U.S. ‘national emergency’ law a disaster waiting for a demagogue like Trump | Will Bunch

Roughly two years after his election, the president declared a “state of emergency.” More significant is what happened after that: Political opponents and journalists thrown in jail by the hundreds, universities and labor unions shut down by the government, mass firings of public workers suspected of disloyalty, and an autocratic leader able to bypass the legislative branch and issue new edicts by fiat.

That’s what Turkish president Recep Tayyip Erdoğan — a despotic ruler that President Trump has long known and even admired — has done over the two years since a failed military coup in his country, and it’s one more reason why the very notion of a democratically elected leader declaring a “national emergency” or “state of emergency” strikes fear into the heart of anyone who truly believes in human rights and liberty.

All it takes is a brief, half-hearted Google search to compile a nightmarish list of human-rights and often dictatorial abuses conducted around the world in the name of “a national emergency,” from Egypt (in an anti-democratic emergency state almost continuously since 1967) to every Fox News Channel host’s favorite nation-state, Venezuela. You know who else declared a “state of emergency”? Germany’s 20th-Century Article 48, and its abuse by the newly elected Nazis after 1933′s infamous Reichstag fire, is the mother of all national emergencies. The rest is History Channel.

So, yeah, it’s definitely a big (insert Bidenism here) deal that President Trump is said to be leaning heavily in favor of declaring a “national emergency” aimed at bypassing a balky Congress and ending the lengthy government shutdown by giving his White House authority to use defense monies to begin building a wall, or some type of barrier, on the southern border. We’ll find out for certain when the 45th president addresses the nation from the Oval Office on Tuesday night.

There are two overlapping issues here. The first is the one you’ll hear the most about (assuming, of course, that Trump follows up on his threat), and let me add my voice to that chorus: A phony “national emergency” as a trumped-up excuse to go around the will of the people, and to rally his base — as a criminal investigation seems to be closing in on the White House — would be by the far the worst abuse of power of the Trump presidency. And that is really saying something.

The only crises on the border are a) the humanitarian crisis of mothers and their children fleeing murder, rape and despair in Central America and b) the human-rights catastrophe that Trump and his minions have created by blocking the legal right of asylum, separating families and throwing little kids in cages.

But the second issue also requires America’s urgent attention — if it’s not too late. That’s the steady drip-drip-drip of Congress, as well as an apathetic public, conceding far too many emergency powers to America’s presidents — Democrat or Republican, conservative or liberal — since the time of the Great Depression and Franklin Roosevelt’s New Deal. With almost zero fanfare or public debate, America has created an infrastructure of national emergency that had already become something of, well, an emergency for people who care about a democratic government with real checks and balances. It’s a framework that was just waiting for a demagogue like the one that America elected on November 8, 2016.

How many citizens even knew that 12 national emergencies had already been declared by the president ... who was named Barack Obama. Indeed, America is currently operating under 28 active national emergencies, including one — aimed at the Iranian government, imposed by then-President Jimmy Carter during the U.S. Embassy hostage crisis — that has been in effect since 1979.

Most of the dozens of emergency declarations have been centered on blocking financial transactions or movements by suspected terrorists or officials of nations in conflict with the United States, while the best-known declaration — in response to 9/11 — is renewed every year on the anniversary of the 2001 terror attacks. But the National Emergencies Act of 1976 — approved by Congress in the aftermath of Watergate with a vague notion about curbing an increasingly imperial presidency — seems to have had the opposite effect.

Elizabeth Goitein, who co-directs the liberty and national security program at the Brennan Center for Justice at New York University’s School of Law, has noted that existing law gives presidents the ability to claim sweeping powers, to take measures such as shutting down much of America’s electronic communications or seizing the bank accounts of U.S. citizens. The good news, she told me by phone Tuesday morning, hours before Trump’s speech, is that the eight presidents since the current law was passed 43 years ago have been fairly restrained. The bad news is the vast opportunity we’ve created for a demagogue, present or future.

Goitein — author of a major article in the current Atlantic entitled “What the President Could Do If He Declares a State of Emergency” — said there have already, arguably, been some abuses of the law, most notably when then-President George W. Bush used the 9/11 declaration for moves against Iraq, which had nothing to do with attack on the World Trade Center.

But Goitein said the notion that Trump might claim emergency powers for border security, which could include using the military to seize land for his multi-billion-dollar schemes of a wall or a steel barrier — when such a measure is opposed by the Democrats' new House majority and, according to polls, by a majority of Americans — "feels more like an abuse of power. She called it “potentially the beginning that opens the door if Trump is allowed to do this.”

The problem, according to Goitein, is that — despite what you might wish to believe about America''s much-ballyhooed system of checks and balances — there may be no easy way to constrain Trump from acting unilaterally on his border schemes. While the 1976 law technically grants Congress the power to curb presidential abuses, the reality of needing a two-thirds majority in both houses to override a certain Trump veto makes that a bridge too far, with most GOP lawmakers still clinging to their unpopular president. Goitein said the Supreme Court might take issue with some of the specifics of Trump’s spending on border security but, with its current, conservative majority, would be unlikely to challenge the president’s broad authority to declare an emergency.

That said, it feels like the growing likelihood of Trump exercising these autocratic powers would be crossing a Rubicon — a river of no return for the American Experiment. Despite the long odds, Congress should move to nullify any bogus emergency declared by the president. Perhaps right-wing GOP lawmakers — who seemed so concerned during Obama’s presidency about a conspiracy theory that a 2015 Texas military drill called Jade Helm was a secret invasion — would join in condemning the actual use in Texas of U.S. soldiers taking land from citizens, if it comes to that. Activists should challenge the move in court, and everyday citizens should take to the streets to fight for survival of our democratic principles.

But when the dust settles — and God willing it will, eventually — Congress must get to work on the mission of curbing the imperial presidency, the task that it tried and failed in the mid-1970s after Watergate. A lot of that would involve lawmakers simply having the courage to exercise the powers they already have, not just to make sure that national emergencies are actual emergencies, but also on whether America’s “Forever War” that stretches from Africa to Afghanistan is still justified. That would be the government that the Founding Fathers actually envisioned — a government without a king or a dictator.