At the #demdebates, Tom Steyer says he would use “the emergency powers of the presidency” to fight climate change. Here are a few observations about what that might mean, and some questions. 1/9
There are 123 statutory authorities that become available to a president when s/he declares a national emergency, as we catalogued at the @BrennanCenter last December. 2/9 brennancenter.org/our-work/resea…
These powers cover a lot of ground, but they’re not limitless in their reach. None of them is intended, designed, or well-suited to address climate change. 3/9
The Stafford Act is another statutory emergency power. It’s useful for freeing up resources to deal with isolated natural disasters. But it doesn’t authorize the kinds of long-term policy changes we need to combat climate change. 4/9
How about the Constitution? It authorizes Congress to suspend habeas corpus and provide for calling forth the militia to execute the law, suppress insurrections, and repel invasions... but it doesn’t give the president any express emergency powers. 5/9
That leaves the idea of “inherent” constitutional emergency powers, a notion embraced by some conservative legal theorists and defenders of executive prerogative. It’s a controversial theory with significant implications. 6/9
Any presidential candidate, Democrat or Republican, who believes the president has inherent constitutional authority to deal with climate change or any other emergency powers should answer these questions: 7/9
Where in the Constitution do you find the source of this power? What do you consider to be the criteria for invoking it? What is the full range of actions that it authorizes, & what limits apply? Do you acknowledge Congress’s authority to legislate restrictions on that power? 8/9
Climate change is the biggest threat we face today. But as Trump has shown, emergency powers and other claims of broad presidential power can be dangerous. It’s important to know what powers the candidates believe presidents have, and where they think the limits are. 9/9
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The Defense Department has confirmed that U.S. Marines detained a civilian—reportedly an Army veteran who crossed a yellow tape boundary on his way to a Department of Veterans Affairs office. This is an apparent violation of the Posse Comitatus Act. 1/16 reuters.com/world/us/us-ma…
The Posse Comitatus Act (PCA) bars federal armed forces from directly participating in law enforcement activities unless “expressly authorized” by statute or by the Constitution. It’s a critical protection for individual liberty and democracy. 2/16
What constitutes a law enforcement activity for purpose of the PCA isn’t always clear. But activities that unambiguously fall within that category include arrests, searches, and seizures of persons or property. 3/16 congress.gov/crs-product/R4…
A federal judge has issued a temporary restraining order (TRO) requiring Trump to return control of the National Guard to CA Governor Newsom. The order is accompanied by a powerful opinion that affirms the rule of law, separation of powers, and the First Amendment. 1/23
U.S. District Judge Charles Breyer found that CA is likely to succeed on the merits of some of its claims, which is the first and often most important criterion for issuing a TRO. To start, the law Trump relied on to federalize the Guard didn’t give him that authority. 2/23
That law, 10 USC 12406, applies only if there’s an invasion by a foreign nation or a “rebellion or danger of a rebellion against the authority of the Government of the United States,” or if the President is unable to execute federal law without using the military. 3/23
Trump has federalized at least 2,000 National Guard forces and reportedly plans to deploy troops to Los Angeles over Governor Newsom’s objections. If that happens, it will be the first time since 1965 that a president has sent troops into a state without a state request. 1/19
That’s alarming enough. But Trump has also authorized deployment of troops anywhere in the country where protests against ICE are occurring or are likely to occur, even if they are entirely peaceful. That is unprecedented and a clear abuse of the law. 2/19
To back up: Presidents have deployed troops for purposes of quelling unrest or executing the law only 30 times in U.S. history. The Brennan Center has published a guide compiling and annotating those instances. 3/19 brennancenter.org/our-work/resea…
Yesterday the Brennan Center filed an amicus brief in support of four companies that challenged Trump’s imposition of worldwide tariffs under the International Emergency Economic Powers Act (IEEPA). 1/15 brennancenter.org/our-work/court…
Trump imposed the tariffs by declaring a national emergency under the National Emergencies Act (NEA), which gives him access to standby powers contained in 150 different provisions of law, including IEEPA. 2/15 brennancenter.org/our-work/resea…
The main issue currently before the court is whether IEEPA authorizes tariffs at all. The law doesn’t use the word “tariffs,” but the Trump administration wants the court to read sweeping powers into the law that aren’t explicitly conferred. 3/15
What’s this new executive order directing the Defense Department to take over huge swaths of public land on the border? Simple: it’s yet another abuse of emergency powers—this one seemingly designed to make an end-run around the Posse Comitatus Act. 1/17 whitehouse.gov/presidential-a…
Listing all of Trump’s abuses of emergency powers thus far would make this thread far too long. But the country is still reeling from the latest one: emergency tariffs imposed on every country in the world, including islands inhabited primarily by penguins. 2/17
And then there’s Trump’s abuse of the Alien Enemies Act—a law that applies only during an armed attack by a foreign nation or government—to stealthily deport 137 Venezuelans, 75% of whom have no criminal record whatsoever, to an El Salvador prison that’s a living hell. 3/17
To get around the normal legal process for imposing tariffs on Canada & Mexico, Trump declared national emergencies and invoked the International Emergency Economic Powers Act (IEEPA). Another day, another executive action, another abuse of power. 1/15
IEEPA is available only to address an “unusual and extraordinary threat” to our “national security, foreign policy, or economy.” So Trump declared that Canada… the country he has mocked as the 51st state… poses an unusual and extraordinary threat to our national security. 2/15
Got that? In his social media posts, Trump says Canada is barely a “viable Country.” But in declaring a national emergency, he says that Canada’s power over the United States is so great that it threatens our very security. Quite a concession to our northern neighbor. 3/15