Day 6

How Trump could use emergency powers in the upcoming U.S. election

The National Emergencies Acts gives the U.S president substantially increased powers when an emergency is declared. Brennan Center for Justice's Elizabeth Goitein walks us through some of the abilities these powers grant.

They're easily exploitable and open to abuse, says Brennan Center for Justice co-director Elizabeth Goitein

U.S. President Donald Trump announced that he will declare a national emergency in order to build a barrier on the U.S.-Mexico border without funding from Congress on February 15, 2019 in Washington, D.C. (BRENDAN SMIALOWSKI/AFP via Getty Images)

Presidential emergency powers are designed to protect American interests, but as the U.S. election approaches, some are wondering how they could be used.

With just a little over a month until voting day, U.S. President Donald Trump has seeded doubt over the election process and has refused to commit to honouring the results of the vote. On Friday, he confirmed he tested positive for COVID-19.

When it comes to the how National Emergencies Act is used, Elizabeth Goitein believes there is a lot to consider.

Goitein is the co-director of the Liberty and National Security Program at the Brennan Center for Justice and says the powers are exploitable, give the U.S. president substantially increased authority — and they could be utilized by Trump in the coming election.

She broke down Trump's past use of emergency powers — and how they could be used in the future. 

What powers does the U.S. president hold during a national emergency?

When a president declares a national emergency, his declaration triggers standby powers that are contained in more than 100 other provisions of law, according to Goitein. 

Though many of these provisions are quite narrow and reasonable, she told Day 6 host Brent Bambury that some of them seem like the stuff of "authoritarian regimes."

"Under one provision, the president is allowed to freeze the assets of anyone, including any American, if he decides that person is contributing to a foreign threat," she said. "Under another law, the president can take over or shut down radio stations."

And if the president declares a threat of war, she says they can take over or shut down wire communications facilities, which gives them control over wire and cable transmission of writings, pictures and sounds. This could potentially include the internet.

"That is a position that has been taken by executive branch officials, and by members of Congress who, in other contexts, have opined that this law actually would enable the president to take over internet facilities in an emergency situation," she said.

... The law is too easy to exploit, and in some ways lends itself to abuse."- Elizabeth Goitein

Can these powers be rolled back?

Though they were designed to be used under particular circumstances, U.S. Congress did not state what those circumstances were in passing the National Emergencies Act in 1976. 

"Congress gave the president almost unlimited discretion to declare a national emergency under whatever circumstances he saw fit," Goitein said. 

She says that the only major check when the law was passed was that Congress was able to vote to terminate a national emergency declaration using a mechanism that's called a legislative veto. 

"That's a law that Congress can pass that takes effect without the president's signature," she said.

Elizabeth Goitein is the co-director of the Liberty and National Security Program at the Brennan Center for Justice. (Paul Morigi/Brennan Center for Justice)

But in 1983, the Supreme Court held that legislative vetoes are unconstitutional. So today, if Congress wants to terminate an emergency declaration, "it basically has to muster a veto-proof supermajority to do that," which is very hard to do in today's political environment, according to Goitein. 

If the president has clearly used a statutory power in a way that differs from what the statute permits, she says the courts will review it. But generally, courts will not look behind the president's determination that an emergency exists.

Has Donald Trump declared a national emergency before?

To date, Trump has declared seven national emergencies, including two this year. 

One declaration came on Feb. 15, 2019. By declaring a national emergency concerning the United States' southern border, the Trump administration planned to redirect $8 billion US in a previously-agreed expenditure and use the money to build a wall along the U.S.-Mexico border instead.

Goitein says this was a clear abuse of power.

"The law has said the same thing more or less since it was written in 1976, but he is the first president to use the National Emergencies Act for the express purpose of getting around Congress on a question of funding," she said.

Though members of the Democratic Party and even some Republicans condemned the declaration, Goitein notes that because of the way the law is written, it was "very, very hard to push back against that abuse."

"The lesson I take from that is that the law is too easy to exploit, and in some ways lends itself to abuse," she said. 

Could emergency powers be used to affect an election? 

Goitein says American citizens are fortunate when it comes to the election in a couple of ways.

"First of all, there are no statutory emergency powers that allow the president to mess with the election — that allow the president to cancel it or to postpone or to even modify the procedures for it," she said.

There are also a number of laws that very specifically prohibit interference with elections. These include laws against federal officials — including the military — being present at polling places, as well as legal prohibitions of any kind of interference or intimidation when it comes to voting.

Due to the specificities of these laws, and the inability of emergency powers to waive these laws, "it is very clear that the president could not exercise emergency powers granted by Congress in a way that would violate those laws," she said.

Donald Trump has declared a national emergency seven times during his tenure as U.S. president. This includes two declarations in 2020. (Drew Angerer/Getty Images)

But Goitein adds that Trump could still try to fall back on "inherent constitutional authority", and then it's up to the courts to determine if that authority exists.

She also notes that there are emergency powers that Congress has granted that, while unrelated to the elections, could still be deployed in a manner that could indirectly affect elections. These include the power to deploy federal troops to suppress civil unrest. 

"It doesn't take much for this administration to provide a pretext for the deployment of either the military or heavily-armed, heavily-militarized federal troops," she said. "So one worries about that and how that could affect turnout for the election."

Goitein explains that if the effect of those deployments is to actually interfere with voting, then they are illegal. "So anything the president tries to do with emergency powers or otherwise to subvert that legal right, he's going to run into legal problems," she said. 

Written by Mouhamad Rachini. Produced by Laurie Allan.

Add some “good” to your morning and evening.

A variety of newsletters you'll love, delivered straight to you.

Sign up now