On presidential emergency powers, Congress is AWOL as usual

Brennan Center graphic

The sweeping nature of presidential emergency powers – some of which are so classified we don’t even know what they are – is the direct result of Congress’s inability and unwillingness to fulfill its constitutional role as a check and balance on the executive branch.

The Brennan Center for Justice at New York University put out a major new report last month on the 123 statutory provisions that allow a president to invoke emergency powers. Just days later, Trump began threatening to declare a national emergency to get the military to build a border wall if Congress won’t give him the money to do it. Talk about timing.

At an all-day convening of experts Wednesday devoted to exploring the issue, however, the major villain wasn’t Trump; it was a Congress that has consistently allowed the executive branch to encroach on its powers.

“Congress has become less functional,” said Avril Haines, who served as Barack Obama’s deputy national security advisor and deputy CIA director. “And presidents have moved into the breach.”

Where Congress, for instance, once defended its prerogative to declare war, it has effectively ceded control by allowing three presidents to unilaterally broaden the scope of the Authorization to Use Military Force it passed after the 9/11 terror attacks.

Haines said the AUMF and the two major legislative sources of presidential emergency power — the National Emergencies Act and the International Emergency Economic Powers Act — each qualifies as “a piece of legislation that was intended to pull more power back to Congress but actually ended up giving more authority to the executive.”

It’s a historical fact that American presidents never relinquish powers they or their predecessors have successfully asserted. (See, i.e., Obama Makes Bushism the New Normal, September 3, 2014.)

Haines succinctly explained why: “From the executive branch perspective, if you’re concerned about whether you have the authorities” that you just might need someday, “you do whatever you can to maintain those authorities.”

She acknowledged that such power-hoarding “leads to distortion” of the system of checks and balances. She suggested that Congress step in to make sure emergency powers are time-limited going forward.

Other experts also suggested that Congress provide some guidance on what does and does not qualify as a national emergency – as there’s no such definition now.

Liza Goitein, the co-director of the Brennan Center’s Liberty and National Security Program and convener of Wednesday’s meeting, noted that Trump has put his unique twist on the question of declaring a national emergency.

To the extent that it’s reasonable to grant a president the power to take emergency action, it’s when there’s no time for Congress to weigh in,

But in the current situation, Trump has announced that he is waiting to see if Congress will act before declaring a national emergency on the border to build the wall.

“It gets the entire principle behind emergency powers backwards,” Goitein said

The Brennan Center report focuses on emergency authorities that have been specifically approved by Congress – including two that Trump’s lawyers are said to be eyeing to get the wall built. (Both, however, are too limited to justify such a move, Goitein told the conference.)

But the even scarier-sounding presidential emergency powers, which Goietein addressed in an accompanying article in the Atlantic, are outlined in highly classified draft executive orders, proclamations and messages to Congress called Presidential Emergency Action Documents that presidential aides carry wherever the president goes – so they are one signature (now Trump’s) away from becoming operational. Goitein writes:

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.

Goitein continues:

It will fall to Jeff Sessions’s successor as attorney general to decide whether to rein in or expand some of the more frightening features of these PEADS. And, of course, it will be up to President Trump whether to actually use them—something no previous president appears to have done.

I asked a panel of former senior national security and defense officials at the event whether a declaration of martial law remains among today’s PEADS. And I asked Haines specifically if she had any regrets about any PEADS that Obama left in place, now that Trump is president.

Christopher Fonzone, a former legal adviser to Obama’s National Security Council, waved me off. “I really think it’s going to be tough to talk about the substance of what PEADS are,” he said, citing their classification.

And Haines ducked my question. “I have a lot of regrets in my life,” she said.

Saikrishna Prakash, a University of Virginia law school professor, discussed how today’s presidential emergency powers have almost no historical basis.

The Constitution enumerates a total of three emergency powers for the president, he said:  to make recess appointments, to issue pardons, and to summon Congress back into session.

“If there’s a crisis, Congress should be summoned,” Prakash said of the presidency as originally envisioned.

In short, he said, the presidency is weak, Congress has vast authority, and if the president feels the need to act without congressional authority, he has to ask Congress to absolve him afterward.

Over time, it’s become completely different, Prakash said. “The president claims some sort of vast and unspecified authority to deal with emergency; Congress has delegated that authority by statutes; … and presidents never say they’re sorry.”

What didn’t come up Wednesday was what if anything the public or civil society or the opposition party could do if Trump declares a national emergency with wide-ranging effects — say, if there’s a terror attack, or if he feels particularly vulnerable politically.

Seems to me that someone should organize a teach-in to grapple with that possibility.

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