When Trump declared a state of emergency under the Stafford Act and the National Emergency Act on March 13, he boasted “I have the right to do a lot of things that people don’t even know.”
Trump is right, some of the most powerful emergency powers in his possession may well be unknown to Americans because they are not included in any public law. Instead, they are specified in classified documents and are called “Presidential Emergency Operations Documents.”
Americans have recently learned that there are at least a hundred documents that authorize the president to have special powers in a state of national emergency. In fact, they are the ultimate power, without Congress or judicial checks and balances. These documents include draft announcements, executive orders and legislative proposals, which can be deployed quickly in a series of worst-case scenarios to allow the president to exercise extensive powers.
They are one of the government’s most secret secrets. There has never been a presidential emergency operation document published, leaked, and it seems that it has never been cited.
We Americans know very little about these secret powers. These powers may include suspension of habeas corpus, surveillance, intrusion into houses, enforcement of martial law, arrests without judicial arrest warrants, collective arrests, etc.; some powers may violate the law.
Secret power began to accumulate during the Eisenhower period, and has continued to increase thereafter. They are designed to “implement extraordinary presidential powers in response to extraordinary circumstances.” The original reason was to allow the US president to exercise the necessary control in the event of a nuclear war. Since the end of the Cold War, this possibility has become less and less.
In the Communications Act of 1934, a vague clause authorizes the president to suspend radio stations and other means of communication after “the President declares” a state of emergency. Powers like this have been rarely used. In the days following the September 11 attack, the then President Bush declared a state of emergency and invoked some emergency presidential powers, including the use of the National Guard and the US military.
Some of these actions appear to be unconstitutional, at least without the authorization of Congress. However, past Presidential Emergency Operations documents have tested how far the President’s power can be extended in an emergency.
For example, a Justice Department memo from the Lyndon-B-Johnson administration discusses a presidential emergency action document that will review news sent outside the United States. The memorandum pointed out that although there is no “clear statutory power” for such measures, “it can be said that based on the president’s power to maintain national security, these actions are legal after a devastating nuclear attack.” Then, it recommended that the president seek Congress’s approval of the legislation after issuing the order.
In view of the real possibility of using these powers in an epidemic crisis, the US Congress should insist on comprehensive monitoring of them to ensure that they comply with the basic principles of the law.
No matter who holds this position, the American people have the right to know what extraordinary powers the presidents think they have. It is time to set up a new special committee to study these powers and their potential for abuse, and to make recommendations to Congress, at least to establish strict supervision.
Before the election in November, public hearings should be held, especially when rumors are flying in the air. If the current President Trump feels that he may lose the election, he may intervene in the election or refuse to accept the election results.
The most obvious first question is, why should these far-reaching powers be kept secret? It must be kept secret not only from Congress, but also from the American people.
The second question is, why are these powers necessary?
Ultimately, should there be permanent congressional oversight for any proposal to invoke these powers? Under what severe conditions should the system of checks and balances between the executive, legislative, and judicial branches of the Americans be abandoned? Once the president is declared to have the ultimate power, what is needed to bring Americans back to a normal system of government?
Obviously, in any house of the US Congress, a standing committee can be authorized to conduct these hearings and investigations. However, a dedicated committee means special attention, a single focus, and a dedicated mission that is not interfered by other duties.
Americans do not live in ordinary political times. A president facing failure faces a huge temptation of power. He can create domestic or foreign incidents, and then declare a national emergency, so he can obtain dozens of extreme powers without restriction. This is something that the founders of the Americans or American laws do not know.
Some people regard this worry as an impossible thing. But many things that have happened in the past three and a half years seemed impossible until it happened.
When a report in the White House briefing room in April said, “When someone is the President of the United States, power is complete, so it must be.” Why should you doubt Trump’s intention to obtain extreme power?
Of course, regardless of party or candidate preferences, Americans will agree that the president has no reason to keep his ultimate power a secret from Congress, the media, and the American people.