De­tails sought on emer­gency pow­ers

Group of sen­a­tors seeks clar­ity on Trump’s view of pres­i­den­tial author­ity

The Standard (St. Catharines) - - Canada & World - DEB RIECHMANN

WASHINGTON—The day he de­clared the COVID-19 pan­demic a na­tional emer­gency, U.S. Pres­i­dent Don­ald Trump made a cryptic off­hand re­mark.

“I have the right to do a lot of things that peo­ple don’t even know about,” he said at the White House.

Trump wasn’t just crow­ing. Dozens of statu­tory au­thor­i­ties be­come avail­able to any pres­i­dent when na­tional emer­gen­cies are de­clared. They are rarely used, but Trump last month stunned le­gal ex­perts and others when he claimed — mis­tak­enly — that he has “to­tal” author­ity over gov­er­nors in eas­ing COVID-19 guide­lines.

That prompted 10 sen­a­tors to look into how sweep­ing Trump be­lieves his emer­gency pow­ers are.

They have asked to see this ad­min­is­tra­tion’s Pres­i­den­tial Emer­gency Ac­tion Doc­u­ments, or PEADs. The lit­tle-known, clas­si­fied doc­u­ments are es­sen­tially plan­ning papers.

The doc­u­ments don’t give a pres­i­dent author­ity be­yond what’s in the con­sti­tu­tion. But they out­line what pow­ers a pres­i­dent be­lieves that the con­sti­tu­tion gives him to deal with na­tional emer­gen­cies. The sen­a­tors think the doc­u­ments would pro­vide them a win­dow into how this White House in­ter­prets pres­i­den­tial emer­gency pow­ers.

“Some­body needs to look at th­ese things,” Sen. An­gus King said in a tele­phone in­ter­view. “This is a case where the pres­i­dent can de­clare an emer­gency and then say, ‘Be­cause there’s an emer­gency, I can do this, this and this.’”

King, seven Democrats and one Repub­li­can sent a let­ter late last month to act­ing na­tional in­tel­li­gence di­rec­tor Richard Grenell ask­ing to be briefed on any ex­ist­ing PEADs. Sen. Pa­trick Leahy wrote a sim­i­lar let­ter to At­tor­ney Gen­eral Wil­liam Barr and White House coun­sel Pat Cipol­lone.

“The con­cern is that there could be ac­tions taken that would vi­o­late in­di­vid­ual rights un­der the con­sti­tu­tion,” such as lim­it­ing due process, un­rea­son­able search and seizure and hold­ing in­di­vid­u­als with­out cause, King said.

“I’m merely spec­u­lat­ing. It may be that we get th­ese doc­u­ments and there’s noth­ing un­to­ward in their checks and bal­ances and ev­ery­thing is above board and rea­son­able.”

Joshua Geltzer, vis­it­ing pro­fes­sor of law at Ge­orge­town Univer­sity, said there is a push to take a look at th­ese doc­u­ments be­cause there is ris­ing dis­trust for the Trump ad­min­is­tra­tion’s le­gal in­ter­pre­ta­tions in a way he hasn’t seen.

The most pub­li­cized ex­am­ple was Trump’s de­ci­sion last year to de­clare the se­cu­rity sit­u­a­tion along the U.S.-Mex­ico border a na­tional emer­gency. That de­ci­sion al­lowed him to take up to $3.6 bil­lion (U.S.) from mil­i­tary con­struc­tion projects to fi­nance wall con­struc­tion be­yond the miles that law­mak­ers had been will­ing to fund. Trump’s move skirted the author­ity of Congress, which by law has the power to spend money in the na­tion’s wal­let.

“I worry about other things he might call an emer­gency,” Geltzer said. “I think around the elec­tion it­self in Novem­ber

— that’s where there seems to be a lot of po­ten­tial for mis­chief with this pres­i­dent.”

The law­mak­ers made their re­quest just days af­ter Trump made his star­tling claim on April 13 that he had the author­ity to force states to re­open for busi­ness amid the pan­demic.

“When some­body’s the pres­i­dent of the United States, the author­ity is to­tal,” Trump said, caus­ing a back­lash from some gov­er­nors and le­gal ex­perts. Trump later tweeted that while some peo­ple say it’s the gov­er­nors’, not the pres­i­dent’s de­ci­sion, “Let it be fully un­der­stood that this is in­cor­rect.”

Trump later back­tracked on his claim of “to­tal” author­ity and agreed that states have the up­per hand in de­cid­ing when to end their lock­downs. But it was just the lat­est from a pres­i­dent who has been stretch­ing ex­ist­ing statu­tory au­thor­i­ties “to, if not be­yond, their break­ing point,” said Stephen Vladeck, a law pro­fes­sor at the Univer­sity of Texas. Questions about Trump’s PEADs went unan­swered by the Jus­tice De­part­ment, Na­tional Se­cu­rity Coun­cil and the Of­fice of the Di­rec­tor of Na­tional In­tel­li­gence.

El­iz­a­beth Goitein, co-di­rec­tor of a na­tional se­cu­rity pro­gram at the Bren­nan Cen­ter for Jus­tice at New York Univer­sity School of Law, said PEADs have not been sub­ject to con­gres­sional over­sight for decades. She es­ti­mates that there are 50 to 60 of th­ese doc­u­ments, which in­clude draft procla­ma­tions, ex­ec­u­tive orders and pro­posed leg­is­la­tion that could be swiftly in­tro­duced to “as­sert broad pres­i­den­tial author­ity” in na­tional emer­gen­cies.

She said the Eisen­hower ad­min­is­tra­tion had PEADs out­lin­ing how it might re­spond to a pos­si­ble Soviet nu­clear at­tack. Ac­cord­ing to the Bren­nan Cen­ter, PEADs is­sued up through the 1970s in­cluded de­ten­tion of U.S. cit­i­zens sus­pected of be­ing sub­ver­sives, war­rant­less searches and seizures and the im­po­si­tion of mar­tial law.

“A De­part­ment of Jus­tice mem­o­ran­dum from the Lyn­don B. John­son ad­min­is­tra­tion dis­cusses a pres­i­den­tial emer­gency ac­tion doc­u­ment that would im­pose cen­sor­ship on news sent abroad,” Goitein wrote in an op-ed with lawyer An­drew Boyle pub­lished last month in The New York Times.

“The memo notes that while no ‘ex­press statu­tory author­ity’ ex­ists for such a mea­sure, ‘it can be ar­gued that th­ese ac­tions would be le­gal in the af­ter­math of a dev­as­tat­ing nu­clear at­tack based on the pres­i­dent’s con­sti­tu­tional pow­ers to pre­serve the na­tional se­cu­rity.”’


On March 12, the day he de­clared the COVID-19 pan­demic a na­tional emer­gency, U.S. Pres­i­dent Don­ald Trump said he has “the right to do a lot of things that peo­ple don’t even know about.”

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