State of Emergency

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We are going to build a wall.

Don't worry about it.

And

wait a minute.

And who's going to pay for the wall?

Who's going to pay for the wall?

Who's going to pay for the wall?

I've never done that before.

That's actually cute.

I've never done it.

I swear.

Two years into office, President Donald Trump has not convinced Mexico to pay for the wall.

He hasn't hasn't convinced Congress to pay for it either.

And after that became clear last week, Trump was faced with a choice, shut down the government to try and push one more time for that wall funding, or sign a budget without money for that wall.

Neither option was good.

The shutdown was terrible politically for Trump and his party, and reneging on his signature campaign promise was also terrible politically.

So the president devised a third option, a nuclear one, if you will.

Sign the budget deal, but declare a national emergency.

That move theoretically gives the president unilateral power to move money around, but it has been immediately challenged.

On Monday, 16 states sued to stop President Trump.

So, what exactly is a national emergency?

Why is this one different?

And just how far do a president's emergency powers really go?

This is Radio Atlantic.

Joining me now is Liza Goyteen, co-director of the Liberty and National Security Program at NYU's Brennan Center for Justice.

In December, before the government shut down, and well before the president's announcement in the Rose Garden last week, Liza spent time researching what powers presidents have in a national emergency.

What fortuitous timing.

She wrote about that research in The Atlantic Magazine, describing over 100 emergency powers that were ripe for abuse, and that this edifice of extraordinary powers has historically rested on the assumption that the president will act in the country's best interest when using them.

Well, you know what they say about assumptions, or at least assuming.

Lila, thanks for joining me.

Thanks so much for having me.

So let me just ask you a question.

When you first wrote this piece for the magazine about emergency powers, did you have any inkling that it would be just a few weeks until President Trump marched into the Rose Garden and declared a national emergency?

Do you have some kind of crystal ball?

How did this piece come about?

Not at all.

It actually happened much sooner than I would have anticipated.

But of course, I was worried that it would happen.

Otherwise, you know, I wouldn't have written the piece.

So it definitely was something I was concerned about.

I was concerned about it from the moment that the president was elected

because I anticipated that he would either react to an actual emergency in a way that might undermine the rule of law and democratic institutions, or that he might even concoct an emergency for that purpose.

And when the Muslim ban was issued in January of 2017, it reinforced all my fears because that was an emergency response in the absence of any triggering emergency.

And that really got me thinking, you know, suppose there was something like a terrorist attack.

What could this president do?

So let's start at the very beginning, as in like the beginning of America.

Does the phrase national emergency actually even appear anywhere in the Constitution?

The word emergency doesn't appear anywhere in the Constitution.

Our Constitution is actually somewhat of an outlier among modern democracies, modern constitutional governments, in that it does not include a separate legal regime for emergencies.

And the only provisions of the Constitution that seem emergency-like, that talk about powers that exist during crisis-type situations, are powers that are given to Congress, not to the president.

So for example, Congress has the power to suspend habeas corpus if required during times of rebellion or invasion, not the president.

So there's absolutely nothing in the Constitution that expressly gives the president emergency powers.

So it sounds like there was kind of an ad hoc system basically from the founding of the country up till almost the 1970s.

In the 18th and 19th centuries, it was Congress that was passing laws to give the president additional leeway during military, economic, and labor crises, according to your piece.

And then a sort of more formalized approach evolved in the early 20th century when Congress legislated powers that effectively lied dormant, lay dormant until the president activated them by declaring a national emergency.

But it sounds like things sort of began to bottleneck, right, in the 20th century.

Tell me a little bit more about that.

That's right.

I mean, there was no actual accountability when the president declared a national emergency.

There was no requirement that he specify which laws he planned to invoke or rely on, no requirement that he report to Congress, not much transparency around the whole thing.

And Congress basically woke up to this in the 1970s at the same time that Congress was much more generally starting to look at executive power in the wake of abuses like Watergate and CIA spying domestically.

And so as part of this sort of re-examination of presidential power, Congress looked at emergency powers, realized that there were several declarations of emergency that were clearly outdated, that were still on the books, and that there were literally hundreds of statutory powers that became available to the president when he declared a national emergency.

So, Congress decided that it needed to kind of get a handle on this situation.

And the National Emergencies Act, which Congress passed in 1976, was actually intended to create some oversight for the system of emergency powers.

Well, isn't that the old saying is that the road to hell is paved with good intentions?

It sort of sounds like maybe that is in effect here, right?

Congress was trying to do the right thing in 1976 by passing the National Emergencies Act.

But by any measure, it sounds like it's been a miserable failure, Liza.

Yeah, that's right.

And I mean, Congress bears some of the blame for that, but not all of it.

