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CONNECTIONS: The presidential power grab

It appears that national emergencies were declared in time of war or when the emergency was clear to all, dire, and demanded immediate attention. The power grab was for a specific purpose and time-limited. 

About Connections: Love it or hate it, history is a map. Those who hate history think it irrelevant; many who love history think it escapism. In truth, history is the clearest road map to how we got here: America in the 21st century.

By the time this column posts, we may know if the president declared a national emergency. What is a national emergency, what powers does it grant the president and when has it happened before?

The Constitution grants the president the right to declare a national emergency but does not expressly grant him any additional powers as a result. Nevertheless, historically, presidents who declared national emergencies assumed additional powers. In fact, it can be argued that each president declared the emergency for the purposes of assuming additional powers, and circumventing Congress. Some describe the declaration as a method for the executive to assume Article 1 powers—that is, the powers the Constitution grants the legislative branch.

Abraham Lincoln by Alexander Gardner

For example, in 1861, at the onset of the Civil War, President Abraham Lincoln declared a national emergency and suspended habeas corpus (the obligation of the government to show cause or release an arrestee. Suspension of habeas corpus allows the government to hold an arrestee indefinitely without trial). The Supreme Court overruled Lincoln, but he ignored it. Habeas corpus was suspended for the duration of the Civil War.

In 1917, as the United States entered World War I, President Woodrow Wilson declared a state of emergency and seized control of shipping to assure food, raw materials and equipment reached the European front.

In 1933, during the Great Depression, President Franklin Delano Roosevelt declared a national emergency and closed the banks. It was an effort to stop the run on the banks; it was a temporary measure, and banks reopened after Congress passed regulations.

After the attack on Pearl Harbor, Dec. 7, 1941, FDR again declared a national emergency. He interned all Japanese Americans residing on the West Coast. The Supreme Court upheld the decision, and Japanese Americans remained in internment camps during World War II.

Harry S. Truman in 1945

During the Korean War, President Harry Truman declared an emergency and seized the steel mills. He argued he could not conduct a war without proper equipment for the fighting man. The Supreme Court overturned the president 6–3. After supporting similar moves by Wilson and FDR, the court ruled a president had no right to seize private property without Congress.

After 9/11, President George W. Bush declared a national emergency “blocking property and prohibiting transactions with persons who commit, threaten to commit or support terrorism.” Bush’s action was more closely related to the International Emergency Economic Powers Act invoked by President Carter in response to the Iran hostage crisis in 1979.

It appears, from the examples given, that national emergencies were declared in time of war or when the emergency was clear to all, dire, and demanded immediate attention such as the hostage-taking and the panic during the Great Depression. Given exigency, presidents took powers generally reserved for another branch of government or not within the government’s right at all. The power grab was for a specific purpose and time-limited.

How the other branches of government reacted—the legislative and judicial—adhered to the old adage “where you stand depends on where you sit.” For example, Truman did as Wilson and FDR did with a different response. When Democratic President Barack Obama declared a state of emergency, the Republican Congress said it was a power grab pure and simple. Obama wanted to be “an imperial president” who wanted to “rule by fiat” and avoid Congress. In the case of a Republican president, Republican senators are urging Trump to declare the emergency.

Some welcome it as a way out of the impasse that closed the government. Others warn it is a dangerous step, an assault on our Constitution. Some argue Trump has every right; others await judicial intervention that will stop him. Some argue that there is in fact no emergency; others point to history and claim other presidents did it and that has a normalizing effect on what is an extraordinary measure.

Sen. Mitch McConnell, R-Ky.

These times are different and past actions were taken in different context. We have a president under investigation for, among other things, profiting from the presidency and making decisions more favorable to foreign powers. We live in a time when the Senate has cheerfully abdicated its powers. It no longer exercises its role as a check and balance on executive power. In an effort to explain the dangerous tilt, the Senate majority leader Mitch McConnell is said to be acting like the caddie at a Trump golf course. Caddie at a Trump golf course or butler at Mar-a-Lago, whatever the analogy, when McConnell refused to send any bill to the president that he would not sign, McConnell threw the Constitution away, ceded the power of the legislative branch to the executive, and called for a new form of government.

As an aside, here is how it should work. The Constitution established checks and balances at every step: The president can veto a bill and the Senate has the right to override the veto. Ergo, McConnell could have ended the government shut down the day after Trump declared it.

At this time, in this context, declaring a national emergency is a simple power grab. However, the presidency is THE bully pulpit. What the president says, however demonstrably false, will be believed by a percentage of our population. Without the Senate, House objections to “an imperial presidency” will be ineffective, and the judiciary may be ignored. Then what?

Times up; sound the alarm; bang the drum, there is a national emergency. If this is how our democracy dies, Trump may be the immediate beneficiary, but he is not the only cause.

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