On March 13, 2020, President Donald J. Trump declared a “national emergency” under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) to deal with the COVID-19 crisis. The Stafford Act is a 1988 amendment to the Disaster Relief Act of 1974.
42 U.S.C. § 5122 defines an “emergency” under the statutory provisions as “any occasion or instance for which, in the determination of the President, Federal assistance is needed to supplement State and local efforts and capabilities to save lives and to protect property and public health and safety, or to lessen or avert the threat of a catastrophe in any part of the United States.”
How Emergency Powers Are Used is Disturbing
In 2019, the Brennan Center for Justice at the New York University School of Law published a comprehensive study titled “A Guide to Emergency Powers and Their Use” that deals with the powers enjoyed by the president under the 136 statutes that allow them to declare a “national emergency.” The findings of the Brennan Center report include:
- Emergency powers cover almost every imaginable subject area, including the military, land use, public health, trade, federal pay schedules, agriculture, transportation, communications, and criminal law.
- Some stand out as particularly alarming in what they authorize and in their potential for abuse. One statute, for example, would allow the president to suspend a law that prohibits the testing of chemical and biological weapons on unwitting human subjects. Section 706(c) of the Communications Act of 1934 allows the president to shut down or take over radio stations. If she proclaims a threat of war, she can go further and take over wire communications as well. The International Emergency Economic Powers Act (IEEPA) allows the government to freeze any asset or block any financial transaction in which a foreign national has an interest, even if the asset belongs to an American or the transaction is between Americans.
- Other powers seem almost absurdly mundane, to the point that it is difficult to see how they could help alleviate emergency conditions. One law, for instance, allows members of the Coast Guard to serve as notaries public in times of national emergency. Another allows the Secretary of the Interior to close the Fort McHenry National Monument.
- Of the 136 authorities available to the president in a national emergency, 96 require nothing more than her signature on the emergency declaration. Twelve contain a de minimis restriction, such as a requirement that an agency head certifies the necessity of the measure (something the president can presumably order the agency head to do). Fifteen contain a more substantive restriction, such as a requirement that the emergency relates to a particular subject matter or that it involves the use of armed forces. Only 13 require a congressional (versus presidential) declaration of emergency.
- These emergency authorities have accumulated over decades. Fifty-eight of the statutes were first enacted more than half a century ago. We could find no record of usage for many of the statues — which raises the question of whether these powerful and potentially dangerous powers are even necessary. Indeed, more than half of the laws in the database (67 percent) appear to have never been invoked. At least four have been rendered facially obsolete since they were enacted. For instance, one statute provides powers regarding an island in the Panama Canal Zone that the United States no longer controls, and another one exempts World War II veterans from the draft.
- A few of the statutes have been used frequently, with six having been used more than ten times. Most notably, the International Emergency Economic Powers Act has been invoked on an almost yearly basis since it was passed in 1977 and is cited in all but three of the emergencies ever declared under the National Emergencies Act. This level of reliance on an emergency power raises a different concern: that the actions are not emergency actions at all, but the implementation of standard policy that should be bound by non-emergency law.
- Although the very concept of “emergency” suggests a temporary, short-term event, states of emergency last a long time, and they’re getting longer. Thirty-one of the 58 states of emergency declared since the National Emergencies Act are still in effect today. The average duration of declared emergencies is 9.6 years. Twenty-five emergencies have lasted ten years or longer; 13 of these were declared between 2001 and 2008. The longest-lasting emergency, Blocking Iranian Government Property, was first declared in 1979 on the heels of the hostage crisis and has been persistently renewed for 39 years.
- Emergency powers are used as a pretext to deal with other problems. Presidents Obama and Trump invoked nonexistent economic crises to decrease or eliminate statutory pay increases for federal workers. (While there was a financial crisis at the beginning of Obama’s administration, he continued to invoke this emergency law throughout his two terms.) President Trump invoked the 9/11 state of emergency in 2017 to fill a chronic shortage in Air Force pilots.
The Brennan Center study is nothing short of disturbing. Under the far-reaching statutory authorizations for declaring a “national emergency” lays the ugly potential for dismantling our established constitutional protections through authoritarian declarations of national emergencies.
U.S. is in Continuous State of Emergency
For example, in a December 2017 Lawfare blog, Catherine Padhi pointed out that the United States was then in its 39th straight year of a “continuous emergency state.”
For example, in 2017, President Trump became the seventh president to renew the 1979 “national emergency” declared by President Jimmy Carter in connection with the Iranian hostage crisis.
Worst yet, as pointed out by Ms. Padhi, President Trump, by the end of 2017, had already declared 128 Stafford Act national emergencies. Usually, a Stafford Act “emergency” would have to be requested by the governor of a state facing a disaster crisis. Still, the president has the inherent authority to declare a “national emergency,” as Trump did with the COVID-19 crisis.
National emergency declarations have an ugly potential for abuse.
The state of emergency declared in December 1950 by President Harry S. Truman to deal with the Korean War was used by three presidents to, as Ms. Padhi noted, “to wage war” in Vietnam—an American war that has since been criticized as both unnecessary and illegal.
President Trump has displayed an authoritarian penchant for using his executive emergency powers to fulfill his political objectives.
Trump’s Use of “Emergency Powers”
In a March 13, 2020 Politico blog, Josh Gerstein pointed out that within his first seven days of taking office, Trump used his emergency powers to implement what became known as the “Muslim travel ban.”
This past January, Trump used the Stafford Act and the National Emergencies Act of 1976 to divert $7.2 billion from Pentagon funding to build the “border wall” he pledged to construct during his 2016 presidential campaign.
On the other hand, The president unnecessarily delayed three months into the “COVID-19 crisis” before invoking the Stafford Act to declare a “national emergency” because it did not serve his political interests to recognize the medical emergency.
In fact, the day before the Stafford Act declaration, Trump provided reporters with this warning:
“We have very strong emergency powers under the Stafford Act … And if I need to do something, I’ll do it. I have the right to do a lot of things people don’t even know about.”
Unfortunately, the Republican-appointed justices on the U.S. Supreme seem more than willing to let the president use his executive powers to do pretty much as he pleases. In a July 2019 decision reflecting this philosophy, the high court lifted a lower court ruling prohibiting the president’s attempt to expand the border wall by using $2.5 billion in unspent military funds.
Unchecked Power Ripe for Abuse
Will President Trump use his emergency powers to suspend the 2020 presidential election? Or will he order the closing of polling stations in dense Democratic areas to hinder a large Democratic turnout?
These questions are ripe for public debate because this president has demonstrated not only a willingness but an eagerness to use his emergency powers to fulfill political objectives. Donald J. Trump is afraid COVID-19 will cost him a second presidential term. A scared Donald Trump is a dangerous President Donald Trump.
The president himself may become a “national emergency.”