Outlining potential abuse of executive emergency powers, Elizabeth Goitein hopeful for reform

Emilee Arnold / staff photographer
Elizabeth Goitein, senior director of the Brennan Center for Justice’s Liberty and National Security Program, delivers her lecture on presidential emergency powers Tuesday in the Amphitheater, part of the Chautauqua Lecture Series’ Week One theme of “The Evolution of the Modern Presidency.”

Elizabeth Goitein began her lecture by outlining a fictional – but plausible – scenario. What if, she asked, President Donald Trump was elected to a second term in office, and nearing the end of his term, he anointed a handpicked successor?

What if, after this anointment, the candidate was trailing in election polls, and, what if, the president took a series of steps: alluding to foreign threats on social media, invoking the Communications Act to stifle internet traffic under the guise of preventing disinformation, declaring a national emergency and allowing the Treasury Department to freeze the assets of anyone suspected of supporting these foreign threats? 

What if the president shut down websites aligned with his political opposition for reasons based on classified documents, then deployed the Insurrection Act after urging his supporters to confront protesters – which quickly turned violent?

What if the president used the presidential alert system to warn citizens of a threat of violence at the polls, and ordered roads to be closed near polling locations?

Each step Goitein proposed is arguably legal under emergency powers. What if, she asked, the president acted each step out with the goal of suppressing the opposition’s vote and influencing the next presidential election?

Goitein’s scenario outlined a series of steps a president can take through the presidential emergency powers, which she said can be easily misused or abused by the executive branch without bipartisan Congressional reform.

Goitein, senior director of the Brennan Center for Justice’s Liberty and National Security Program, gave a lecture at 10:45 a.m. Tuesday in the Amphitheater about the use and abuse of presidential emergency powers.

Goitein explained what emergency powers are, specifically within the context of the United States, and why they are necessary. At their most fundamental level, emergency powers are powers conferred on the government for emergency scenarios in which existing laws may not be sufficient, she explained.

The U.S. federal government is composed of three branches designed to “check” each other, or limit authority with the intent of no one branch accumulating too much power. In emergencies, though, it can be substantially more difficult to check the power of a branch due to the urgent and unprecedented nature of the situation.

In theory, these powers are supposed to be limited in scope and duration, but in practice it isn’t as simple. Because of the sweeping, all-encompassing nature of the powers that may be necessary during an emergency, there is also great capacity for abuse of these powers.

“What’s most remarkable about this whole system of statutory emergency powers,” Goitein said, “is how little abuse there has been. Presidents have shown remarkable restraint in using these powers.” She said that the Brennan Center found that 70 percent of the 150 existing presidential emergency powers have never been invoked.

While there have been 79 declarations of national emergency issued in the last 46 years, according to Goitein, 72 of them were categorized under the International Emergency Economic Powers Act, which is regularly used to establish economic sanctions against other countries, regardless of whether there is a legitimate and true emergency.

The National Emergencies Act was passed in 1976 with the goal of reforming the emergency powers, but “by any measure, the National Emergencies Act has been a failure,” Goitein said.

According to Goitein, the United States is currently in 43 national emergencies, in part due to the failure of the National Emergencies Act to end emergency declarations in a timely manner — or to ensure Congress meets frequently enough  to evaluate emergencies and decide to end emergency declarations and, by extension, check the power of the executive branch.

Goitein outlined a number of current and recent emergency declarations and explained both their merits and failures. For her, a major concern is the increased utilization of emergency declarations as a way to advance goals or objectives that do not meet the criteria of an emergency, because this opens a gateway to misuse and abuse. In her view, one of the biggest ways in which the emergency powers are misused and abused is by not adhering to the definition of an “emergency.”

She noted that the National Emergency Act does not define the word “emergency,” but “the word does have meaning,” she said.

“And every dictionary that you consult will include the following two elements: First, the event or set of circumstances has to be sudden and unexpected and, second, it has to require immediate action,” she said.

Goitein analyzed President Donald Trump’s emergency declaration regarding migration at the southern U.S. border. According to her, it was the first emergency act declared with the purpose of getting around Congress and subverting the system of checks and balances.

“It was a stark wake-up call for members on both sides of the aisle,” she said. “Most lawmakers hadn’t paid the slightest attention to the National Emergencies Act and had no idea what kinds of powers it unlocked.”

In the aftermath of these declarations, Goitein said representatives from both parties introduced legislation with the intent of reforming the National Emergencies Act. Reform has been met with bipartisan support, but when President Joe Biden took office, he was met with calls from progressive lawmakers and activists to declare a national emergency regarding the climate crisis.