So what the National Emergencies Act did was it required the president to publish a declaration of emergency in the Federal Register to identify all of the emergency powers that he planned to invoke during the emergency.

He had to report to Congress every six months.

The emergency declaration would expire after a year unless he renewed it.

And I think Congress somehow thought that was going to be much more of a barrier than it proved to be.

And finally, most importantly, Congress had the ability under that law to vote to terminate a declaration of emergency through something that's called a concurrent resolution, which is also known as a legislated veto.

And that is a law that Congress passes that the president doesn't actually have to sign.

So it's a much easier way for Congress to stop the president from doing something.

Now, in 1983, the Supreme Court held in a different context that legislated vetoes are unconstitutional.

And so Congress had to change that and turn that into essentially

Congress can pass just an ordinary law that the president signs to end a state of emergency.

But it has to be a veto-proof law.

In practice, it really does, because you obviously would expect that the president would veto something that's terminating his state of emergency.

And so you need a supermajority in Congress, which was obviously not the idea behind the original National Emergencies Act.

The other thing that hasn't played out as expected is that the law required Congress to meet every six months while an emergency was in effect to consider a vote on whether to end the state of emergency.

And it's been more than 40 years.

There has been at least one state of emergency in effect.

at all times.

So Congress should have met

more than 80 times at this point to consider whether to vote

on a joint resolution to end the emergency.

And Congress has never voted a single time on a resolution to end a state of emergency.

So even though Congress had the best of intentions when it passed the National Emergencies Act, that law has not proven to be anything like the check that Congress intended for it to be.

Good job, Congress.

And by good job, I mean, what job are you actually doing?

We're going to take a quick break, but when we come back, we're going to get to the juicy slash apocalyptic part of this discussion, where we'll discuss the doomsday scenario for the national emergency and specifically the powers President Trump could grant himself that could very well turn things upside down.

Stay with us.

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Okay, we are back with Eliza Goitin, co-director of the Liberty and National Security Program at NYU's Brennan Center for Justice.

Liza, so in part of your article for The Atlantic, you do a very convincing job of scaring the bejesus out of most readers in outlining how presidents under the auspices of national emergencies could grossly abuse their power.

And there are two examples that I think are probably worth talking about in light of the current emergency that the president has declared.

The first is Executive Order 13224, the targeting of American citizens.

Briefly, if you could, explain what that is and the powers it grants in an emergency.

Sure.

So one of the most potent emergency powers is the International Emergency Economic Powers Act.

And that is a law that allows the president when he declares a national emergency

and in particular, if he identifies an unusual or extraordinary threat to national security or to the economy or to foreign relations that comes at least in substantial part from overseas, he can then declare a national emergency and use this law to impose all kinds of economic penalties, essentially, on

any designated person

that is associated in some way with that foreign threat.

And the person or the organization that is designated does not himself, herself, or itself have to be a foreigner.

It can be an American.

But if the government decides that that American is in some way contributing to this foreign threat, that is the basis for a declaration of national emergency, the government can freeze that person's bank account,

prohibit on penalty of criminal penalties, can prohibit any other American from doing business with the designated person.

And what that means is that no one in the country can rent an apartment to that person.

No one can give them a job.

No one can even sell them a loaf of bread.

And that is the power.

of the International Emergency Economic Powers Act.

So effectively what we're talking about here is the government basically decides that someone, could be an American, is somehow involved with or supporting what they see as a terrorist threat.

And that person doesn't have to be notified.

There's no hearing involved.

But the government can effectively freeze his financial assets and effectively

ice out the person from

the American sort of marketplace, American livelihood, the American career ladder.

I mean, basically freeze his financial picture without any particular recourse for said American target.

Is that right?

That's right.

I mean, the American target can, of course, sue in court and try to get redress that way.

He can't pay a lawyer to represent him in court because the lawyer can't accept money from that person.

But anyway, if the person can find someone to represent him pro bono, he can go to court.

And there were a couple of rulings

after 9-11 when Americans were designated as being involved in some way in terrorism.

And this was never proven in court.

This was all according to secret evidence that the Targets never had a right to see.

But they challenged it in court.

And a couple of judges

held that

this raised huge constitutional questions and was probably unconstitutional.

And so, but the Obama administration, which inherited these cases, decided not to appeal them.

And so it never went all the way to the Supreme Court.

Basically, the Obama administration just kind of changed the way that it was using this particular emergency power in order to moot the issue.

So we are left with a couple of good decisions saying, you know, constitutional problems here.

But if President Trump were to

decide to invoke, declare a national emergency and invoke IEPA, this very powerful law, and use it against Americans, at that point, I think the legal battle would pick up exactly where it left off.

And the difference would be that we have a very different Supreme Court now that would be making the final call.

