I was both alarmed and puzzled by a piece I saw on the New York Times website yesterday about “secret emergency powers of the president.” The essay, by former Colorado governor Gary Hart, is titled “How Powerful Is the President?” Hart writes that there are “at least a hundred documents authorizing extraordinary presidential powers in the case of a national emergency, virtually dictatorial powers without congressional or judicial checks and balances.” Hart writes,
What little we know about these secret powers comes from the Brennan Center for Justice at the New York University Law School, but we believe they may include suspension of habeas corpus, surveillance, home intrusion, arrest without a judicial warrant, collective if not mass arrests and more; some could violate constitutional protections.
What had me scratching my head was how the president could possess powers that are unknown to Congress. Aside from the powers granted by the Constitution, isn’t it Congress that grants authority to the president? Wouldn’t Congress have had to vote on those, and wouldn’t they have a record of what they’d voted on?
The Brennan Center link in Hart’s essay took me to an article by Elizabeth Goitein, a co-director of the center’s Liberty and National Security Program. In it she says that while some of the president’s emergency powers were “set forth in laws passed by Congress, others [are] contained in secret presidential orders.” Those are the “secret powers” that Hart referred to.
Goitein says the Brennan Center has identified 123 powers in laws passed by Congress that may become available to the president when he or she declares a national emergency. Most of these require nothing more than the president’s signature on an emergency declaration to go into effect. An additional 13 statutory powers become available when a national emergency is declared by Congress. According to the Brennan Center article,
Some of the laws 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 facilities as well. [The article says elsewhere that this could authorizing seizing control of the internet.] 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.
These statutory powers, which are all a matter of public record, are unsettling enough, especially when viewed in the context of the Trump presidency. But when I followed the link in the Brennan Center piece to a longer article that Goitein wrote for The Atlantic, I learned more about the president’s secret emergency powers.
The Supreme Court, Goitein says, has ruled that there may be circumstances under which it would be permissible for the president to declare martial law, which would put his actions beyond the reach of review by civilian courts. Examples the court gave were foreign invasion or civil war, but beyond that it was not very specific. Goitein writes,
Presented with this ambiguity, presidents have explored the outer limits of their constitutional emergency authority in a series of directives known as Presidential Emergency Action Documents, or peads. peads, which originated as part of the Eisenhower administration’s plans to ensure continuity of government in the wake of a Soviet nuclear attack, are draft executive orders, proclamations, and messages to Congress that are prepared in advance of anticipated emergencies. peads are closely guarded within the government; none has ever been publicly released or leaked. But their contents have occasionally been described in public sources, including FBI memorandums that were obtained through the Freedom of Information Act as well as agency manuals and court records. According to these sources, peads drafted from the 1950s through the 1970s would authorize not only martial law but the suspension of habeas corpus by the executive branch, the revocation of Americans’ passports, and the roundup and detention of “subversives” identified in an FBI “Security Index” that contained more than 10,000 names.
Less is known about the contents of more recent peads and equivalent planning documents.
Hart’s essay in the Times calls for the creation of a select congressional committee modeled on the Church Committee, which was created in 1975 to investigate abuses by U.S. intelligence agencies. It would hold public hearings to determine what emergency powers are specified in PEADs and other secret presidential documents.
I have no confidence that any such thing will happen prior to the election, but it may very well be done starting next year if Democrats win the White House and a majority in the Senate. Following the Watergate scandal, Congress enacted a number of laws to help ensure that nothing like Watergate would ever happen again. It seems likely that similar legislative action will be taken in the wake of the Trump presidency to make it more difficult for future presidents to run roughshod over the norms that underlie the functioning of our democracy.
Fingers crossed.
As you point out, Paul, the publicly known powers of the president are scary enough. The office has always relied on our electing an occupant who respects the oath of office and exhibits a smidgen of moral sense. Apart from the scale of damage a rogue president can cause, this is much like our assumption that people on the street won’t viciously attack us when we take a walk around the block. Well, the results are in: in the presidential case, it turns out the common-decency assumption breaks down about once in every 45 tries.