Can Trump declare a state of emergency?

photo by Jonathan Ernst/Reuters

Upon reading Elizabeth Goitein’s “What the President Could Do If He Declares a State of Emergency” in The Atlantic, my dismay spurred me to write the previous post. In “Our democracy may not be as robust as we think,” I considered a few of the disasters Trump would be empowered to inflict on the American public by declaring a state of emergency.

After publishing the post, I began to read The New York Times, and almost immediately came upon Bruce Ackerman’s “No, Trump Cannot Declare an ‘Emergency’ to Build His Wall,” The title promised to contradict all I had written based on Goitein’s article.

But Ackerman’s article was nuanced.

He refers to laws that would seem to prevent the president from suspending civil liberties and imposing martial law or build his wall. The first is a provision in a statute of 1878 that expressly forbids the willful use of “any part of the Army or the Air Force to execute a law domestically” unless “authorized by the Constitution or an act of Congress.” Then he refers to another statute from 1807 that directs the secretary of defense to “ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel)” will “not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity … unless authorized by law.”

Would Trump respect these statutes? For that matter, is he even aware of them? Is anyone in his cabinet or on his staff sufficiently conversant with the law to attempt to curb his illegal impulses? We have seen Trump compose executive orders and issue commands without seeking legal advice, unaware that he may be violating the Constitution or the laws of the land. His M.O. is “Act first, think later (if ever).” Knowing the presidency confers great power, Trump seems to think there are no restraints. If he were to declare an emergency, there would be a delay before the courts or Congress could thwart him. 

Ackerman admits that the laws he refers to “do contain a series of carefully crafted exceptions to the general rule.” He concedes that Trump might take advantage of the exception which authorizes the military to detain suspected terrorists. That’s not a stretch, since the President has repeatedly characterized migrants who cross the border illegally as terrorists.

But Ackerman believes that “it is an unconscionable stretch to use this proviso to support using the military for operations against the desperate refugees from Central America seeking asylum in our country.” It is “unconscionable” for a moral and compassionate person, but Trump has repeatedly demonstrated that he is neither. He has already gassed them.

The National Emergencies Act “formalize[s] the power of Congress to provide certain checks and balances on the emergency powers of the President,” writes Ackerman. It gives the House the right to rescind a state of emergency declared by the president and requires the Senate to ratify within 15 days. It seems foolishly optimistic to trust that the the legislators in the current divided Congress could come together in both houses long enough to pass a resolution.

Yet, in a neat twist of logic, Ackerman argues that Congress would intervene:

Since President Trump’s “emergency” declaration would be a direct response to his failure to convince Congress that national security requires his wall, it is hard to believe that a majority of the Senate, if forced to vote, would accept his show of contempt for their authority.

Hmm. That remains to be seen.

Finally, Ackerman concedes that, despite the legal obstacles that confront him, Trump could well declare a state of emergency. “He will likely take the most irresponsible path possible, issuing his ‘national emergency’ through a tweet or a question-begging written pronunciamento.”

We have reason to be very concerned.

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Our democracy may not be as robust as we think

Imagine an internet that restricts access to certain websites, including social media platforms; search engines programmed to return only positive results to queries for “Trump”; email that is monitored, censored, even blocked. Does that sound fanciful, an impossibility in our American democracy? Perhaps. Yet the threat is real. 

Republican presidential candidate Donald Trump speaks during a campaign stop in Council Bluffs, Iowa, Tuesday, Dec. 29, 2015. (AP Photo/Nati Harnik)

The current issue of The Atlantic has an alarming report written by Elizabeth Goitein, the Co-director of the Liberty and National Security program at The Brennan Center for Justice. Goitein delineates the formidable emergency powers that are available to the president during a national emergency. The article, “What the President Could Do If He Declares a State of Emergency,” is an eye-opener. Everyone should read it.

By announcing the mere threat of war, for example, the president could assume control of all communications, most likely including the internet. He could do so by invoking a law that has been on the books since 1942, when fears of invasion during World War II justified extraordinary executive power. Though it didn’t exist when the law was written, the internet today is a vital component of communications.

The Brennan Center for Justice at the NYU School of Law has tallied 123 statutory provisions that grant the president broad emergency powers the moment he declares an emergency. Moreover, the president himself may determine what constitutes an emergency, because the statutes do not define it. In addition, there is no judicial review, nor a requirement that Congress ratify the president’s appropriation of exceptional power. Though Congress could vote to end the state of emergency with a two-thirds, veto-proof majority in both houses, what are the chances of that happening today?

