Your rights under our perpetual state of emergency

By George Thomas Jr.

You may have heard the American Civil Liberties Union is giving away free pocket-sized copies of the U.S. Constitution. But what may surprise you is the Constitution is officially, at this moment, irrelevant. Why? Because the United States is currently under a state of national “emergency.” 

In fact, the country has been perpetually under numerous states of national emergency since 1979, when President Jimmy Carter declared one during the Iranian hostage crisis.

States of emergencies come in many types of flavors and can be declared by any level of government. And while most are associated with natural disasters, the end result is the same: the suspension or alteration of some functions of the executive, legislative, or judiciary branches of government. In other words, it could be argued, a declared emergency undermines the Constitutional protections our Founding Fathers fought so hard to establish.

The power of emergency

Since taking office, President Barack Obama has declared 13 new emergencies, continued 21 declared by presidents (including six continuations of the emergency declared by President George W. Bush following the 9/11 attacks), and revoked just two. Invoking such emergencies can give a president broad unchecked authority, such as but not limited to:

• Declaring martial law
• Restructuring military command and forcing soldiers out of retirement
• Deploying National Guard troops overseas
• Suspending environmental laws
• Reassigning non-military satellites for military use
• Taking control of the Internet

In short: whatever is deemed necessary at the time.

Checks and balances, you say? Congress in 1976 did pass the National Emergencies Act, which calls for semi-annual and annual reviews and renewals of emergency declarations. Except Congress has never exercised its review process, according to an investigation by USA Today in 2014. Thus such decisions of whether or not to renew a given declaration are left to the president.

In good company

To be clear, this is not a new phenomenon. Even our most revered presidents were not immune to suspending civil rights. In 1792, an emergency declaration was used to take control of state militias to quell insurrections. Shortly thereafter President George Washington exercised that authority during the Whiskey Rebellion. And President Abraham Lincoln famously used his emergency powers to suspend habeas corpus. Moreover, states of emergency have at times proved extremely beneficial. In 1933, during the Great Depression, President Franklin Roosevelt declared a state of emergency to prevent a run on banks.

Still, there’s something unsettling about living under a continual national state of emergency that grants broad powers to the president. With dozens of emergency declarations still in place and likely to remain so, where do we go from here? In a 2013 article published in the University of Michigan Journal of Law Reform, attorney Patrick Thronson proposed what he called three essential legal reforms:

1.      Revisit the National Emergencies Act to provide for meaningful congressional oversight.

2.    Ensure congressional review of Presidential Emergency Action Documents.

3.    Establish a bipartisan select committee to assess the scope of emergency powers available to the executive today and to promote public dialogue.

“Without such constraints,” Thronson wrote, “the federal government and the public may become inured to prolonged states of emergency and the expansive powers they authorize, creating a one-way ratchet toward even more expansive executive power and establishing a floor for future assertions of emergency authority that may grow more deferential to the Executive with time.”

What you can do

But until reforms are implemented, new legislation passed, and the existing emergency declarations expire without renewal by the sitting president, how can you expect to protect your constitutional rights? You can start by urging your congressional representatives to exercise their checks and balances by reviewing the emergency declarations to ensure the United States remains a free and open society, as the Founders intended. And you might want to memorize the four magic phrases that can protect your rights if you’re stopped by the police—just in case, you know.

Original