President Trump has asserted that Article II of the Constitution "gives me all kinds of powers" and enables him as President to "do anything I want," but that "we haven't had to use it yet."
It is the “yet” part of these statements – which Trump has made numerous times - that should cause alarm in BOTH conservatives and progressives, especially since the use of EMERGENCY powers might lead to a President acting outside the bounds of the Constitution and create precedents which could become increasingly harder to undo.
Melania Trump once said of her husband, "If you hit him, he will hit you back ten times harder."
Unfortunately, this has actually been the way in which Donald Trump has governed the country as its President.
Instead of reconciling our many differences, he has sought to defeat political opponents by overpowering them - even members of his own party - as if these fellow Americans were enemies to be vanquished through the strength of his will.
He has raised the stakes beyond merely that "nobody is above the law":
It is as though Donald Trump is engaging in a test of wills with the institutions of the United States of America by constantly upping the ante against anybody or anything that opposes him, to the point that it has now become an "all or nothing" issue of one person's will against the collective willpower of the American people, as expressed through our constitutional processes.
Americans usually take comfort in the thought that "it can't happen here" because our constitutional system would prohibit authoritarianism.
Yet incredibly, and unbeknownst to most of us, thirty states of emergency are actually in effect in the United States TODAY, even though their original purposes have expired; and there are as many as 123 statutory emergency powers available to a President which have accumulated over centuries; that lay dormant, but which Justice Robert Jackson said in his dissent regarding the internment of Japanese Americans under President Roosevelt's emergency declaration "[lie] about like a loaded weapon" ready for misuse.
These emergency powers range from things which are glaringly obvious to those which would be invisible to the public: from regulating agricultural exports; to quietly labeling individual American citizens as "terrorists" and then freezing their bank accounts and concurrently denying them the ability to make contracts - which could deny them the most basic essentials of life such as housing, medical treatment, or even food; putting groups such as Muslims or Chinese into internment camps; shutting down the internet (or more insidiously, just parts of it); up to detaining Americans indefinitely without trial or commanding the National Guard and military onto the streets of the United States under scenarios of national emergencies and martial law. (For a fuller explanation Presidential emergency powers, see Elizabeth Goitein's excellent article in the January/February 2019 issue of The Atlantic.)
It is the juxtaposition of the emergency powers which have accrued to the executive branch over centuries with authorities that Donald Trump is unilaterally assuming under the unitary executive theory that is especially dangerous.
While there has always been an undertone of extra-constitutional militarism and street thuggery to his rhetoric, Trump has recently started to create an atmosphere whereby a President can use direct military force against American citizens - such as his threats to use the military to "dominate the streets"; or actually doing so by clearing a path for his walk to a photo op in front of St. John's Episcopal Church.
So far the Trump administration has not been emboldened to defy a court order, but the President might try to "set aside" a judicial decision under what he might declare as a "national emergency" - which in turn might set into motion a process whereby the executive branch would later continue to ignore court orders because of the legal precedent it could claim had been set.
Most ominously, consider how the above assertions might be used under the pretense of an "emergency" by a President fighting for his political and legal life like a cornered animal - especially potentially coming from somebody who routinely asks for loyalty pledges to himself, pardons his political allies, labels the press "the enemy of the people," and calls his opponents "traitors" effecting "illegal, partisan coups."
As he campaigns for a second term President Trump himself needs to be pressed to demystify what he means by having the authority to do "anything I want" and to answer SPECIFIC questions concerning what powers he thinks Article II gives the executive branch (and particularly what actions he thinks a President is EXCLUDED from taking); and Congress and other entities need to be proactive versus reactive BEFORE the President might attempt to contrive an artificial "emergency" under Article II.
Although this may be ridiculed as "unnecessary hysteria over settled law," it was not so long ago that what is now being challenged by the Trump administration was also regarded as "settled."
The opaque accrual of Presidential emergency powers which has evolved historically in such an unknown manner - and which is so naively taken for granted as benign because of the checks and balances built into our constitutional system - needs to be scrutinized and scrubbed by Congress to the bare minimum truly required to protect national security in conjunction with redressing the powers the executive branch has unilaterally assumed under the unitary executive theory.
© 2020 Alex Crisafulli. All rights reserved.