Citizens received an education in the last year on the destructive capacity of the government’s use of emergency laws to address Covid and the Southern Border Wall. The government invoked these emergencies to drive its political agenda by enhancing its power. It is one thing when a government uses emergency powers against warring countries like Russia or Iran but quite another when applied to average citizens seeking to protest their government. Unfortunately, the “leaders” of governments are softer on dictators and terrorists than on citizens. The reason, those who lead governments worldwide share a common bond – protecting incumbent leaders, including depots, is more important than protecting citizens.
Russia’s vicious war crimes against Ukraine are being punished with sanctions, but there is a refusal by the U.S. and Europe to impose the financial death penalty – sanctions on all oil and banking to literally shut down Russia by isolating its assets and resources. Iran, a terrorist state is another example. The U.S., with Russia’s assistance, is negotiating cash for hostage trade, which would unfreeze $11 billion of Iranian assets. The U.S. goal is to revive the 2015 Iran nuclear agreement in the hope that Iran will restrain its ability to develop nuclear weapons. Realists, however, assert the agreement allows Iran to build nuclear weapons and sell more oil to support more terrorism. These actions make no sense in that Russia and Iran seek to destroy the U.S.
Putting aside stupidity in the foreign policy arena, the question that needs to be addressed is why do emergency laws apply in domestic matters? Canada’s recent use of its Emergencies Act illustrates it is an economic and social death penalty for the citizens it is used against. Should civilized governments, yet alone democracies, set out, without due process, to socially and financially destroy its own citizens?
In the 21st century, governments know they do not have to beat people bloody in front of cameras to destroy their lives. The government needs only make laws so unjust and lacking in due process, that people cannot defend themselves.
During the truckers’ protest in Canada, Prime Minister Trudeau invoked the 1988 Emergencies Act, claiming the protest is an illegal blockade endangering public safety. The Act is to be used in situations that “seriously endangers the lives, health or safety of Canadians.” The types of situations it is to address include espionage, foreign influence activities, serious threats of political violence, or acts intended to undermine or overthrow a constitutionally established government. None of these situations apply to peaceful protests whose offense is blocking streets and making noise.
The Emergencies Act allows the government to force banks to freeze the social media accounts that collect money to support the protesters, freeze the bank accounts of the protesters, seize their  trucks, revoke their driver’s licenses, deny them insurance on their trucks, and of imprisoning them for years. It also authorizes the government to deny citizens the right to assemble and prohibit travel in certain areas of the country. By cutting off the ability of truckers to make a living, Trudeau is executing their ability to live a normal life. Trudeau was the first prime minister in the thirty-four years since its enactment, to invoke the Emergencies Act. Trudeau finds peaceful resistance to be so extreme as to be a threat to the state.
In the U.S., our federal government does everything “bigger and better” than any other country. If at any time the president of the U.S. feels, thinks, or worries about an emergency, he has the power to declare it through an emergency proclamation. While the U.S. has only one law designated “National Emergencies,” NYU’s Brennan Center identifies 136 laws or other authorities that allow the president to establish a national emergency. Ninety-six of these laws require nothing more than the signature of the president on an emergency proclamation. Fifteen of these emergency laws have restrictions such as involving a specific subject matter or the need for armed forces. Only thirteen of these emergency laws require a congressional declaration of emergency.
These 136 emergency laws are part of a massive legal framework that contains over 3000 separate criminal offenses in 50 titles of the U.S. Code and 23,000 pages of federal law. That was the last count in 1980. More troublesome, the National Emergencies Act “…does not define what constitutes a national emergency.”
Without a legal definition, determining the statutory meaning of the term falls to the common meaning found in a dictionary. Merriam Webster defines a national emergency as “a state of emergency (an unforeseen circumstance needing immediate action) resulting from a danger or threat of danger to a nation from foreign or domestic sources and usually declared to be in existence by a governmental authority.” A very subjective definition.
Historically, emergency powers were limited to wartime. But today, non-war-time presidents want war powers to control citizens in a domestic setting. The Covid pandemic is the most recent use of emergency powers. Relying on emergency public health powers the federal government-imposed mask and vaccine requirements on the entire population of the nation while keeping the science supporting its proclamation secret. It locked up the entire nation for two years. Another recent example, on inauguration day, Joe Biden, without the involvement of Congress, terminated all authorities requiring the construction of the Southern border wall which was being built to keep drug cartels, sex traffickers, and criminals out of the U.S.
The troubling use of both proclamations is that they were invoked without any direct factual findings to support the actions of the government. The public health emergency law referenced a waiver of liability law for those assisting the federal government address Covid, i.e., protecting the pharmaceutical companies. As for revoking authority to construct the Southern border wall, president Biden proclaimed the wall “is not a serious policy solution.” So much for the rule of law.
The only requirement to implement emergency power is the president must specify the provision of law under which he will act. The provision cited does not need to relate to the actions taken.
The emergency law terminates on the anniversary of its declaration unless the President notifies Congress of its continuation. The other option for terminating an emergency is for Congress, by joint resolution to terminate it. Since joint resolutions must be signed by the president, Congress needs a two-thirds majority to override a presidential veto. Otherwise, these emergency powers are continuously available to the president.
Recently, the U.S. Senate passed Senate Joint Resolution 38 which would terminate the Covid emergency declared by former President Donald Trump on March 13, 2020, and which has been extended multiple times by President Joe Biden. President Biden is threatening to veto the Joint Resolution, should the House of Representatives pass it. A presidential veto is likely to be sustained since the Democrats control the House. The president keeps his emergency powers to again shut down the nation, at his whim.
In addition to health emergencies and the Southern border wall, other powers available to the president include the ability to control airports, industrial facilities, and any device capable of emitting electromagnetic radiation, i.e., our communications system. The authority most used is the International Emergency Economic Powers Act (“IEEPA”). It authorizes the president to invoke emergency powers relating to U.S. national security, foreign policy, or the economy, including financial and commercial transactions. Sanctions can be imposed on individuals as well as countries, including the freezing of bank accounts and the seizure of assets. While there is a requirement that the threat be related to an activity in whole or part outside of the U.S., it is easy for a president to assert a foreign connection merely by accusation. The IEEPA has been invoked 55 times.
Literally, Congress through the enactment of the National Emergencies Act gives all presidents the power to be a dictator, at the time of their choosing. The only possible restraint is for Congress to remove such power, at least as it applies domestically. 3000 criminal laws should be sufficient for any government to keep the peace.
William L. Kovacs has served as senior vice-president for the US Chamber of Commerce, chief counsel to a congressional committee, and a partner in law DC law firms. His book Reform the Kakistocracy is the winner of the 2021 Independent Press Award for Political/Social Change. His second book, The Left’s Little Red Book on Forming a New Green Republic, quotes the Left on how it intends to control society by eliminating capitalism, people, and truth.