[ExI] Presidential emergency action documents

[John Clark]

*The following was in the April 10 2020 New York Times*
*======*
*Trump Has Emergency Powers We Aren’t Allowed to Know About*

  By Elizabeth Goitein and Andrew Boyle

The past few weeks have given Americans a crash course in the powers that
federal, state and local governments wield during emergencies. We’ve seen
businesses closed down, citizens quarantined and travel restricted. When
President Trump declared emergencies on March 13 under both the Stafford
Act and the National Emergencies Act, he boasted, “I have the right to do a
lot of things that people don’t even know about.”

The president is right. Some of the most potent emergency powers at his
disposal are likely ones we can’t know about, because they are not
contained in any publicly available laws. Instead, they are set forth in
classified documents known as “presidential emergency action documents.”

These documents consist of draft proclamations, executive orders and
proposals for legislation that can be quickly deployed to assert broad
presidential authority in a range of worst-case scenarios. They are one of
the government’s best-kept secrets. No presidential emergency action
document has ever been released or even leaked. And it appears that none
has ever been invoked.

Given the real possibility that these documents could make their first
appearance in the coronavirus crisis, Congress should insist on having full
access to them to ensure that they are consistent with the Constitution and
basic principles of democracy.

Presidential emergency action documents emerged during the Eisenhower
administration as a set of plans to provide for continuity of government
after a Soviet nuclear attack. Over time, they were expanded to include
proposed responses to other types of emergencies.

As described in one declassified government memorandum
<https://www.governmentattic.org/18docs/NRCupdtPEADS_2004.pdf> , they are
designed “*to implement extraordinary presidential authority in response to
extraordinary situations*.”

Other government documents have revealed some of the actions that older
presidential emergency action documents — those issued up through the 1970s
— purported to authorize. These include suspension of habeas corpus by the
president (not by Congress, as assigned in the Constitution), detention of
United States citizens who are suspected of being “subversives,”
warrantless searches and seizures and the imposition of martial law.

Some of these actions would seem unconstitutional, at least in the absence
of authorization by Congress. Past presidential emergency action documents,
however, have tested the line of how far presidents’ constitutional
authority may stretch in an emergency.

For example, a Department of Justice memorandum from the Lyndon B. Johnson
administration discusses a presidential emergency action document that
would impose censorship on news sent abroad. The memo notes that while no
“express statutory authority” exists for such a measure, “it can be argued
that these actions would be legal in the aftermath of a devastating nuclear
attack based on the president’s constitutional powers to preserve the
national security.” It then recommends that the president seek ratifying
legislation from Congress after issuing the orders.

Much less is known about the contents of more recent presidential emergency
action documents — but we do know they exist. They undergo periodic
revision to take into account new laws, conditions and concerns. The
Department of Justice reviews the proposed changes for legal soundness, the
Federal Emergency Management Agency plays a coordinating role and the
National Security Council provides policy direction and final approval.

Based on budgetary requests from the Department of Justice to Congress and
other documents, it appears that presidential emergency action documents
were revised in the late 1980s, in the 2000s and again starting in 2012 and
continuing into the Trump administration. The latest numbers available
suggest there are between 50 and 60 such documents in existence.

There is no question that presidential emergency action documents could be
used in a pandemic like that caused by the coronavirus. A 2006 Nuclear
Regulatory Commission memorandum addressed that agency’s plan under
President Bush’s 2005 “National Strategy for Pandemic Influenza.” The
concern was how to maintain operations in response to a pandemic that
proved to be “persistent, widespread, and prolonged.” The memo’s authors
offered the Nuclear Regulatory Commission 14 bullet points of actions,
including to “review presidential emergency action documents” and “select
those most likely to be needed” by the commission.

The most notable aspect of presidential emergency action documents might be
their extreme secrecy. It’s not uncommon for the government to classify its
plans or activities in the area of national security. However, even the
most sensitive military operations or intelligence activities must be
reported to at least some members of Congress. By contrast, we know of no
evidence that the executive branch has ever consulted with Congress — or
even informed any of its members — regarding the contents of presidential
emergency action documents.

That is a dangerous state of affairs. The coronavirus pandemic is fast
becoming the most serious crisis to face this country since World War II.
And it is happening under the watch of a president who has claimed that
Article II of the Constitution gives him “the right to do whatever I want.”
It is not far-fetched to think that we might see the deployment of these
documents for the first time and that they will assert presidential powers
beyond those granted by Congress or recognized by the courts as flowing
from the Constitution.

Even in the most dire of emergencies, the president of the United States
should not be able to operate free from constitutional checks and balances.
The coronavirus crisis should serve as a wake-up call. Presidential
emergency action documents have managed to escape democratic oversight for
nearly 70 years. Congress should move quickly to remedy that omission and
assert its authority to review these documents, before we all learn just
how far this administration believes the president’s powers reach.

*Elizabeth Goitein is a co-director and Andrew Boyle is a lawyer at the
Liberty and National Security Program at the Brennan Center for Justice at
New York University School of Law.*
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