If the last two years have taught us one thing, it is to take nothing for granted, particularly regarding the stability and resilience of our Republic. We are now witnessing firsthand in Wisconsin and Michigan how one of our two major political parties has become wholly captive to corporate dominance, and how it will behave when its power is taken away by ordinary voters. Instead of accepting the verdict of the people, it will subvert and alter existing law in order to retain power. It will do this in the face of and in spite of widespread, loud public opposition, aided by its own overriding imperative to exert control at all costs.
As John Nichols put it this week in The Nation, the Republican Party is no longer a political “party” per se, but a mere vehicle, a conspiracy for seizing and holding power on behalf of a tiny sliver of the wealthiest among us. If that wasn’t evident from the grotesquely skewed tax cut inflicted on the American population in 2016—the sole “achievement” of the Republicans’ entire tenure in this Congress—then the assaults on Democracy underway in Wisconsin, Michigan and North Carolina prove it beyond any doubt, as gerrymandered Republican legislators working in the dark hours of the night hastily rewrite the powers afforded to their newly-elected Democratic state governors. An insolent autocracy heedless to the interests or well-being of the American people is no longer “creeping” into government from the shadows. Let’s be clear: it is upon us.
This prevailing sentiment among Republicans that they can act to subvert our country’s institutions without any fear of consequence has its apotheosis in the persona of Donald Trump. There has never before been an occupant of the Oval Office so utterly contemptuous of our Constitutional norms, or even the concept of representative government. No other President has displayed such wanton admiration for murderous dictators accountable to no one but themselves. And now, finding himself under threat by the very operation of those laws he despises, there is little if any reason to expect him to behave any less haughtily, and nothing to keep him from grasping for any tool in the Executive’s formidable arsenal to maintain his hold on power.
Elizabeth Goitein co-directs the Brennan Center for Justice’s Liberty and National Security Program. Writing for The Atlantic, she reminds how Trump’s anti-democratic rhetoric reached its fever pitch in the weeks leading up to the November midterm elections:
Most of his weapons were rhetorical, featuring a mix of lies and false inducements—claims that every congressional Democrat had signed on to an “open borders” bill (none had), that liberals were fomenting violent “mobs” (they weren’t), that a 10 percent tax cut for the middle class would somehow pass while Congress was out of session (it didn’t). But a few involved the aggressive use—and threatened misuse—of presidential authority: He sent thousands of active-duty soldiers to the southern border to terrorize a distant caravan of desperate Central American migrants, announced plans to end the constitutional guarantee of birthright citizenship by executive order, and tweeted that law enforcement had been “strongly notified” to be on the lookout for “ILLEGAL VOTING.”
Without becoming unduly alarmist, Goitein soberly lays out exactly what Trump could do with the Presidential powers he has been entrusted with, should he feel threatened by the prospect of impeachment, for example, preceding the election in 2020. The powers he could exert are reserved to him in the context of declaring a “National Emergency.” And they are considerable.
Unknown to most Americans, a parallel legal regime allows the president to sidestep many of the constraints that normally apply. The moment the president declares a “national emergency”—a decision that is entirely within his discretion—more than 100 special provisions become available to him. While many of these tee up reasonable responses to genuine emergencies, some appear dangerously suited to a leader bent on amassing or retaining power. For instance, the president can, with the flick of his pen, activate laws allowing him to shut down many kinds of electronic communications inside the United States or freeze Americans’ bank accounts. Other powers are available even without a declaration of emergency, including laws that allow the president to deploy troops inside the country to subdue domestic unrest.
Goitein notes that these powers—most of them legislatively granted—are grounded in the assumption that the President will use them in the country’s best interests. But Trump has given no one the impression that he has anyone’s interests but his own in his mind at any given time. So given his narcissistic mindset, given his past behavior and given his repeatedly demonstrated instability in the face of threats to his own personal power, there is no reason to believe that he would do anything but abuse these powers to save his own skin.
The problem that Goitein sees is that we are in uncharted territory with Trump. No one before him has so openly embraced sheer brutality as a solution to impediments to his policies. And while he has found resistance in the Courts, he has gotten away with more than anyone expected, with policies effectively sanctioning Gestapo-like behavior by our immigration officials, the forcible kidnapping of children at our borders, and his shocking repudiation of the historical right to asylum. Those are all examples of how he responds to external threats. The power of declaring a “state of emergency” allows him to turn those impulses inward, towards American citizens who displease or oppose him.
