: There's a law called the International Emergency Economic Powers Act. We'll just call it IEEPA.




LIZA: Because it's easier and kind of cute.
SEAN: Yeah.
that law allows the president to declare that there is an extreme and unusual threat to national security or foreign policy or the economy that emanates at least substantially from overseas. And then there are all kinds of economic actions specified in the law he can take.

SEAN: Hmm.
LIZA: Things like freezing assets things like prohibiting any financial transactions with an entity or a person that is designated as being part of that threat.
 So this law has been used primarily over the years to impose sanctions of various kinds against foreign actors. But the law is broad enough to allow the president to actually target Americans.If there is an American that the president decides is contributing to this threat, he can freeze that person's assets, freeze their bank accounts. He can prohibit any other American from doing business with that person, including renting that person an apartment, giving them a job, even selling them groceries.

SEAN: Hmm.
LZIA: That can become a crime. So this is an incredibly potent authority.
There's absolutely no court determination that the person has done anything wrong.There's just a secretive process within the Treasury Department. 
SEAN: Hmm.
LIZA: By which the Treasury Department decides that this person poses some kind of a threat.
Now I should say the law has not been used that way very often.
SEAN: Okay.
It was a few times after 9/11 used to shut down Muslim charities in the United States that were suspected of supporting terrorist causes. 

CLIP: Starting with the Holy Land Foundation in 2001, federal authorities froze the assets of 6 charities worth an estimated 14 million dollars.

LIZA: And it was used to target individual Muslim Americans who were suspected of supporting terrorism overseas, again without ever proving the case in court.

CLIP: It is an effort to silence Muslim organizations. Rather than silence us, it has provoked us into standing for justice. For being hungry for justice.

LIZA: And those people, those entities, lived a kind of nightmare because there was no due process. I mean, they were given no notice ahead of time. They just woke up one day and found their bank accounts frozen...
SEAN: Hmm.

LIZA: ...their their offices shuttered. Their names were listed in the Federal Register as suspected terrorists and they would pick up the phone, call the Treasury Department, and not get an answer. And it took months sometimes years to get any kind of response or redress.

And we’re just talking about the TREASURY DEPARTMENT here, right? We haven’t even gotten to the part where the president can use the military as a police force!

LIZA: Yeah, there is something called the Insurrection Act and that allows the president to deploy the military domestically in order to suppress any insurrection. And you know that seems good.
SEAN: Mmm-hmm!
LIZA: That seems like something we might want. But also to suppress
any domestic violence or unlawful combination. That's those are the words of the statute or conspiracy…
SEAN: Hmm.
LIZA: ...that in the president's judgment impedes the course of justice.
So then the question you have to ask yourself is


LIZA: What does this president think a conspiracy is?


LIZA: If for example you know hundreds of people were out on the streets protesting an executive order that he had issued would that be an unlawful combination or a conspiracy - let's say they didn't get a permit or something - you know unlawful combination, you know opposing the execution of federal law, such that he could actually call out the military to come out there with their guns.


SEAN: So we've got taking over communications systems, taking over economic powers of individual Americans, and then this whole thing where the military becomes a domestic police force. To do that, all the president really needs to do is is sign a document.
LIZA: Yep.
SEAN: Print out a PDF and John Hancock the thing?

LIZA: Yeah, well, so in the document he does have to specify the authorities that he plans to invoke as a result of the emergency.

SEAN: But he could just, Is there, like, a box for like all of ‘em?

LIZA: No, there's not a box for all of them.
SEAN: Okay.

LIZA: And that's that's never happened. You know in theory right now President Trump could use the 9/11 state of emergency which is still on the books to try to invoke certain powers to build a border wall.The reason he's not doing that. The reason he's talking about declaring a new state of emergency even though the 9/11 state of emergency would do the trick is because politically it would be so transparent if he were to say, “Hey, Al-Qaeda attacked us back in 2001 we need to build a wall now on the border with Mexico!” You know, it would become very clear that what he was actually doing was abusing his power to get around the will of Congress. And that's why he needs to sort of tee up a new emergency.

