On March 13, 2020, President Donald J. Trump declared a “national emergency” under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) to deal with the COVID-19 crisis. The Stafford Act is a 1988 amendment to the Disaster Relief Act of 1974.
42 U.S.C. § 5122 defines an “emergency” under the statutory provisions as “any occasion or instance for which, in the determination of the President, Federal assistance is needed to supplement State and local efforts and capabilities to save lives and to protect property and public health and safety, or to lessen or avert the threat of a catastrophe in any part of the United States.”
In 2019, the Brennan Center for Justice at the New York University School of Law published a comprehensive study titled “A Guide to Emergency Powers and Their Use” that deals with the powers enjoyed by the president under the 136 statutes that allow them to declare a “national emergency.” The findings of the Brennan Center report include:
The Brennan Center study is nothing short of disturbing. Under the far-reaching statutory authorizations for declaring a “national emergency” lays the ugly potential for dismantling our established constitutional protections through authoritarian declarations of national emergencies.
For example, in a December 2017 Lawfare blog, Catherine Padhi pointed out that the United States was then in its 39th straight year of a “continuous emergency state.”
For example, in 2017, President Trump became the seventh president to renew the 1979 “national emergency” declared by President Jimmy Carter in connection with the Iranian hostage crisis.
Worst yet, as pointed out by Ms. Padhi, President Trump, by the end of 2017, had already declared 128 Stafford Act national emergencies. Usually, a Stafford Act “emergency” would have to be requested by the governor of a state facing a disaster crisis. Still, the president has the inherent authority to declare a “national emergency,” as Trump did with the COVID-19 crisis.
National emergency declarations have an ugly potential for abuse.
The state of emergency declared in December 1950 by President Harry S. Truman to deal with the Korean War was used by three presidents to, as Ms. Padhi noted, “to wage war” in Vietnam—an American war that has since been criticized as both unnecessary and illegal.
President Trump has displayed an authoritarian penchant for using his executive emergency powers to fulfill his political objectives.
In a March 13, 2020 Politico blog, Josh Gerstein pointed out that within his first seven days of taking office, Trump used his emergency powers to implement what became known as the “Muslim travel ban.”
This past January, Trump used the Stafford Act and the National Emergencies Act of 1976 to divert $7.2 billion from Pentagon funding to build the “border wall” he pledged to construct during his 2016 presidential campaign.
On the other hand, The president unnecessarily delayed three months into the “COVID-19 crisis” before invoking the Stafford Act to declare a “national emergency” because it did not serve his political interests to recognize the medical emergency.
In fact, the day before the Stafford Act declaration, Trump provided reporters with this warning:
“We have very h6 emergency powers under the Stafford Act … And if I need to do something, I’ll do it. I have the right to do a lot of things people don’t even know about.”
Unfortunately, the Republican-appointed justices on the U.S. Supreme seem more than willing to let the president use his executive powers to do pretty much as he pleases. In a July 2019 decision reflecting this philosophy, the high court lifted a lower court ruling prohibiting the president’s attempt to expand the border wall by using $2.5 billion in unspent military funds.
Will President Trump use his emergency powers to suspend the 2020 presidential election? Or will he order the closing of polling stations in dense Democratic areas to hinder a large Democratic turnout?
These questions are ripe for public debate because this president has demonstrated not only a willingness but an eagerness to use his emergency powers to fulfill political objectives. Donald J. Trump is afraid COVID-19 will cost him a second presidential term. A scared Donald Trump is a dangerous President Donald Trump.
The president himself may become a “national emergency.”
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