Throughout U.S. history, presidents have exploited national emergencies to exceed their constitutional powers. Abraham Lincoln illegally suspended habeas corpus during the Civil War. Franklin D. Roosevelt confined people of Japanese descent in internment camps during World War II. And George W. Bush used his post-9/11 “war on terror” to launch two illegal wars, mount a program of torture, conduct extensive unlawful surveillance and illegally detain people.
In light of the national emergency Donald Trump declared on Friday, March 13, his Department of Justice (DOJ) is asking Congress to allow the attorney general to indefinitely detain people without trial in violation of the constitutional right of habeas corpus. The DOJ also seeks to hold hearings without the defendant’s consent and exclude anyone with COVID-19 from eligibility for asylum.
Trump, who delayed responding to the pandemic for an unconscionable period of time, has now declared himself a “wartime president.” He knows that wartime presidents are never defeated at the ballot box. Despite Trump’s incompetent handling of the crisis, his approval ratings are as high as they have ever been.
But, during Bush’s so-called war on terror, Justice Sandra Day O’Connor wrote in Hamdi v. Rumsfeld,
“We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the nation’s citizens,” adding, “Even the war power does not remove constitutional limitations safeguarding essential liberties.”
Trump’s Powers During the National Emergency
In declaring the national emergency, Trump invoked the Stafford Disaster Relief and Emergency Assistance Act, which provides for financial and technical assistance to state and local governments.
He also invoked the National Emergencies Act, which triggers more than 100 additional powers for the president, constitutional law scholar Stephen Rohde said on WBAI radio’s “Law and Disorder.” They include the authority to shut down radio stations, freeze bank accounts and even deploy the military.
Moreover, the Communications Act of 1934 says that when a president proclaims there is a state or threat of war, he can order “the closing of any facility or station for wire communication.”
Rohde worries that provision could include television,