Emergency powers threaten the rule of law

Modern political theorists might quibble a bit about the essential elements of a modern liberal democracy, but there is universal agreement that adherence to the rule of law doctrine is fundamental.

The rule of law doctrine holds that within democracies persons are governed by laws formulated and adopted by elected, representative legislative bodies rather than by royal decrees or “official, authoritative orders or proclamations issued by a monarch that carries the immediate force of law within their realm”.

I fear our nation under the pretend monarchy of President Donald Trump has experienced a drift toward governance by decree versus governance by the acts of our elected representative legislative bodies.

The drift comes in the form of countless executive orders issued by Trump under the 1976 National Emergency Act and the 1977 International Emergency Economic Powers Act. During the Truman Administration, the U.S. Supreme Court turned back a directive of President Truman, specifically one to seize and operate U.S. steel mills during the Korean War due to a threatened strike by steel workers and the refusal of ownership to negotiate.

The Court noted that the presence of an emergency does not create presidential powers not already authorized by Congress or the Constitution, and since no power of seizure of private property had been earlier authorized, Truman’s seizure order was invalid.

The National Emergency Act of 1976 addresses this restraint on presidential power by authorizing the president to declare an emergency when the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency — and ordinary laws and governmental powers are insufficient to restore peace and order. A presidential declaration of an emergency under NEA has the legal potential to activate 139 separate statutory powers. Since 1976, 90 presidential emergency declarations have been made and 49 are still in effect. Most of the past emergency declarations have been natural disaster declarations which triggered presidential authority to release federal aid to the state or locale affected by the disaster.

Past presidents have used the power to declare an emergency under NEA only when a real emergency existed. That has not been true with Trump.

He acted to declare an economic emergency when the economy was quite stable; an energy emergency when there was none; and a national defense emergency at the border when our national defense was not threatened. Under the guise of these emergencies, he has issued the many executive orders mentioned above.

Under the initial NEA law, Congress reserved the power to nullify a presidential declaration of an emergency through a simple majority ”veto” vote of a single chamber of Congress but the U.S. Supreme Court ruled in 1983 that powers delegated by Congress to the President can be reversed only though a simple majority approval of both chambers of Congress and a 2/3 vote of both chambers to override a potential presidential veto.

The reality today is that presidents who choose to declare emergencies based on a whim rather than facts assume significant previously authorized emergency powers and Congress can do little to restrain them. The U.S. Supreme Court might ultimately restrain a president by holding that the declaration of an emergency is unfounded based upon the facts or that an executive order issued during the emergency has not been previously authorized by statute or by ruling the executive order conflicts with a provision of the Constitution.

However, the Roberts Court, operating its shadow docket and without benefit of written or oral arguments or written opinions, has been quick to delay lower court orders preventing enforcement of contested executive orders pending final determination by the Supreme Court based on the merits of the controversy.

In brief, contested emergency power executive orders will continue to be implemented until the Roberts Court decides they are invalid, which will not be soon. This is the same court that granted Trump near absolute immunity from criminal liability for his official acts. The Pretend Monarch can do no wrong. The drift toward governance by royal decree goes on.

The rule of law doctrine is under attack. Our democracy is threatened if not lost.