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Elizabeth Goitein @LizaGoitein
, 15 tweets, 4 min read Read on Twitter
1/ Emergency powers are supposed to save our democracy in a crisis. But in the wrong hands, they could be used to end it.…
2/ I started researching emergency powers in early 2017. I’d worked on civil liberties issues for over a decade, but I had no idea that there are 100+ special laws that can go into effect the moment a president declares a national emergency.…
3/ There are no limits on the president’s ability to declare a national emergency, and while Congress can vote to end a state of emergency, it hasn’t even attempted to do so in over 40 years.
4/ Lots of emergency powers are available even without a declaration of national emergency, during specified conditions like war or public health crises. They, too, become available to the president when *he* decides he needs them.
5/ Some of the emergency powers Congress has enacted seem like reasonable responses to crises; others are the stuff of a would-be authoritarian’s dreams. For example, the president can shut down or take over “wire communications facilities” if he proclaims a threat of war.
6/ In 1942, when that law was passed, “wire communications” meant telephones and telegrams. Today, it could mean the Internet, which means Trump could potentially shut down or take control of Internet traffic inside the United States.
7/ Another law, the Insurrection Act, allows the president to deploy troops inside the U.S. to suppress any “unlawful combination” or “conspiracy” that “obstructs” or “opposes” the execution of federal law.
8/ Those are pretty vague terms, so here’s a thought experiment: What would Trump consider a “conspiracy” to “oppose” execution of a federal law? How about a peaceful protest expressing opposition to a Trump executive order?…
9/ And can someone tell me why *any* president should *ever* have the ability to suspend the law that prohibits government testing of chemical and biological agents on unwitting human subjects? Because that’s an emergency power, too.
10/ Yes, the courts are there as a safeguard against abuse, but the current Supreme Court would likely be pretty deferential toward presidential exercises of emergency powers—particularly when those powers were granted by Congress.
11/ In theory, Congress also provides a check. A 1976 law requires Congress to meet every 6 months while an emergency is in effect to “consider a vote” on ending it. Congress hasn’t done that even once. And so today, 31 states of emergency are in effect.…
12/ Still, so far, modern presidents have shown surprising restraint. Almost all declarations were used to trigger a single power: economic sanctions. Per the @BrennanCenter's analysis, most of the powers available when POTUS declares a national emergency have never been used.
13/ Will Trump—and every future president—show the same restraint? That’s a gamble I personally don’t think we should take. Congress needs to step in.
14/ Of course, this Congress isn’t likely to pass a new statutory framework for emergency powers. But forward-looking committee chairs can get the process started by reviewing existing powers and declarations. And the House can tailor appropriations bills accordingly.
15/15 This isn’t the kind of thing Congress likes to spend its time on. But we’re in uncharted political waters, and many members have been seeking ways to shore up democracy’s safeguards. Fixing the emergency powers system would be a good place to start.…
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