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John Whitehead's Commentary

Rule by Fiat: National Crises, Fake Emergencies and Other Dangerous Presidential Powers [SHORT]

John Whitehead

“When the President does it, that means that it is not illegal.”—Richard Nixon

Who pays the price for the dissolution of the constitutional covenant that holds the government and its agents accountable to the will of the people?

We all do.

This ill-advised decision by President Trump to circumvent the Constitution’s system of checks and balances by declaring a national emergency in order to build a border wall constitutes yet another expansion of presidential power that exposes the nation to further constitutional peril.

It doesn’t matter that the legal merits of this particular national emergency will be challenged in court.

The damage has already been done.

As reporter Danny Cevallos points out, “President Donald Trump only had to say ‘national emergency’ to dramatically increase his executive and legal authority. By simply uttering those words … Trump immediately unleashed dozens of statutory powers available to a president only during a state of emergency. The power of the nation's chief executive to declare such an emergency knows few strictures — it was designed that way.”

We have now entered into a strange twilight zone where ego trumps justice, propaganda perverts truth, and imperial presidents—empowered to indulge their authoritarian tendencies by legalistic courts, corrupt legislatures and a disinterested, distracted populace—rule by fiat rather than by the rule of law.

This attempt by Trump to rule by fiat merely plays into the hands of those who would distort the government’s system of checks and balances and its constitutional separation of powers beyond all recognition.

This is about unadulterated power in the hands of the Executive Branch.

This is about corporate greed disguised as a national need.

Most of all, however, this is about the rise of an “emergency state” that justifies all manner of government tyranny and power grabs in the so-called name of national security.

This is exactly the kind of concentrated, absolute power the founders attempted to guard against by establishing a system of checks of balances that separates and shares power between three co-equal branches: the executive, the legislative and the judiciary.

“The system of checks and balances that the Framers envisioned now lacks effective checks and is no longer in balance,” concludes law professor William P. Marshall. “The implications of this are serious. The Framers designed a system of separation of powers to combat government excess and abuse and to curb incompetence. They also believed that, in the absence of an effective separation-of-powers structure, such ills would inevitably follow. Unfortunately, however, power once taken is not easily surrendered.”

The Constitution invests the President with very specific, limited powers: to serve as Commander in Chief of the military, grant pardons, make treaties (with the approval of Congress), appoint ambassadors and federal judges (again with Congress’ blessing), and veto legislation.

In recent years, however, American presidents have anointed themselves with the power to wage war, unilaterally kill Americans, torture prisoners, strip citizens of their rights, arrest and detain citizens indefinitely, carry out warrantless spying on Americans, and erect their own secretive, shadow government.

The powers amassed by each past president and inherited by each successive president—powers which add up to a toolbox of terror for an imperial ruler—empower whomever occupies the Oval Office to act as a dictator, above the law and beyond any real accountability.

Consider some of the presidential powers—which have been acquired through the use of executive orders, decrees, memorandums, proclamations, national security directives and legislative signing statements and can be activated by any sitting president—that have allowed past presidents to operate above the law and beyond the reach of the Constitution.

All of the imperial powers amassed by Trump’s predecessors—to kill American citizens without due process, to detain suspects (including American citizens) indefinitely, to strip Americans of their citizenship rights, to carry out mass surveillance on Americans without probable cause, to wage wars without congressional authorization, to suspend laws during wartime, to disregard laws with which he might disagree, to conduct secret wars and convene secret courts, to sanction torture, to sidestep the legislatures and courts with executive orders and signing statements, to direct the military to operate beyond the reach of the law, to establish a standing army on American soil, to operate a shadow government, to declare national emergencies for any manipulated reason, and to act as a dictator and a tyrant, above the law and beyond any real accountability—have become a permanent part of the president’s toolbox of terror.

Be warned: none of these powers expire at the end of a president’s term. They remain on the books, just waiting to be used or abused by the next political demagogue.

Thus, Trump is not the first president to weaken the system of checks and balances, sidestep the rule of law, and expand the power of the president. He is just the most recent.

To our detriment, every successive occupant of the Oval Office since George Washington, who issued the first executive order, has expanded the reach and power of the presidency and made our republic that much more vulnerable to those who would abuse those powers in the future.

As Professor Marshall explains, “every extraordinary use of power by one President expands the availability of executive branch power for use by future Presidents.” Moreover, it doesn’t even matter whether other presidents have chosen not to take advantage of any particular power, because “it is a President’s action in using power, rather than forsaking its use, that has the precedential significance.”

In other words, each successive president continues to add to his office’s list of extraordinary orders and directives, granting him- or herself near dictatorial powers.

There’s no point debating which politician would be more dangerous with these powers.

As I point out in my book Battlefield America: The War on the American People, the fact that any individual—or branch of government—is empowered to act like a dictator is danger enough.

WC: 985

ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book Battlefield America: The War on the American People  (SelectBooks, 2015) is available online at www.amazon.com. Whitehead can be contacted at johnw@rutherford.org.

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