A Tale of Two Emergencies
Losing hundreds of lives to suicide bombings occurring on a monthly basis, failing to contain an ever-growing refugee crisis, neighboring a civil war state and a terrorist insurgency to the south, and having recently foiled an attempted coup by the acolytes of a fanatical cult inside its military, Turkey declared a state of emergency in the summer of 2016. The decision did not surprise many. Any nation, after all, could be expected to grant its government broad-reaching powers in the face of such overwhelming calamity. But the line between the temporary suspension and the permanent elimination of checks on executive authority can be a thin one, and Turkey’s case is a tragic illustration.
The national emergency enabled the executive branch (read: the President) to unilaterally issue decrees that carried the full force of the law and were not limited in scope by constitutional rights. Other enumerated powers activated by the President included the ability to restrict entry and exit into the country or designated regions, block demonstrations, confiscate communication devices, censor publishing and broadcasts, conduct searches without warrant, or issue curfews and to suspend the activities of civil society organizations. Thousands of civil servants were falsely accused of being members of terrorist organizations and expelled from their posts. Many were reinstated only after painful litigation. Countless academics and journalists were arrested on trumped-up charges. Renewed continuously by the cabinet for two years, the state of emergency finally came to an end last July, and only after many of the extraordinary powers used during this period were made permanent by statute. The process normalized executive overreach, fatally undermined Turkey’s already-flawed parliamentary democracy, and paved the way for the formal transition to a hegemonic presidential system.
The tragedy is that there were very few mechanisms to stop this wheel once it began turning. Many of the administration’s most egregious actions did not expressly violate the Turkish constitution, which had written a blank check to the government in times of crisis and entrusted the safety of the country’s democratic institutions to uncodified norms. The government, meanwhile, had been trampling the said norms even before the country descended into pandemonium, and once an opening presented itself, there was no turning back.
When Turkey’s state of emergency first went into effect, then-candidate Donald Trump was continuing to make waves on the campaign trail with his promise to build a wall on America’s southern border. While he failed to generate congressional support for funding his signature project once he gained office, he has since come to realize that he did not need a single vote cast in its favor. A unilateral declaration of emergency was all that was required. The move is unprecedented. While there has been at least one state of emergency active in any given year for the past few decades, emergency powers have never before been invoked to finance an item on the President’s agenda. In response, Congress has passed a resolution to nullify the declaration, prompting Trump to issue his first veto, and 16 states have filed a lawsuit against the administration.
Is the President’s maneuver within the bounds of his constitutional authority? What many see at stake now is the Congress’s tightly-guarded “power of the purse”, a textbook example of a check on the presidency which ensures that the legislative branch has sole authority to levy taxes and appropriate government spending. Viewed in this light, the President bypassing Congress for funding appears to be a blatant power-grab in violation of the separation of powers. But declaring the situation on the southern border an “emergency” complicates matters, and the legal case against the administration is a much harder one to make. Unlike many of its counterparts around the world, the United States Constitution does not feature a list of provisions that expand the authority of the executive branch in an emergency. In fact, it does not even contain a single instance of the word “emergency”. It may only be argued that the President, in his capacity as the chief executive and the commander of the armed forces, is implicitly empowered to take decisive action in times of crisis. Seemingly in agreement with this interpretation, presidents have declared national emergencies with some regularity, and lacking strong constitutional safeguards to work with, America’s legislators have used statues to rein them in. The most notable of these statutes is the National Emergencies Act, enacted in 1976 after the Watergate scandal to formalize all emergency powers available to the president and to delineate the contours of executive authority. The law limits the president’s powers to those specified either by Constitution or by an act of Congress, but allows for the reallocation of military spending by the President in an emergency. It also does not define what an emergency is or when it may be declared. Harvard legal scholar Cass Sunstein has also noted the courts’ reluctance to limit the president’s discretion in declaring an emergency.
In his initial announcement, Trump openly admitted his decision to be entirely arbitrary. It is obvious that no extraordinary threats to America’s safety currently exist on its southern border. But in the end, none of this may matter. The case against the administration rests largely on whether the border wall can be defined as a “military construction project.” However, favorable language in the relevant statutes and a conservative Supreme Court is likely to ensure a good ruling for the President. Though the recently-passed Congressional resolution would have been enough to nullify the state of emergency in the past, the Supreme Court’s ruling in the 1983 case INS v. Chadha declared legislative vetoes unconstitutional. A two-thirds majority is now required in both houses of Congress to override the President’s recent veto, and while the original resolution gained considerable bipartisan support, this outcome appears far-fetched nonetheless.
All of this begs the question: if it really was so easy to declare an emergency on a whim, then why did past presidents never resort to such a measure when faced with congressional obstacles? The answer once again seems rooted in established norms, which is the one parallel that can be drawn between Turkey’s parable and America’s recent constitutional showdown. Yes, presidents are supposed to safeguard democratic institutions and not abuse their emergency powers for short-term benefit, but the key phrase here is “supposed to.” Norms are fragile. Despite its broad powers, Turkey’s presidency functioned as a largely ceremonial office under the parliamentary system, until its current president decided against it. Occupants of the White House did not seek a full third term in office or appoint family members to cabinet positions, until they did. But when America saw its norms being shattered in the past, it took action to codify them: term limits were instituted, and anti-nepotism laws were passed. But significant gaps still remain. The current administration will have done a great service to American democracy if its transgressions can lead to the enactment of stronger safeguards against abuses of power. Some of the legislation currently proposed on this front would, for limit the president’s ability to issue pardons and remove a special counsel. It is now clear that a reform of the National Emergencies Act is also necessary. It is sensible to require that states of emergency be renewed with congressional approval after three months and to clarify dangerously broad statutory language on certain emergency powers so that, for instance, a 1942 amendment to the Communications Act of 1934 does not allow the President to take over internet traffic over the United States in response to only a vague “threat of war”.
Absent such measures, the precedent being set by the current administration should still not be an inspiration for progressives to run roughshod over Congress once they gain office, as suggested by Senator Marco Rubio in his rebuke of Trump’s declaration. It is true that an issue like climate change does actually require swift and drastic action, but emergency powers are either too limited or too unwieldy to be used effectively in that capacity. The next Democratic president may reallocate defense funds towards certain clean energy initiatives that fit the description of a “military construction project”, but the scale of investment actually required on that front is many times larger than this limited measure could accommodate. While it may also be possible to block all oil drilling by suspending federal leases, the level of economic disruption and political uproar such a radical act would generate makes it unlikely to be a tenable solution. In the end, such repeated invocation of emergency powers will only erode Congress’s authority to restrain the executive. For Democrats, fighting gerrymandering and voter suppression laws to ensure fair political representation, abolishing the Senate filibuster and then seeking comprehensive legislative solutions for issues like climate change will be the more prudent and effective course of action. While the many veto points peppered throughout the American system of government can prove frustrating to the idealistic reformer, if there is one important lesson to be drawn from the experience of a nation like Turkey, it is that the founding paranoia regarding the consolidation of power in the hands of the executive branch remains far from unjustified. Despite their expedience in times of legitimate crisis, emergency powers are particularly vulnerable to abuse by leaders with authoritarian ambitions and little regard for the democratic norms that bound their predecessors. And while Trump’s decision to declare a national emergency to fund his project for a border wall is likely to withstand legislative and judicial scrutiny, the incident should move American lawmakers to reassert their authority by expanding and solidifying the existing restrictions on the President’s emergency powers.