John Whitehead's Commentary
Rule by Fiat: National Crises, Fake Emergencies and Other Dangerous Presidential Powers
“When the President does it, that means that it is not illegal.”—Richard Nixon
Who pays the price for the dissolution of the constitutional covenant that holds the government and its agents accountable to the will of the people?
We all do.
This ill-advised decision by President Trump to circumvent the Constitution’s system of checks and balances by declaring a national emergency in order to build a border wall constitutes yet another expansion of presidential power that exposes the nation to further constitutional peril.
It doesn’t matter that the legal merits of this particular national emergency will be challenged in court.
The damage has already been done.
As reporter Danny Cevallos points out, “President Donald Trump only had to say ‘national emergency’ to dramatically increase his executive and legal authority. By simply uttering those words … Trump immediately unleashed dozens of statutory powers available to a president only during a state of emergency. The power of the nation's chief executive to declare such an emergency knows few strictures — it was designed that way.”
We have now entered into a strange twilight zone where ego trumps justice, propaganda perverts truth, and imperial presidents—empowered to indulge their authoritarian tendencies by legalistic courts, corrupt legislatures and a disinterested, distracted populace—rule by fiat rather than by the rule of law.
This attempt by Trump to rule by fiat merely plays into the hands of those who would distort the government’s system of checks and balances and its constitutional separation of powers beyond all recognition.
This is about unadulterated power in the hands of the Executive Branch.
This is about corporate greed disguised as a national need.
Most of all, however, this is about the rise of an “emergency state” that justifies all manner of government tyranny and power grabs in the so-called name of national security.
This is exactly the kind of concentrated, absolute power the founders attempted to guard against by establishing a system of checks of balances that separates and shares power between three co-equal branches: the executive, the legislative and the judiciary.
“The system of checks and balances that the Framers envisioned now lacks effective checks and is no longer in balance,” concludes law professor William P. Marshall. “The implications of this are serious. The Framers designed a system of separation of powers to combat government excess and abuse and to curb incompetence. They also believed that, in the absence of an effective separation-of-powers structure, such ills would inevitably follow. Unfortunately, however, power once taken is not easily surrendered.”
The Constitution invests the President with very specific, limited powers: to serve as Commander in Chief of the military, grant pardons, make treaties (with the approval of Congress), appoint ambassadors and federal judges (again with Congress’ blessing), and veto legislation.
In recent years, however, American presidents have anointed themselves with the power to wage war, unilaterally kill Americans, torture prisoners, strip citizens of their rights, arrest and detain citizens indefinitely, carry out warrantless spying on Americans, and erect their own secretive, shadow government.
The powers amassed by each past president and inherited by each successive president—powers which add up to a toolbox of terror for an imperial ruler—empower whomever occupies the Oval Office to act as a dictator, above the law and beyond any real accountability.
Consider some of the presidential powers—which have been acquired through the use of executive orders, decrees, memorandums, proclamations, national security directives and legislative signing statements and can be activated by any sitting president—that have allowed past presidents to operate above the law and beyond the reach of the Constitution.
The power to kill. As the New York Times concluded, “President Obama, who came to office promising transparency and adherence to the rule of law, has become the first president to claim the legal authority to order an American citizen killed without judicial involvement, real oversight or public accountability.” Obama’s kill lists—signature drone strikes handpicked by the president—have been justified by the Justice Department as lawful because they are subject to internal deliberations by the executive branch. “In other words,” writes Amy Davidson for the New Yorker, “it’s due process if the President thinks about it.”
The power to wage war. Ever since Congress granted George W. Bush the authorization to use military force in the wake of 9/11, the United States has been in a state of endless war without Congress ever having declared one. Having pledged to end Bush’s wars, Barack Obama extended them.
The power to torture. Despite the fact that the Bush Administration’s use of waterboarding as a torture tactic was soundly criticized by Obama, the Obama Administration refused to hold anyone accountable for participating in the rendition and torture programs. In the absence of any finding of criminality, the authorization of such torture tactics remain part of the president’s domain—should he or she ever choose to revive it.
The power to spy on American citizens. In the wake of the 9/11 terror attacks, President Bush secretly authorized the National Security Agency to carry out surveillance on Americans’ phone calls and emails. The Bush Administration claimed that the Constitution gives the president inherent powers to protect national security. The covert surveillance continued under Obama and is full force under Trump.
The power to indefinitely detain American citizens. In 1942, President Franklin D. Roosevelt issued an executive order requiring that all Japanese-Americans be held in internment camps. While that order was later rescinded, the U.S. Supreme Court declared it to be constitutional. The ruling has never been overturned. Pointing out that such blatantly illegal detentions could happen again—with the blessing of the courts—Justice Scalia warned, “In times of war, the laws fall silent.” In fact, each National Defense Authorization Act enacted since 2012 has included a provision that permits the military to detain individuals—including Americans citizens—indefinitely without trial.
