Tuesday, November 05, 2019

Trump's emergency powers

You know how FDR managed to cow his Congress into compliance with the New Deal? By threatening to invoke emergency powers. Keep that in mind as you read this thread by Kurt Eichenwald, which I will now translate into more conventional prose. The words below the asterisks are his, though I've done some minor editing.

* * *

For those who don’t understand the fragility of American democracy in the hands of an unscrupulous autocrat - a scenario never imagined possible by the Founders under our Constitution - the cancellation of elections is quite simple and arguably legal. Which is why I fear for 2020.

It all comes down to presidential emergency powers. They are poorly defined in the Constitution and under law. They are enormous -- and Trump clearly has been told that. Remember how Trump keeps saying he can do anything under the Constitution? Back when there was Japanese internment, Justice Robert Jackson wrote in his dissent that this power “lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” We have already seen Trump do this without consequence to override Congress to pay for his wall. Nothing can stop him because he said “emergency."

So, it’s October 25, 2020. Polls show that trump is going to lose in a landslide. He announces a national emergency: "We have evidence that millions of illegal aliens are conspiring to vote and undermine our democracy. Therefore, I am declaring a national emergency, suspending elections until this corruption is weeded out.”

And that’s it.

People can sue, but his powers are broad and his corrupt judiciary would knock it down. And even if a court ruled against him, there is nothing in the Constitution that says he has to abide by the ruling. Just the court's own interpretations. He can argue that Marbury v Madison does not apply in emergencies, and who can stop him?

Ok, now suppose the people take up arms or do anything but acquiesce. Trump can declare this an insurrection and suspend habeas corpus, meaning they can lock up anyone they want. Lincoln did this even though it stretches the Constitution. The section on habeas corpus appears under article one, but never says who has the power to suspend. Trump can simply say, as Lincoln did, I have that power.

He also has the authority to shut down the internet and all other communications.

While technically the electors are supposed to cast ballots, they can’t without an election victor. And without an electoral vote, the president cannot be removed.

This is all legal. And he knows it. Does anyone believe that Trump won’t CONSIDER doing it? A man who publicly stated in 2016 that he might not accept the outcome of the election? A man who, with the approval of the GOP, declared his opponents to be traitors? Who demanded the imprisonments of political adversaries, declared the press to be the enemy of the people, and has spoken longingly of never leaving office? A man who is besties with every autocrat and hates every democracy?

Yes, as Justice Jackson said, the president -- in this case Trump -- has a loaded gun. We simply have to trust that he won’t use it, or that the Republicans will join Democrats to stop him.

I do not believe for one second that they will agree that whatever rationale for the “emergency” that Trump cooks up is bogus. They talked about evil hordes coming into the United States, even though those hordes didn't exist. They have also been saying those same hordes are voting. And they’ll say it when Trump suspends elections,

So FOR GODS SAKE stop the nonsense of raging over whether there is a public option or Medicare for all, or whether someone is a “corporate democrat” or a “socialist”. None of that matters this time. We are in this position because idiots did not recognize what was at stake in 2016. They played silly games about “both sides are equally bad.”

This is the same game that was played in the German federal elections in 1932, where people voting for the “can’t win” candidate gave enormous power to Hitler. Just three years later [sic, see below], Hitler declared a national emergency, dissolved the legislature and called for new elections. And soon after that, the “protest" candidate and his supporters were locked up.

Can’t happen here? I never thought it could. Then again, I never thought that any political party would ever support an imperial executive and usurpation of power by a president declaring he is above the law.

The GOP has shown that, if they can make an argument, no matter how irrational or false, they will justify anything.

The bottom line: Bad stuff could be coming. It is not outside the realm of possibility. It would not even be illegal or unconstitutional. And it will end the great American experiment in democracy.

But rich people will do very very well.

*  *  *

Cannon here. Hitler lost the election of March/April 1932 but was appointed Chancellor in January of 1933. An election in March of 1933 solidified the Nazi hold on power. The reference to a "protest" candidate probably goes to the German Communist Ernst Thälmann, who came in third, stealing votes from centrist Otto Wels.


MrMike said...

If and when we get out from under Trump historians will not be kind to Nancy Pelosi's dithering on impeachment.

Ivory Bill Woodpecker said...

Naaaah. Cadet Bone Spurs lacks the, ahem, gonadic fortitude to do that.

Now, if it were his puppeteer Putin in the Oval Office, then yes, I would be afraid.

Anonymous said...

That sounds about right.

@Ivory Bill, the problem is that Trump is Putin’s puppet, and that they are working from a masterful plan and a clever script.

@Mike, historians will note as well the absolute choke hold that Trump and his backers have on those brainless worms known as Republicans. Not even the guy who is going to retire could vote with the Dems and the Independent Amash, former R.

I keep hoping that some miracle might occur. Something like a massive data dump exposing all the corrupt and dirty deals that have delivered us this mess.