Many lawmakers and leaders around the world have issued declarations of climate emergency, she said, but they are primarily symbolic and do not wield significant power.

“The intent is to put the government on record and to create internal pressure for change,” Goitein said. “They are worded in such a way that they don’t actually activate any of the emergency powers that those units of government might have.”

Goitein said that while declaring a national emergency to address the climate crisis might seem like a good idea, given that the declaration unlocks access to substantive powers and resources, “the word ‘emergency’ has a meaning, and to qualify this as an emergency, an event or set of circumstances has to arrive suddenly and unexpectedly.”

She continued: “This is not just a semantic detail or legal nicety. It is core to the purpose of emergency powers in our constitutional system. Emergency powers give the president extraordinary flexibility based on the premise that Congress could not have foreseen the crisis at hand. It cannot act quickly or flexibly enough after the fact. This rationale for short-circuiting the usual legislative framework simply doesn’t apply in the context of long-standing problems.”

She added that emergency powers are not needed if Congress has had ample time to act and has chosen not to, or has chosen to act differently from how the president would like.

“That’s true for the border wall and it’s true for climate change,” Goitein said.

But a key feature of emergency powers is that their use is supposed to be temporary, until the crisis passes, or until Congress has time to act.

“Again, this is part and parcel of the world that emergency powers play in our legal system, and it’s another reason why it cannot be the answer to climate change,” she said. “We are not going to solve climate change through temporary stop-gap measures. It’s going to require permanent changes in the way we produce and consume energy.”

Goitein said that declaring a national emergency on climate change could even make the situation worse.

“Even the staunchest advocates of declaring a climate emergency acknowledge that Congress is going to have to pass legislation,” she said. “But that necessity could be jeopardized by the president declaring a national emergency for the clear purpose of circumventing Congress.”

Goitein also discussed Biden’s use of emergency powers to mitigate student loan debt. She said that while the onset of the COVID-19 pandemic was a true emergency, by the time Biden introduced this plan, the pandemic and its ramifications had been part of society for the better part of two and a half years  — and there was no shortage of failed legislation that aimed to address student loans.

“Against that backdrop,” she said, “Biden’s action looks less like a temporary measure to address a fast-moving crisis and more like a workaround to implement a long-term policy that lacked the necessary support in Congress.”

Goitein posed a question she has been grappling with in her recent research related to Trump’s failure to declare a national emergency in a timely manner during the onset of the pandemic: Can a president abuse emergency powers by not invoking them?

“I​​t’s a clear abuse of authority to declare a national emergency for a political purpose when there is no emergency, but by the same token, a politically motivated failure to use an emergency power in the face of a true crisis is also, I conclude, an abuse,” she said.

Goitein sees several pathways to potential misuse and abuse of emergency powers, including lack of clear legislation or directive about the power the president holds under Article Two and highly confidential Presidential Emergency Action documents, which very little is known about; and the Insurrection Act, an amalgamation of legislative statutes that permits the president to “deploy federal troops domestically to quell civil unrest or to execute the  law in a crisis.”

While there are many threats to the democratic system of checks and balances in the U.S. government, Goitein maintained that she is hopeful about bipartisan support to reform emergency powers.

“Most fundamentally, Americans across the political spectrum still support democracy, and the threat that emergency powers pose to democracy when they don’t have adequate safeguards is immediately, intuitively obvious,” she said.

In light of recent proposed bipartisan legislation, Goitein said she believes that reform is not a matter of “if,” but “when.”

“There is now a real chance to enact legal safeguards that will help to protect our liberties and democracy,” she concluded. “Even though I can’t pretend that I’m not a little scared, I am, above all, motivated and hopeful.”

Tags : Brennan Center for Justice’s Liberty and National Security ProgramElizabeth Goiteinmorning lecture recapThe Evolution of the Modern Presidency

The author Julia Weber

Julia Weber is a rising junior in Ohio University’s Honors Tutorial College where she is majoring in journalism and minoring in art history. Originally from Athens, Ohio, this is her first summer in Chautauqua and she is thrilled to cover the theater and dance performances. She serves as the features editor for Ohio University’s All-Campus Radio Network, a student-run radio station and media hub, and she is a former intern for Pittsburgh Magazine. Outside of her professional life, Julia has a newly adopted cat, Griffin, and she is an avid fan of live music and a dedicated ceramicist.