The Insurrection Act of 1807, modified over the years, allows the president to employ military troops to enforce the authority of the federal government in cases of lawlessness, insurrection and rebellion. Trump could deploy armed forces domestically wherever he saw fit, because the statute does not define the specific conditions that constitute an emergency. The law is vague enough that Trump could, for example, authorize tanks to patrol the streets, rounding up political protesters and undocumented migrants. President Eisenhower invoked this law in 1957 to enforce desegregation of the schools in Arkansas with federal troops.

Authoritarians routinely declare states of emergency to impose their will forcefully on their people. Trump admires tyrants like Turkey’s Erdoğan and Duterte of the Philippines — why wouldn’t he follow their examples? After all, Trump is not inhibited by respect for or even knowledge of the law or of the rights and freedoms guaranteed by the Constitution.

Trump continues to attack the free press because it persists in calling him to account. The President riles up his followers and advocates the imprisonment of a political rival. He denies Muslims entry to the U.S. Clearly, Trump has no reverence for the basic freedoms of the press, speech and religion. Gotein cites Geoffrey R. Stone, a constitutional-law scholar at the University of Chicago, who observed that “It would not take much to upset the [Supreme Court’s] current understanding of the First Amendment.” 

“Indeed,” Goitein remarks wryly, “all it would take is five Supreme Court justices whose commitment to presidential power exceeds their commitment to individual liberties.”

Presidents in living memory have exercised emergency powers. Citing imminent threat to America, President Franklin Roosevelt defied the Constitution by interning U.S. citizens of Japanese descent. More recently, President George W. Bush authorized warrantless wiretapping and torture after 9/11.

In view of the latent perils to democracy that are now immediately available to President Trump, Gotein urges the American public to inform itself. We must insist that Congress repeal obsolete laws and limit the ones that contain the potential for abuse. The newly Democratic House must begin the review process in committees so that a future Democratic Senate can ratify the changes.

The time to act is now, before Trump or another president declares an emergency that gives him limitless power.

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A Blue Wave after all

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The immediate aftermath of the midterm elections left me uneasy, unable to fully celebrate the Democratic control of the U.S. House, despite my conviction before the election that without a Democratic victory in the House, democracy in America would surely be doomed.

The superstars, Stacy Abrams, Andrew Gillum and Beto O’Rourke were counted out as most returns were tallied on Wednesday. But high hopes dashed on Wednesday were revived by the weekend.

Andrew Gillum gave his concession speech on Thursday when it seemed he would not be Florida’s governor. But on Saturday, he took it back. Gillum and Stacy Abrams in Georgia are striving mightily against Republican opposition to have all votes counted and recounted in their races for the governor’s mansion. Both are close enough to trigger recounts. The same holds for the senate race in Florida.

As the vote counting continued, a Blue Tide began to wash over Republican-held seats, growing in size and strength. The House majority kept growing, and close races drew even closer. Democrats needed 23 seats to gain a majority in the House. As late vote counts rolled in, they garnered 32 seats, with 10 still not called.

The Blue Wave asserted itself: Democrats won 367 congressional seats— more than the Tea Party had in 2010. They flipped seven governorships, including in solid red Kansas (where they also captured a House seat). And when Florida and Georgia are finally finished counting and recounting, Democrats may gain one or two more governors.

Democrats scored trifectas — winning both houses of the state legislature and the governor — in six states: Colorado, Maine, Illinois, New York, New Mexico and Nevada. They will have full control in 13 states; the Republicans in 21.

Victories in state elections are important. State governments strongly influence health care, taxes, immigration and climate change in their states. They control redistricting, which is pivotal today, because gerrymandering currently causes Democrats to lose elections and seats, despite winning the popular vote.

Republican Martha McSally at first appeared to have won Jeff Flake’s senate seat in Arizona, but when all votes were counted a week after Election Day, Democrat Kyrsten Sinema became the first woman Arizona would send to the Senate and the first Democratic senator elected by the state in three decades.

The country moved left. Even in races the Republicans won, Democrats gained ground. As in 2016, Democrats won the popular vote. In Texas, Beto O’Rourke roused enthusiasm and came close to winning with a tremendous number of Democratic votes in a state that hasn’t elected a Democrat since Ann Richards became governor in 1991.

