A swine flu epidemic in 2009. Hurricane Katrina. The onset of the Civil War.
All of these crises and more have been met by one of the U.S. president’s greatest powers: the power to declare emergencies. To deal with sudden threats to the security of the U.S., the executive branch is able to temporarily expand its power to resolve crises as they appear. That is, until President Donald Trump declared a national emergency Feb. 15 over the “crisis” at the border.
In Trump’s own words, “I didn’t need to do this.” He has had an ongoing stalemate with Congress over funding for his southern border wall. Trump is attempting to use the emergency to get the funding he would need for the border wall.
While his effort to declare an emergency is likely to be struck down in court, it presents a frequently neglected issue: When should declaring a national emergency be allowed, by whom, and what powers should the president have to solve it?
A president should only be able to declare a national emergency over crises that are urgent and would result in a catastrophe if unresolved, and should only have the power just sufficient for the emergency at hand, to be examined on a case-by-case basis, with current powers granted in an emergency greatly reduced.
National emergencies confer wide-ranging powers on the president to deal with unknown crises. According to the Brennan Center for Justice, the president has more than 130 special provisions he can activate during a state of emergency. Only 13 of these require a congressional declaration. All of the other powers can be activated without congressional input. These range from the power to take control of the internet to freeze assets to blocking transactions with any foreign citizen and even imprisoning U.S. citizens without trial. It was what allowed President George W. Bush to institute warrantless wiretapping and torture programs after the 9/11 attacks.
It also would allow the president to detain anyone suspected of hiring, housing or providing paid legal representation to an asylum seeker or undocumented immigrant within the U.S. under the International Emergency Economic Powers Act, according to an article posted by Elizabeth Goitein in The Atlantic in January. While it would be impossible to identify every person who has assisted an undocumented immigrant or asylum seeker, prosecuting a few high-profile cases could instill fear in ordinary citizens.
Trump could, under the same act, seize control of social media platforms, as well as websites that rally opposition against him. Given the potential for abuse of extraordinary powers, change to emergency laws is absolutely necessary.
What would need to be changed about emergency declarations? First, only Congress should be allowed to declare emergencies. The few emergency provisions under the Constitution are all powers of Congress (the militia clause, the habeas corpus clause, etc.), so completing the set would make sense.
Furthermore, the president is the one exercising emergency powers, so Congress should be the one to determine when the president needs extra power.
There also needs to be a strict definition for when a national emergency can be declared, such as “crises in which extraordinary powers are absolutely necessary to resolve the emergency before causing a ‘public calamity.’”
Finally, the emergency powers of the president should only be granted by Congress in the resolution declaring the emergency. The powers to seize control of the internet and detain U.S. citizens without trial should not be held because of a flu epidemic. A national emergency should be a temporary and small-scale adjustment of powers, not a blank check for abuse.
Riley Dalton is a sophomore at Homestead High School.