This has happened before in our history—rarely, but it has happened. Franklin Roosevelt’s internment of American citizens of Japanese descent during World War Ii, Bush II’s program of wiretapping and spying on the American citizens following the September 11th attacks, and Lincoln’s suspension of habeas corpus during the Civil War are all examples cited by Goitein. And when these powers were challenged, the Supreme Court has, for the most part either genuflected to them or avoided the discussion. We have a much more Executive-friendly Court now that an any time in living memory, and there is no reason to believe the conservative wing that dominates it would act to restrain these powers.
In 1976 Congress made an effort to dilute the power of the Executive Branch to exercise these powers. They failed. There are currently thirty states of emergency still in effect today.
As a result, the president has access to emergency powers contained in 123 statutory provisions, as recently calculated by the Brennan Center for Justice at NYU School of Law, where I work. These laws address a broad range of matters, from military composition to agricultural exports to public contracts. For the most part, the president is free to use any of them; the National Emergencies Act doesn’t require that the powers invoked relate to the nature of the emergency. Even if the crisis at hand is, say, a nationwide crop blight, the president may activate the law that allows the secretary of transportation to requisition any privately owned vessel at sea. Many other laws permit the executive branch to take extraordinary action under specified conditions, such as war and domestic upheaval, regardless of whether a national emergency has been declared.
While most of these statutory powers have never been used, again we come back to the fact that we now have a President who clearly feels unconstrained by the rule of law. Just this week we heard Rex Tillerson lament that Trump repeatedly would order him to commit illegal actions. Tillerson had to contain Trump over and over again by telling him his proposed actions were contrary to law.
And here, Goitein takes quite a serious turn, in describing how such powers can be abused. She recalls how George W. Bush leveraged his emergency powers after 9/11 to mobilize the nation for a trumped up war in Iraq, which had nothing to do with those attacks. The consequences of that war are still with us.
There is an ominous provision in the Communications Act dating back to 1934 that permits a President to “shut down or take control of any facility or station for ‘wire communication’. ” Yes, some government officials have reasonably interpreted that to mean the President would be authorized to shut down the Internet, or impede access to it. Goiten says that is not an unreasonable interpretation.
Although interpreting a 1942 law to cover the internet might seem far-fetched, some government officials recently endorsed this reading during debates about cybersecurity legislation. Under this interpretation, Section 706 could effectively function as a “kill switch” in the U.S.—one that would be available to the president the moment he proclaimed a mere threat of war. It could also give the president power to assume control over U.S. internet traffic.
That would include the ability to obstruct or bar access to social media sites by groups or individuals deemed to be in opposition to the President’s policies or actions. And under the International Emergency Economic Powers Act (IEEP), through which nearly all declarations of a state of emergency are made pursuant, it would also include the ability to restrict political opponents’ or critics’ access to travel (think of the “no fly” list).
The government also would have the ability to impede domestic access to particular websites, including social-media platforms. It could monitor emails or prevent them from reaching their destination. It could exert control over computer systems (such as states’ voter databases) and physical devices (such as Amazon’s Echo speakers) that are connected to the internet.
But a wholesale takeover of the Internet would not be necessary for Trump to inhibit or impede political opposition, in, say, a re-election campaign in which he found himself facing criminal charges and potential impeachment. And that is the scenario that seems increasingly probable as we approach 2020. Goitein posits a hypothetical where Trump, facing a worsening economy and popular discontent with his policies, drums up a phony threat from Iran that seizes the media’s attention. The threat is amplified by levels of magnitude on Fox News, in much same way the phony ”caravan” story was hyped. He hypes it to the point where he can justify declaring a state of emergency based on the supposed “threat” of Iran to the election process. Protests follow, Trump attacks the protestors on Twitter, ginning up his own base to commit acts of violence. Suddenly the National Guard is in our streets for Americans’ “protection.” Since turnout is severely depressed, Trump ekes out the election.
It might sound extreme and dystopian—and it is—but the point is, again, there is nothing to suggest that Trump would not behave exactly the way he has behaved thus far, stretching the limits of his Executive Powers to the extreme maintain to his hold on the Presidency, particularly when the alternative is indictment and probable jail time. There is no abuse this man would not countenance if he was advised—by Bolton, Miller or others—that he had these powers, if only he would exert them. And the pernicious impact of state propaganda in the form of Fox News and most “talk radio,” render Goitein’s hypothetical well within the realm of possibility.
The weaknesses of our Constitutional system have already been laid bare by this Administration and its enablers in the Republican Party. Goitein suggests that rather than dwelling on potential nightmare scenarios that the new Congress conduct a wholesale review of those Emergency Powers permitted the Executive under current law. Because there is nothing to stop Congress from re-writing these laws to prevent the subversion of our Democracy by a would-be tyrant willing to lash out against American citizens like a cornered rat who feels threatened by the usurpation of his power.
Nothing, that is, except the Republican Party.