The power to strip American citizens of their constitutional rights. The Bush Administration claimed it could strip American citizens of their constitutional rights, imprison them indefinitely, and deny them legal representation simply by labeling them as enemy combatants. While the Obama Administration jettisoned the use of the term “enemy combatant,” it persisted in defending the president’s unilateral and global right to detain anyone suspected of supporting terrorist activities.
The power to secretly rewrite or sidestep the laws of the country. Secret courts, secret orders, and secret budgets have become standard operating procedure for presidential administrations in recent years. A good case in point is Presidential Policy Directive 20, a secret order signed by President Obama as a means of thwarting cyberattacks. Based on what little information was leaked to the press about the clandestine directive, it appears that the president essentially put the military in charge of warding off a possible cyberattack.
The power to transform the police into extensions of the military and indirectly institute martial law. What began in the 1960s as a war on drugs transitioned into an all-out campaign to transform America’s police forces into extensions of the military. Every successive president since Nixon has added to the police’s arsenal, tactics and authority. In fact, the Trump Administration has accelerated police militarization by distributing military weapons and equipment to police and incentivizing SWAT team raids and heavy-handed police tactics through the use of federal grants and asset forfeiture schemes.
The power to command the largest military and intelligence capabilities in the world and, in turn, “wag the dog.” As Professor Marshall points out:
In his roles as Commander-in-Chief and head of the Executive Branch, the President directly controls the most powerful military in the world and directs clandestine agencies such as the Central Intelligence Agency and National Security Agency. That control provides the President with immensely effective, non-transparent capabilities to further his political agenda and/or diminish the political abilities of his opponents. Whether a President would cynically use such power solely for his political advantage has, of course, been the subject of political thrillers and the occasional political attack. President Clinton, for one, was accused of ordering the bombing of terrorist bases in Afghanistan to distract the nation from the Lewinsky scandal, and President Nixon purportedly used the Federal Bureau of Investigation to investigate his political enemies. But regardless whether such abuses actually occurred, there is no doubt that control of covert agencies provides ample opportunity for political mischief, particularly since the inherently secretive nature of these agencies means their actions often are hidden from public view. And as the capabilities of these agencies increase through technological advances in surveillance and other methods of investigation, so does the power of the President.
The power to declare a national emergency. The seeds of this present madness were sown more than a decade ago when George W. Bush stealthily issued two presidential directives that granted the president the power to unilaterally declare a national emergency, which is loosely defined as "any incident, regardless of location, that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the U.S. population, infrastructure, environment, economy, or government functions." Moreover, that national emergency can take any form, can be manipulated for any purpose and can be used to justify any end goal—all on the say so of the president. For instance, back in 1952, President Harry S. Truman tried—and failed—to use a national emergency declaration to seize control of the country’s steel mills. He lost when the Supreme Court ruled 6-3 in Youngstown Sheet & Tube Co. v. Sawyer against the presidential power grab.
Be warned: none of these powers expire at the end of a president’s term. They remain on the books, just waiting to be used or abused by the next political demagogue.
All of these imperial powers amassed by Trump’s predecessors—to kill American citizens without due process, to detain suspects (including American citizens) indefinitely, to strip Americans of their citizenship rights, to carry out mass surveillance on Americans without probable cause, to wage wars without congressional authorization, to suspend laws during wartime, to disregard laws with which he might disagree, to conduct secret wars and convene secret courts, to sanction torture, to sidestep the legislatures and courts with executive orders and signing statements, to direct the military to operate beyond the reach of the law, to establish a standing army on American soil, to operate a shadow government, to declare national emergencies for any manipulated reason, and to act as a dictator and a tyrant, above the law and beyond any real accountability—have become a permanent part of the president’s toolbox of terror.
Thus, Trump is not the first president to weaken the system of checks and balances, sidestep the rule of law, and expand the power of the president. He is just the most recent.
To our detriment, every successive occupant of the Oval Office since George Washington, who issued the first executive order, has expanded the reach and power of the presidency and made our republic that much more vulnerable to those who would abuse those powers in the future.
As Professor Marshall explains, “every extraordinary use of power by one President expands the availability of executive branch power for use by future Presidents.” Moreover, it doesn’t even matter whether other presidents have chosen not to take advantage of any particular power, because “it is a President’s action in using power, rather than forsaking its use, that has the precedential significance.”
In other words, each successive president continues to add to his office’s list of extraordinary orders and directives, granting him- or herself near dictatorial powers.
There’s no point debating which politician would be more dangerous with these powers.
As I point out in my book Battlefield America: The War on the American People, the fact that any individual—or branch of government—is empowered to act like a dictator is danger enough.