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In the hours after the terrorist attacks of September 11, 2001, Vice President Dick Cheney and Secretary of Defense Donald Rumsfeld started executing emergency policies that would have, if they had been fully implemented, ended American democracy. The policies were a special form of executive action, dating back to the Eisenhower administration, known as “presidential emergency action documents.” These were, in essence, secret presidential orders, made without congressional oversight, setting protocol for government response to nuclear attacks or a comparable crisis.
In the 1980s, Cheney and Rumsfeld had both participated in drills practicing for a possible Soviet attack that would decapitate national leadership. In such a scenario, according to the plans set by the Reagan administration, a new provisional administration, with a designated cabinet member acting as president, would form the government. As James Mann pointed out in his 2004 book The Rise of the Vulcans, these plans “established a process for designating a new American president that is nowhere authorized in the U.S. Constitution or federal law.” Under the plan, the new president would rule by decree, without Congress or the courts as a check.
Of course, there was no decapitation of leadership during 9/11. But fear that such a blow was about to fall guided the actions of Cheney and Rumsfeld, so they followed the script of the Reagan-era postapocalyptic war games. This was why Cheney advised Bush not to return to Washington after the attacks and why Cheney himself was holed up in an undisclosed secure location—a procedure he continued to follow long after the terror attacks. The Reagan emergency plans weren’t brought to fruition, but they still served as guides.
Just as Cheney and Rumsfeld were prepared to use plans originally meant for a nuclear holocaust to deal with a terrorist attack, there is a real danger that Donald Trump will call up the vast emergency powers he has at his disposal to deal with the current crisis, with Covid-19 spiraling out of control and the president’s racism provoking a wave of protests.
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Trump has a motive to use emergency powers—and the character to do so. With his presidency in ruins and an election four months away, Trump risks losing his base if they start seeing him as a weak leader cowed by protesters and presiding over chaos.
This line of attack is heard with increasing frequency on the right. “The core appeal of Trump was, if things ever started to fall apart, he would defend you,” Tucker Carlson claimed on his TV show on June 26. “And yet, when widespread looting and disorder arrived, the president did not act as decisively as many had hoped. He said little, he did less. Some voters felt undefended, some turned against him.”
To win back Carlson and the right-wing voters Carlson is channeling, Trump will be tempted to draw on the far-reaching and hidden powers that are the legacy of the Cold War. When he invoked the Stafford Act and the National Emergencies Act in mid-March, Trump claimed, “I have the right to do a lot of things that people don’t even know about.” Alas, Trump is right about this. The “presidential emergency action documents” that he’s inherited and also new ones he could issue are a storehouse of extra-constitutional authority.
Writing in The New York Times in April, Elizabeth Goitein and Andrew Boyle, both at the Brennan Center for Justice, noted, “It is not far-fetched to think that we might see the deployment of these documents for the first time and that they will assert presidential powers beyond those granted by Congress or recognized by the courts as flowing from the Constitution.”
Goitein and Boyle called on Congress to use its oversight power to investigate these emergency powers. But neither House Democrats nor Senate Republicans have displayed much appetite for checking Donald Trump. After a narrowly focused impeachment ended, congressional Democrats have been half-hearted in using their powers of investigation, acting on the premise that Trump will be judged by voters soon enough.
But given how the current crisis could easily spin out of control, the strategy of waiting for the election really amounts to little more than whistling past the graveyard. It might pay off, but there’s a real danger that Trump could use his emergency powers in a way that renders any election moot.
Beyond presidential emergency action documents, Trump can also call on the law-and-order precedents created by earlier presidents. Trump’s attorney general, William Barr, has certainly shown an inclination to follow in the footsteps of predecessors who tested the authoritarian limits of law enforcement.
In 1971, William Rehnquist, the future Supreme Court justice who was then assistant attorney general, called for the suspension of civil liberties to crack down on anti-war protesters. Rehnquist said, “The doctrine which there obtains is customarily referred to as ‘qualified martial law.’ In that situation, the authority of the nation, state or city…to protect itself and its citizens against actual violence or a real threat of violence is held to outweigh the normal right of any individual.”
In an earlier speech in 1969, Rehnquist said that “disobedience cannot be tolerated, whether it be violent or nonviolent disobedience…. If force or the threat of force is required in order to enforce the law, we must not shirk from its employment.”
While courts at the time rejected Rehnquist’s argument for “qualified martial law,” they might be more favorably inclined if Barr were to invoke similar ideas. After all, the judiciary is much more Republican now, especially after the wave of appointments Trump has made.
America could be facing a perfect storm at least as dangerous as 9/11: an uncontrollable pandemic, a reservoir of untapped presidential power, a feckless Congress and supine courts. The only remaining check on Trump’s presidency would be the people—either in the polling booth or the streets.
America could still luck out: Trump and his cronies might shrink from using such powers, out of fear of a popular backlash or uncertainty as to what response it would provoke from the military, which has already pushed back against being used as a domestic police force.
But if the worst-case scenario is avoided, it’ll only be by chance. The core problem of the imperial presidency, unrestrained by any effective opposition, will remain. American democracy has been skating on thin ice for decades. One day, the nation’s luck will run out.