More reasons to celebrate the 2018 midterms:

  • Americans were more engaged than ever in the elections. They voted in record numbers, more than in any midterm since 1914.
  • They elected more than 100 women.
  • The new class of representatives is more diverse than any of its predecessors, including two Native American and two Muslim women.
  • They are young, and have lowered the average age of representatives by a decade.

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Everyday Life

Ben East Books

The novelist is exhausted. Whole worlds suggest themselves to her but that is all. The worlds do not appear. They do not come ready-made. They do not exist. They require focus and time and attention. The worlds must be pulled forth. Forged.

The novelist is exhausted. Characters whisper in his ear and run through caverns in his mind. They are mere glimpses, shadows that must be captured, examined, and word by word turned from slip and sliver into clay.

The novelist is exhausted. The worlds and characters must palpitate, conflict, concur, act and react, breath and bleed and weep.

The novelist is exhausted because the details that join these things require consciousness as they tarry in the unconscious, wistful faeries concealed by too much darkness or masked by the squint of too much light. The glimmer and the shadow must be shaded or lit just so.

The novelist can’t show…

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Will 2018 election results reflect the will of the people?

BallotBoxThe highly anticipated midterm elections of 2018 are less than two weeks away. There is general agreement that the election is extremely important, because the United States is at a crossroads. President Trump has snubbed traditional allies and cosied up to the usual adversaries. He has withdrawn from treaties that were painstakingly drawn up over a period of years. He has levied tariffs where once there was free trade. Until October, the stock market was soaring. Less than two weeks before the election, all the gains of 2018 have been wiped out. His tax cuts have ballooned the deficit to record-setting heights.

Democrats are hoping to regain control of Congress, but it won’t be easy, even though there are significantly more Democrats than Republicans. Republicans, however, vote in greater numbers than Democrats. Another complicating factor is that Democrats are clustered in densely populated cities while many Republicans are in sparsely populated rural areas, making a Republican vote worth significantly more than a Democratic one. For example, Republican Senator Lisa Murkowski of Alaska was re-elected with 111,000 votes; Democratic Chuck Schumer of New York was re-elected with 4.8 million votes. Yet they have equal power in the Senate.

Active voter suppression has wiped Democrats off the rolls in record numbers. State legislators with Republican majorities are writing new voter ID laws with the intent to disenfranchise people of color, because they tend to vote Democratic. The Republican governor of Georgia has purged hundreds of thousands of likely Democratic voters from the rolls. Of course, it also works the other way. Republicans are vulnerable too. In Alaska, new residency rules are designed to disenfranchise the Native Americans that were crucial to Sen. Murkowski’s victory in 2012.

This tactic is not new. It was employed until the Voting Rights Act of 1965 made it illegal. But in 2013 the Supreme Court ruled in Shelby County v. Holder that the Act relied on antiquated data and struck down its most effective provisions. Within five years of that decision, close to a thousand polling places were gone, most of them in predominantly African-American counties.

Free elections are still threatened by Russian meddling. Given what we now know, it may have swung the 2016 election to Donald Trump. The U.S. intelligence services are certain that the Russians continue to interfere, trying to influence the outcome of the election.

There is another, more sinister factor to consider: election results may be skewed domestically. We have no way to guarantee the accuracy of ballot counting, because the counting is not observable. Vote counting, once done in public view, now takes place out of sight, inside of computer chips. Jonathan Simon argues forcefully that what has happened to American democracy under Donald Trump and the Republicans may have a simple explanation.

Simon believes that tampering with electronic vote counting  may account for America’s dramatic shift to the right, considering that a majority of the electorate is centrist and did not vote for Donald Trump. By computerizing the electoral process we have made it extremely easy to alter the results. It’s no longer necessary to stuff ballot boxes with paper ballots or change 10,000 votes by hand. A machine can do that efficiently in seconds. A programmer or hacker can steal the election by inserting a few lines of code into the hundreds of thousands of lines of code and achieve the desired result with minimal risk of detection.

“This amounts to a rolling coup that is transforming America while disenfranchising an unsuspecting public,” Simon writes in “Code Red: Computerized Elections and the War on American Democracy.” Simon’s declared reason for writing the book is to alert the public to what he sees as a danger to democracy and the Republic that is far greater than gerrymandering and voter suppression. He wants to spur people into action before we can no longer vote our way out.

Simon asks,

Why do we collectively and so blithely assume that hundreds of millions of votes counted in secret, on partisan-produced and -controlled equipment, will be counted honestly and that the public trust will be honored to the exclusion of any private agenda, however compelling?!