Yeah, I mean, in the context of the current immigration, quote-unquote, crisis, you outlined this.

A president could determine that, say, an American inside the U.S.

who's offering some kind of support to people seeking asylum or someone who's offering support to undocumented immigrants inside the U.S.

therefore poses an unusual and extraordinary threat to our national security and all of the sort of like penalties and

punitive measures would be taken.

In theory, it could be used that broadly.

If you look at the language of the statute and if you look at how it was used after 9-11, it really could in theory be used that broadly.

Now, part of what this gets to is that past presidents really have not explored the outer limits of their powers under statutory national emergencies.

There has actually been a fair amount of restraint that's been exercised.

If you look at the fact that there are 123 different statutes that would give the president extraordinary powers during a national emergency, and almost 70% of those have never been invoked during the entire time the National Emergencies Act has been in force.

That tells you that there has been

a norm to some extent of self-restraint among past presidents.

And what worries me is what would happen if there were a president who did not sort of share that commitment to

liberal democracy, shall we say.

I can't imagine which president you're talking about, Liza.

Who is a norm-shattering president?

I can't think of one.

The other

power that you detail in the piece that I think is particularly relevant to this moment is the Insurrection Act of 1807.

That allows the president to deploy troops inside a state unilaterally, either because he determines that rebellious activity has made it impracticable to enforce federal law through regular means, or because the president deems it necessary to suppress insurrection, domestic violence, unlawful combination, combination, or conspiracy.

Now, this has been used.

Eisenhower used it in 1957 when he sent troops into Little Rock to enforce school desegregation, perhaps a noble maneuver there.

George H.W.

Bush employed it in 92 to help stop the riots in L.

Los Angeles after the Rodney King verdict.

George W.

Bush considered invoking it to help restore public order after Hurricane Katrina.

How, how, I mean, you talk about this

power in the context of sanctuary cities, right?

Cities that refuse to provide assistance to immigration enforcement officials as potential conspiracies against federal authorities.

How would the president's power granted to him in the Insurrection Act play out in a situation like that with a sanctuary city?

So there's a provision of the Insurrection Act that allows the president to act unilaterally and deploy the military even without a request from a state governor in situations where domestic violence or

insurrection

or a conspiracy or an unlawful combination and those terms are not defined in the statute when any of those things in the president's judgment is obstructing or opposing the execution of federal law then the president can deploy the military to suppress that whether it's domestic violence or

conspiracy or unlawful combination.

And this is an exception to the principle of posse comitatus.

Posse comitatus is, it's actually a law that Congress passed in the 1800s that says that the military essentially cannot act as a domestic police force unless Congress has specifically said that it can.

And the Insurrection Act is where Congress specifically said said the president can use the military as a domestic police force if the president decides that there is a conspiracy or unlawful combination that's obstructing the execution of federal law.

And it's that vague and undefined language that got me worrying about things like sanctuary cities.

Okay, so as I understand the landscape now, norms have effectively kept presidents from abusing the powers granted to them in the context of national emergencies.

This president, evidenced by his behavior last week, seems more open to challenging accepted norms, if we are being euphemistic.

But he has been sued by 16 states in his declaration of this national emergency.

How does that case look to you in terms of, you know, can the president be stopped by these lawsuits?

The reason why the president is being sued in this case and prior emergency declarations have not generated lawsuits is because what the president did here is unprecedented.

What he has done is to invoke emergency powers for the purpose of doing something that Congress has said he cannot do.

So Congress voted not to give him the power, I'm sorry, the funding to build the border wall.

And then he turned around and declared a national emergency for the purpose of getting around Congress, which he was very upfront about.

I mean, he said many times, I'm not going to declare the emergency if Congress gives me what I want.

If Congress gives me trouble, I'm going to declare the emergency.

That is a very

different use of emergency powers from what we've seen in the past.

And it raises significant constitutional issues because Article I of the Constitution is quite clear that the president cannot spend money that Congress hasn't appropriated.

So once you see emergency powers used as a workaround to get around Congress, then you're talking about a very, very different legal kettle of fish, to mix my metaphors, I guess.

And that's why the states have sued.

That is,

in many respects, that is the basis of their claim.

Yeah, so it seems like Trump sort of didn't help his case by effectively saying, allowing Congress to submit a budget resolution that didn't have wall funding, because now

the lawsuits have a legitimate case to make when they they say, look, you're only doing this because Congress didn't behave the way you wanted the legislative body to behave.

But

that does not take into the equation the Supreme Court, which is newly conservative.

And

some of the folks on the court we know have ruled in the past on the side of executive power.

How do you see that landscape factoring into the president's legal woes?

Yeah, there are reasons to worry.

Exhibit A on that is the Supreme Court's decision on the Muslim ban.

