The hidden powers of the Presidency

Source: BelConLawBlog.

The President of the United States has the potential powers of a dictator. Maybe “potential” is the wrong word. Here is the beginning of an article in the current issue of Harper’s magazine.

A few hours before the inauguration ceremony, the prospective president receives an elaborate and highly classified briefing on the means and procedures for blowing up the world with a nuclear attack, a rite of passage that a former official described as “a sobering moment.” Secret though it may be, we are at least aware that this introduction to apocalypse takes place.

At some point in the first term, however, experts surmise that an even more secret briefing occurs, one that has never been publicly acknowledged. In it, the new president learns how to blow up the Constitution. The session introduces “presidential emergency action documents,” or PEADs, orders that authorize a broad range of mortal assaults on our civil liberties. In the words of a rare declassified official description, the documents outline how to “implement extraordinary presidential authority in response to extraordinary situations”—by imposing martial law, suspending habeas corpus, seizing control of the internet, imposing censorship, and incarcerating so-called subversives, among other repressive measures.

“We know about the nuclear briefcase that carries the launch codes,” Joel McCleary, a White House official in the Carter Administration, told me. “But over at the Office of Legal Counsel at the Justice Department there’s a list of all the so-called enemies of the state who would be rounded up in an emergency.  I’ve heard it called the ‘enemies briefcase.’ ”

These chilling directives have been silently proliferating since the dawn of the Cold War as an integral part of the hugely elaborate and expensive Continuity of Government (COG) program, a mechanism to preserve state authority (complete with well-provisioned underground bunkers for leaders) in the event of a nuclear holocaust.

Compiled without any authorization from Congress, the emergency provisions long escaped public discussion—that is, until Donald Trump started to brag about them.  “I have the right to do a lot of things that people don’t even know about,” he boasted in March, ominously echoing his interpretation of Article II of the Constitution, which, he has claimed, gives him “the right to do whatever I want as president.”

Source: Andrew Cockburn | Harper’s Magazine

These powers come from two sources. One consists of laws, going back to World War One, granting the President emergency powers and never rescinded. The other is the old doctrine that “in time of war, the laws of silent,” combined with the idea that the USA is a permanent state of war with no foreseeable end.

Back in 1974, President Nixon was threatened with impeachment for abusing the powers of his office. At roughly the same time, a Senatorial committee headed by Senator Frank Church investigated the powers then claimed for the Presidency.

The committee concluded that a president could “seize property and commodities, seize control of transport and communications, organize and control the means of production, assign military forces abroad, and restrict travel”—a state of affairs that the committee reasonably described as “dangerous.”

Congress in 1975 passed a law proposed by Senator Church terminating all national emergencies.

There was a big pushback against limits to the President’s powers, led by Dick Cheney, Donald Rumsfeld and William Barr. Henry Kissinger remarked, “It is an act of insanity and national humiliation to have a law prohibiting the president from ordering an assassination.”

Congress started to pass new laws giving the President new emergency powers. The International Emergency Economic Powers Act of 1977, for example, gives the President power to freeze the bank accounts and impose other sanctions on any individual, business or government, without evidence and without appeal.

Many laws that supposedly limit the President’s powers actually expand it. The Foreign Intelligence Surveillance Act does not limit the government’s power to wiretap and burglarize. It provides a procedure for doing these things legally.

President George H.W. Bush ordered an attack on Panama without congressional approval and President Bill Clinton did the same with Serbia.

President George W. Bush used authorizations to use military force against Al Qaeda and to enforce weapons inspections in Iraq as a warrant to invade and occupy Iraq, conducting illegal. President Barack Obama established a precedent for assassinating American citizens, including a teenage boy.

Many Congressional Democrats who have compared President Trump to Adolph Hitler have been unwilling to limit his arbitrary power. This means they do not care about abuse of power. They only care about who exercises it.


Letter from Washington: The Enemies Briefcase by Alexander Cockburn for Harper’s Magazine.  The whole thing is well worth reading.

Trump Has Emergency Powers We Aren’t Allowed to Know About by Elizabeth Goitein and Andrew Boyle for The New York Times.

The Nuclear Arsenal Problem You Never Saw Coming by Zack Brown for The National Interest.

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