SEAN: Is there anyone safeguarding that document? Does anyone have to look at it and say like, “OK, you got it.” Or is it just done.

LIZA: No, no there's no there's no review there's no approval.It's just it's issued and all that. And the powers that he has cited then go into effect. The emergency only lasts a year. But the president can then renew it and renewing it is the same procedure as declining in the first instance namely signing his signature. And so it's routine for presidents to just renew states of emergency year after year after year and they drag on. I mean the oldest state of emergency right now is from 1979.

SEAN: So the 9/11 state of emergency has been renewed?

LIZA: Yes. Every year.

SEAN: By whom?

ELIZABETH: By every president. So it was renewed first by President George W. Bush then by President Obama and then by President Trump.

SEAN: So, we're currently in a state of emergency?

ELIZABETH: We're in 31 states of emergency.

SEAN: Right now? 

LIZA: Yeah. Are you alarmed?

SEAN: I feel the same?

LIZA: I mean I feel like we're in a state of emergency but it doesn't have anything to do with any of those 31 declaration.

SEAN: What are the thirty one?

LIZA: Twenty nine of them are under IEEPA.

SEAN: The economic one.

LIZA: Yeah that one. President Trump, he's issued three declarations for mercy already and the last one related to Nicaragua. Is this the crackdown on a protest in Nicaragua, so sanctioning some officials. That's what most of them are. And there are two states of emergency in effect right now that are not IEEPA declarations and that's the 9/11 state of emergency and then the Cuba embargo.

SEAN: What about the state of emergency powers and how they were recently threatened to be used makes you sort of restless in the nighttime?

LIZA: First of all, there's the fact that there is blatantly no emergency.


SEAN: And that's new, that's a new thing?

LIZA: It's new in this respect. The purpose of emergency powers the whole rationale for them is that they may be needed to address situations that are unforeseen unforeseeable. You know that are a sharp departure from the norm and that are unfolding so quickly that Congress doesn't have time to act.


LIZA: And so the president needs that flexibility immediately. Whatever is happening at the border now is none of the above right. It is none of those things. There may have been declarations of emergencies in the past where the… whatever the adverse circumstances were in some people's minds might not rise to a big emergency. But they were at least adverse changes that had happened rather than business as usual. And in fact at the border it's not even business as usual where we're close to a low in terms of illegal border crossings. So I think it would be unusual in that sense.

A state of emergency would give the president superpowers to do all sorts of things.

But he might be able to do them all anyway.

That’s next on Today, Explained.


SEAN: It sounds like presidents throughout the decades have been using the state of emergency for all sorts of things. What are some of the bigger instances that we might recall other than say 9/11?

LIZA: Well actually presidents have been fairly restrained in their use of statutory emergency powers. It's really been used almost entirely for economic sanctions with a few exceptions.President Obama issued a declaration on the H1N1 virus. And of course there's a Cuba embargo. And you know there've been maybe a handful of others in the last 40 years - 9/11 obviously - but for the most part the vast majority of declarations have related to imposing some kind of economic sanctions against foreign actors. And something like 67 percent of the laws that are available to the president when he declares a national emergency appear to have never been used. At all.However if you look back sort of throughout history and you think about abuses of emergency power which have happened like the major the egregious abuses of emergency power, they have not relied on the National Emergencies Act or the powers that Congress has provided.Generally those presidents were relying on claims of inherent constitutional authority. For example the internment of Japanese Americans during World War II by FDR. Right. The programs of torture and warrantless wiretapping after 9/11 these abuses were based on constitutional claims of authority not not statutory claims.

When I think about some of the more extreme things ordered by a President I think about Eisenhower ordering troops into Little Rock in the 50’s.

CLIP <Eisenhower>: Whenever normally he is proved inadequate to the task, and it becomes necessary for the executive branch of the federal government to use its powers and authority to uphold federal courts, the president's responsibility is inescapable.