And that was a case in which, in some ways, you had a similar dynamic.

You had

a paper-thin pretext that the president was acting on having to do with public safety or national security that had no evidence behind it.

And on the other side, you had mountains of evidence that the president was acting for unconstitutional reasons, with an unconstitutional motive.

And five justices, and that included Justice Kennedy, that was before Justice Kavanaugh,

were willing to just ignore the evidence of unconstitutional motive and to credit these

really just flimsy national security claims.

So

that, I mean, there's a somewhat similar dynamic here, but I'll tell you what's different.

The president didn't go to Congress and ask Congress to pass a law that

implemented this travel ban.

And Congress didn't then vote and vote to withhold authority to implement the Muslim ban.

So what the president was doing with his executive order was not an explicit attempt to undermine Congress and to undermine the separation of powers.

So I think that's where the emergency declaration lawsuit might be different.

And I am hoping that even with a very conservative court and one that is generally quite permissive when it comes to executive power, that this will just be a bridge too far.

Interesting.

And then, of course, there is the legislative branch itself, which in theory could pass a law preventing the president from calling a national emergency.

They just have to pass it with a veto-proof majority, which seems close to impossible in this political landscape, does it not, Liza?

Well, it does.

But I have to say, I mean, I was pleasantly surprised by how many Republican lawmakers, Republican senators spoke out publicly against using a national emergency in order to build the wall.

They were very outspoken about it.

Of course, that doesn't always translate in the past.

It has not always translated into a willingness to vote against what the president wants.

So, you know, I would love to see those conservative lawmakers put their money where their mouth is and support a resolution to terminate the state of emergency.

I'm not terribly optimistic,

but there were, you know, Mitch McConnell went up to the White House to plead with President Trump not to declare a national emergency because he knew that it was going to put his caucus in a very difficult position.

Republican lawmakers did not want this to happen.

They asked for this not to happen.

And President Trump has really left them twisting in the wind.

So maybe at some point

They will just decide that he doesn't have their back and they don't have to have his.

Again, I'm not terribly optimistic.

Maybe, except that Mitch McConnell was the person to go to the floor of the U.S.

Capitol and say, I support the president's call for a national emergency and I'm informing my fellow

I'm informing the Congress that he is going to sign our budget bill and also declare a national emergency, which doesn't exactly give us confidence that Republicans will stand in the way, although, you know, they seem to be animated by the idea that if this president is allowed to declare a national emergency, what's to stop the next president, maybe a Democrat, from doing the same thing?

And the sort of partisanship and the partisan fear over that, maybe that will be enough of a deterrent for them to actually act on this one.

We shall see.

Not to mention, Mitch McConnell doesn't get to call the shots on this one.

Ordinarily, he can prevent legislation from coming to the floor.

Under the National Emergencies Act, he can't do that.

There actually has to be a floor vote, and it can't be filibustered.

So he does not have the power he usually has to carry the president's water in this situation.

I have to ask you, Liza, when we look at the landscape before us, you were the person that sort of thought, okay,

I see this president.

I see what he's doing.

I'm looking at his track record thus far.

I'm going to look and see where civil liberties might be abused and what sort of feasible threats we may have to worry about.

And wrote this exhaustive and thoughtful piece about national emergencies.

You also have outlined some very disturbing ways in which the president can sort of abuse the levers of power that are granted him in an emergency.

Did you at all feel trepidatious about outlining the ways in which the president

could abuse power, given the fact that he seems at least open to the idea, more so than any of his predecessors.

In other words, did you worry about writing this piece?

Absolutely, I did.

And I did not jump right into it by any means.

I actually convened a working group of former government officials to talk to you about all kinds of issues around emergency powers, but that was one of them.

And I had many long conversations with former executive branch lawyers on exactly this question.

Am I providing a roadmap in some way that's going to potentially be harmful?

And they all told me the same thing, which is that executive branch lawyers know about these powers.

They are not a secret from the lawyers in the government.

Not this administration, not any other administration.

There are binders in the top drawer of these lawyers' desks with compilations of these emergency powers.

These powers are a secret only from the American public.

And I was convinced after all of these conversations that writing this piece was a way to try to even the playing field a little bit, because really it's only if the public becomes aware of these powers that there can be any impetus for change and for reform.

So in other words, if the president starts invoking the Insurrection Act of 1807, don't blame Liza Goitin.

Please, please don't blame me.

Thank you for sharing this terrifying roadmap with our listening audience.

And thanks again for joining the podcast.

Thanks so much for having me.

Okay, that'll do it for this week of Radio Atlantic.

Thanks to Kevin Townsend for producing and editing this episode, to our podcast fellow, Patricia Jacob, and to Catherine Wells, the executive producer for Atlantic Podcasts.

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