President Donald Trump has an expansive view of how much unchecked power the U.S. chief executive can wield. For example, in a speech back in July 2019, he asserted, “I have an Article II, where I have to the right to do whatever I want as president.” The Article II to which Trump was referring is the section of the U.S. constitution that outlines the powers given to the president. Among other things, that article requires that the president “shall take care that the laws be faithfully executed.” An ordinary language reading of that section does not prima facie suggest that it gives a president the right to whatever he or she wants to do.
More recently, during a March 12 White House press availability, Trump was asked if he was going to declare a national emergency in response to the coronavirus pandemic. “We have very strong emergency powers under the Stafford Act,” responded the president. He then added, “I have the right to do a lot of things that people don’t even know about.”
In a chilling op-ed in The New York Times, Brennan Center legal scholars Elizabeth Goitein and Andrew Boyle suggest that Trump’s statement could be referring to the secret powers that previous presidents have granted themselves in “presidential emergency action documents.” As Goitein and Boyle explain:
These documents consist of draft proclamations, executive orders and proposals for legislation that can be quickly deployed to assert broad presidential authority in a range of worst-case scenarios….These include suspension of habeas corpus by the president (not by Congress, as assigned in the Constitution), detention of United States citizens who are suspected of being “subversives,” warrantless searches and seizures and the imposition of martial law.
As the coronavirus pandemic worsens, it is not far-fetched to think that President Trump might seek to exercise the heretofore secret emergency powers delineated in the documents. “Even in the most dire of emergencies, the president of the United States should not be able to operate free from constitutional checks and balances,” they argue. “Presidential emergency action documents have managed to escape democratic oversight for nearly 70 years. Congress should move quickly to remedy that omission and assert its authority to review these documents, before we all learn just how far this administration believes the president’s powers reach.”
It is way past time for Congress to rein in unconstitutional assertions of executive power by exposing and incinerating these secret presidential emergency action documents. Meanwhile, President Trump needs to adhere to his Article II oath: “I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”