Was that due to a state of emergency, or was that something else?

LIZA: That is the Insurrection Act which allows the president to deploy the military to act as a domestic police force.


CLIP <Eisenhower>: I have today issued an executive order directing the use of troops under a federal authority to aid in the execution of federal law in Little Rock, Arkansas.

LIZA: And so there are uses of those powers that make perfect sense and you can understand why those powers were necessary and why they were used. The problem is that the very same power that can be used that was used by President Eisenhower to enforce desegregation could also be misused to send troops to put down political protests in the wrong hands.

SEAN: And have we seen that, too?

LIZA: In 1992 when riots erupted in Los Angeles after the Rodney King verdict.

CLIP <GHW Bush>: Early today I directed 3000 members of the 7th Infantry. And fifteen hundred Marines to stand by at El Toro Air Station, California.


LIZA: You know these were not peaceful political protests there. There was rioting there was violence. And President George H.W. Bush invoked the Insurrection Act to send federal troops to Los Angeles to help put down the violence.

CLIP <GHW Bush>: Tonight at the request of the governor and the mayor I have committed these troops to help restore order.

LIZA: That was controversial. There were some instances in which soldiers themselves acted aggressively in ways that maybe police officers might not have. And so questions about whether that was the right choice. But again not quite what I'm talking about here in terms of what I'm worried about — that the power could be abused to send the military to police peaceful political protests.


SEAN: All these instances sound like presidents trying to work within the framework of their existing powers. What happens when they try to just say here are new powers that I have?

LIZA: I mean there's always the chance that a president might say the laws that Congress has passed aren't enough. And I need to know more and I'm going to do more. And certainly in the modern era, presidents are going to claim that they have constitutional authority to do that. Back in the Civil War when President Lincoln suspended habeas corpus unilaterally instead of having Congress do it which is what the Constitution requires, he kind of said yes maybe I violated the law but I had to do it to save the nation. More recent presidents don't do that. You didn't hear George W. Bush saying well yeah torture is illegal. Sure warrantless wiretapping broke the law. But look I had to do it to protect the nation. You don't get that kind of honesty anymore. What you hear is it's a part of my inherent Article II authority under the Constitution.

SEAN: Mmmm.
LIZA: But there's very little you can do in advance basically to stop that from happening.

SEAN: So what President Trump is threatening to do, to invoke these state of emergency powers to build a wall… it's trying to work within the framework of his powers to circumvent his inability to pass any legislation here, right? Have we ever seen anything like that before?

LIZA: Well, sort of. Back in 1983, Congress failed to renew a law that gave the Department of Commerce Authority to impose controls on certain exports.

SEAN: Hmm.

LIZA: And when Congress basically couldn't get its act together to pass the law and really just you know through the political process went to the political process and did not authorize these export controls, President Reagan issued a national emergency declaration and said he was going to continue those same export controls under IEEPA. So he used an emergency power to get around the fact that Congress had declined to give him the authorization that that he wanted. Subsequent presidents renewed the declaration. Year after year after year. So for a quarter century this national emergency was in place in order to impose export controls that Congress had declined to authorize.

I mean, export control authorization is one thing, but I feel like if Donald Trump invokes this power to build a wall… a wall that members of his own party haven’t felt the need to build for years and years… there might be riots in the street. There might a whole new national emergency!

LIZA: Yeah, I think this is different for that reason. I'm not sure people were paying a lot of attention back then to this particular expert control authority. And I think one of the reasons why it is so abusive for the president to use emergency powers here to get around the political process is he's not just getting around a procedure that is supposed to be followed. He is getting around the will of the American people.


LIZA: I mean this is a topic of intense public debate, and people are calling their representatives you know on a daily basis and those representatives are listening to those phone calls and making their choices and deciding that this is not something that they want to authorize. So this is really fundamentally anti-democratic in perhaps a more sort of poignant way I think than past examples.

I am Sean Rameswaram, This is Today, Explained.