March 3, 2019

CHANG | A Permanent Emergency

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The non-emergency national emergency that President Trump declared on Feb. 15 was a thinly veiled ploy to get funding for his border wall, despite lacking congressional approval.

But to hold Trump’s expansive use of emergency powers as exceptional would be ahistorical. Presidents from Nixon to Truman have utilized emergency powers for their own agendas, and a litany of political theorists like Giorgio Agamben think these states of exception are inherent and inevitable to democratic societies. But we must resist this move towards unchecked executive authority.

We cannot simply wait on Congress or judicial review to resurrect proper checks and balances. Instead, we have to understand emergencies as quotidian instances of power over citizens by an uncontrolled president.

Both the constitutional basis and Congressionally delegated justification for emergency powers are murky. This isn’t a problem that’s restricted to emergency powers either: In my Jan. 20 column, I explored the odd boundaries of trade power as an “intermestic” issue — a problem that spans both domestic and international arenas. Emergency powers, too, aren’t well-defined and exist in this intermestic category. Worse yet, actions to restrict asinine uses of emergency powers have even less legal precedent.

What we do know is that emergency powers are broad and the other two branches of the federal government are loath to check the executive. The National Emergencies Act of 1976 was supposed was supposed to force the president to disclose details about the nature of emergency declarations, limiting baseless declarations. The NEA required that the president update the public about the emergency expenditures in addition to renewing the emergency each year.

Even in light of the NEA, 31 national emergencies are in effect, including a declaration against Iran that President Carter signed into law in 1979. For any national “emergency” to span such a long amount of time clearly circumvents the NEA and proves that some statutory changes must be made.

In the judicial sphere, deference to the executive on questions of national security has been nearly absolute after Youngstown Sheet & Tube Company v. Sawyer, in which the Supreme Court ruled against President Truman’s power to take control of steel mills during the Korean War. That was in 1952. Which means for the past six decades, courts have agreed with executive interpretations of statutes. So when the Court ruled that the president should have exclusive power over foreign affairs in Zivotofsky v. Kerry in 2015, we only edged closer to literally unfettered executive authority over foreign policy — or any foreign policy decisions that implicate domestic policy.

The effects of all this sound vague and uncertain. And it is vague — because presidential flexibility and power haven’t been contested frequently or in detail. Many of these powers are unresolved or discussed in secret. But historical precedents for unchecked executive power clue us into just how far presidential powers might extend: FDR’s placed Japanese-Americans in internment camps, Lincoln suspended habeas corpus so arrests couldn’t be processed in court and Bush increased the surveillance state dramatically after the Sept. 11 terrorist attacks.

Elizabeth Goiten’s recent article in The Atlantic magazine paints a horror story of what a state crackdown through national emergency declarations might look like in the age of Trump. Perhaps Trump tweets about an Iranian cyber operation. On that basis, war hawk and national security advisor John Bolton begins advocating an invasion of Iran. A declaration of war would then vest in the president the ability to control the internet (through the Communications Act of 1934) and crack down on protestors who take to Twitter or the streets (through the power to mobilize the National Guard).

Goiten presents a fear-mongering doomsday scenario, and she acknowledges the improbability of it later in the article. But her basic point still stands: The executive’s powers could mean a permanent emergency state. Even the threat of imposing such powers goes against the checks and balances of our democratic system, especially when legal reviews are circumvented or outdated statutes rarely challenged.

To hold Trump as exceptional would be a mistake. He is merely a symptom of unchecked executive power. We should instead recognize our need for civil liberties as students. Whether we or our friends fear an increased police state, an empowered ICE or an NSA with eyes everywhere, we should draw a line in the sand.

We should publicly advocate for serious restrictions on executive power, especially to establish national emergencies. There are certainly times when presidential flexibility is necessary — for example, responding to a military attack or managing a natural disaster. But by and large, the statutory delegations and justifications for these emergency powers are not only outdated but also dangerous for our rights and civil liberties. We must pressure Congress to review executive authority before it’s actually too late and tanks are rolling down Tower Road.

Darren Chang is a sophomore in the College of Arts and Sciences. He can be reached at dchang@cornellsun.com. Swamp Snorkeling runs every other Monday this semester.