Subtitle: American Dictator. The National Emergencies Act of 1976 is a hand grenade on our Constitutional shelf. Any President can pull the pin. The spark for this squib is the national emergency declaration by President Trump over the southern border crisis. Since the media focus is, as always, on politics, they devote little attention to the bigger picture of the proper place of republican chief executives.
In times of crisis, republics exercise despotic powers, meaning those unauthorized by their constitutions. Laws passed in, and justified by, pressing times too often remain after the return of peace.1 During war, some Natural Law and Constitutional limitations go by the wayside as citizens find themselves, for instance, in involuntary servitude as military draftees. Similarly, property is at risk when government commandeers industries. Although it must be this way when wars of survival jeopardize the unalienable rights and lives of one and all, the solution isn’t to sully the Constitution. Instead, the proper approach is to temporarily and Constitutionally step outside the civil boundaries of the Constitution.
Unfortunately, our government also found justification for emergency, extra-Constitutional responses to problems outside of wars. I suppose the National Emergencies Act is emblematic of the hundred-year erosion of Congressional authority and pride as it slips ever-more significant Article I powers to the courts and executive branch. I am uncomfortable with extended Presidential authority to both 1.) declare an emergency and 2.) command the community and military to deal with the emergency.2
The question in republics shouldn’t be as much the “what” of extraordinary powers, of what to do, but rather the “who” to entrust with the determination that a crisis exists and execution of the enormous powers necessary to save the nation. This problem, of how to allot executive authority during national emergencies, isn’t new.
I admire the approach of the ancient Roman republic. Both Rome and America booted their kings and established republics. Where Rome limited executive power to two Consuls with annual terms, Americans put their limits on government to paper to define the duties of the President. Of further similarity is that tiny Rome, like America, found itself at birth amidst hostile neighbors. Wars were inevitable.
Before its expansion, when militiamen could march from one end of the nation to the other in a day, every war was potentially one of survival. In Rome’s vertical society, one in which the presence of slaves was a constant reminder of the consequences of lost liberty, these republican Romans took very un-republican measures to save themselves. They had no other choice.
In perilous times the Consuls nominated, and the Senate appointed, military Dictators to harness the energy of the nation. Armed with six-month terms of office and detailed commissions from the Senate, they immediately ordered a levy of citizen-soldiers and war materials. Dictators were often former consuls with extensive military experience and their appointments were distinct honors that established their names in history. Ideally, the Dictator finished his work in less than six months, which was the reasonable limit of expense in terms of money and men.
Consuls could not nominate themselves. Dictators worked for the Senate, and the Senate could pull the Dictator’s commission at any time. Once his term of office expired, his orders lapsed as if they never existed; they left no imprint on civil law. He established no precedent. What’s more, the Senate that created the Dictator operated in the background as if he didn’t exist. Rome proved that republics can structure wartime emergency powers such that they do not threaten peacetime liberty.
It is a pity the US did not amend its Constitution in the 18th century to allow for the occasional Dictator. Instead of this historically useful and necessary republican office, the Constitution empowers Congress to raise and fund Armies, keep a Navy, and established the President as commander-in-chief of the armed forces. From these powers, Congress authorized and Presidents exercised wartime powers inconsistent with the Constitution. Military conscription despite the 13th Amendment which banned involuntary servitude? Of course. Scotus said so. What about top to bottom control of industry to maintain the war effort? Sure. Scotus said so. Restrictions on free speech and internment of Japanese-Americans? Of course.3
Again, I am not against the necessary exercise of temporary emergency powers hostile to liberty. While there are notable similarities between the Roman approach and the 1976 Emergency Act, the differences are dangerous. Like the Roman Senate, which reviewed and either extended, terminated, or replaced the Dictator after six months, Congress is likewise bound to review the President’s Emergency declaration every six months as well. Except, it hasn’t. The thirty-one in effect allow the President to send troops across the world at his discretion.
Furthermore, the President, and not Congress, determines the existence of an emergency, and the President, and not Congress determines the limits of the President’s authority to deal with the emergency. Also, thanks to our Constitutional structure, Congress may not, on a joint resolution alone, rescind the emergency. Since the Emergency Act is Law, and no law becomes law without the President’s signature, Congress must present a repeal bill to the President that called the emergency!4
The Emergency Act illustrates the difficulty of tacking on extra-Constitutional powers consistent with the Constitution. I say, rather than pretend that the Emergency Act, conscription, command and control of private industry, and 1st Amendment restrictions are Constitutional, admit they are not and stop with the “living and breathing” nonsense. What is dangerous is the Congress’ open invitation in the 1976 Emergency Act to executive abuse. Specifically, it permits the President to both write and execute diktats with the force of law. These are powers best left not to Presidents, but to Constitutionally permitted dictators.
My opening comparison of the Emergency Act to a hand grenade on the Constitutional shelf understates the danger. We are one finger-pull away from that which we cannot imagine.
1. Although the war that necessitated it ended in 1945, emergency income tax withholding remains in effect. Its postwar perpetuation feeds the Leviathan state.
Wartime rent control at pages 369-370 of The Constitution Annotated.
The Patriot Act, passed only weeks after the muslim attacks on September 11, 2001, helped the government uncover suspected terrorists. However, it also gave the government sweeping powers to unconstitutionally spy on virtually every American.
2. Admittedly less clear are quick-strike operations like Carter’s Iranian hostage rescue effort, Clinton’s efforts in Somalia and Haiti.
3. The Constitution Annotated page 366. In 1919, Justice Holmes matter-of-factly stated, “When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men ﬁght and that no Court could regard them as protected by any constitutional right.”
Selective Draft Law Cases.
Espionage Act of 1917.
4. Legislative Veto.