From seizing control of the internet to declaring martial law, President Trump may legally do all kinds of extraordinary things
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.”
But will they? 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.
This edifice of extraordinary powers has historically rested on the assumption that the president will act in the country’s best interest when using them. With a handful of noteworthy exceptions, this assumption has held up. But what if a president, backed into a corner and facing electoral defeat or impeachment, were to declare an emergency for the sake of holding on to power? In that scenario, our laws and institutions might not save us from a presidential power grab. They might be what takes us down.
1. “A LOADED WEAPON”
The premise underlying emergency powers is simple: The government’s ordinary powers might be insufficient in a crisis, and amending the law to provide greater ones might be too slow and cumbersome. Emergency powers are meant to give the government a temporary boost until the emergency passes or there is time to change the law through normal legislative