Think about it.

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Pipe bombs and the crackup of the Union

Americans awoke this morning to the news that pipe bombs had been mailed to prominent political people. Not just any politicians— no Republicans, only Democrats and Trump’s favorite targets.

In his tweets and at his rallies, Trump has threatened and vilified Hillary Clinton, leading chants to “Lock her up!” He denied Barack Obama’s legitimacy, for years insisting that he was not born in the U.S., and has been dismantling every achievement of his predecessor since his first day in office. George Soros, the billionaire philanthropist and major Democratic donor, has been accused by Trump and the Right-Wing extremists of master-minding conspiracies against the U.S. and the world order. Trump has consistently disparaged the media, in particular, the publications that have criticized him, news organs like CNN and the New York Times. George Brennan, former Director of the C.I.A., has been outspokenly critical of Trump, and the President retaliated by stripping him of his security clearance.

Except for the NY Times, all of the above were recipients of bombs sent to their homes. Brennan’s was sent to CNN offices in New York.

We have a head of state who not only condones violence, but incites it. Since the days of his campaign, when he defended and encouraged his supporters that punched protesters, promising to pay their legal bills, the rabble-rouser-in-chief continues to stoke the fury of his followers, encouraging them to ravage the foundational principles of American democracy.

The country that prided itself on being a nation of laws is devolving into the misrule of chaos and hate. Trump campaigned on a pledge to destroy the existing order, and for perhaps for the only time, he is keeping his word. Rather than Making America Great Again, Trump is presiding over the disintegration of lawful society.

The political parties no longer work to reach compromises that further the greater good. Rather, they reflect the stark division of Trumpists determined to rend the fragile fabric of democracy and their opponents who want to conserve and build on the achievements of the bold experiment started over 200 years ago.

Update: Later in the day, more bombs were discovered. They were sent to Eric Holder, Obama’s attorney general and Rep. Maxine Waters (D-CA).

 

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Cut Joe Manchin some slack

JoeManchinMany Democrats are excoriating  Sen. Joe Manchin (D-WV) for betraying Democrats by voting yes to confirm Judge Brett Kavanaugh for the Supreme Court. Gail Collins, for example, writes in the NYTimes

Joe Manchin, the West Virginia Democrat, didn’t care and took a dive. It’s a real shame. This is a senator whose he-man image is so critical to his identity that he always runs campaign ads in which he shoots offensive legislation with a rifle.

I admire and follow Collins, but this is just wrong-headed.

First, the easy part. Manchin is a West Virginian. Like most people in his state, Manchin believes people have a right to own and carry guns. By shooting a rifle in his campaign ads, Manchin cements his relationship with his constituents. He has, however, bucked his party by opposing legislation that would impose restrictions on automatic weapons sales and a bill that would ban high-capacity magazines.

More important is the fact that West Virginia is the state that gave Trump his greatest margin in 2016, and Manchin is up for re-election in a few weeks. He is ahead in the polls, but if he had voted against Kavanaugh, he would very likely lose his seat in November. Democrats can’t take that risk if they want to win control of the Senate. By gaining the majority, Democrats would also control all the committees. Imagine how Kavanaugh would have fared if Sen. Dianne Feinstein (D-CA) had chaired the Senate Judicial Committee with a Democratic majority. (see Only 2 Republican votes to defeat Kavanaugh?)

Once Sen. Susan Collins (R-ME) announced her vote in favor of Kavanaugh, his confirmation was assured. It would have been incredibly stupid for Manchin to sacrifice himself on the altar of a lost cause.

Now that the votes are in, the issue is a little more complicated. Kavanaugh was confirmed 50-48. He had 49 Republican votes plus Manchin’s one. Two Republican senators did not vote. One was Steve Daines (R-MT). He had previously announced that he would be at his daughter’s wedding on Saturday, the day of the vote. The other senator was Lisa Murkowski (R-AK), the only Republican with the courage to buck her party. She had announced that she couldn’t support Kavanaugh. But Murkowski didn’t vote no, as expected. She didn’t vote. I suspect she didn’t want to be the deciding vote, the only Republican to vote against Kavanaugh. If Collins had voted no, Murkowski and Manchin and possibly others could have covered each other by voting no together.

As it turned out, if Manchin had voted with the Democrats, the vote would have been tied, 49-49, and Vice President Mike Pence would have broken the tie, giving Kavanaugh his confirmation. Manchin’s vote would not have made a difference.

 

 

 

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