The Good Fight

National Emergencies Are for Autocrats

Trump’s proposed executive order to build his border wall is the clearest sign yet he’s abusing the presidency.

A young Mexican boy peers from the Mexican side of a border fence.
A young Mexican boy peers from the Mexican side of the border fence in Texas. Paul Ratje/AFP/Getty Images

Donald Trump has now been the president of the United States for two years, and many of the most sensational predictions for his time in office have not come to pass. The press remains rambunctious. Americans aren’t scared to criticize the president. Courts continue to rule against the White House with reassuring regularity. Elections are, as the Democrats’ big victory in the midterm elections strikingly demonstrated, still free. So perhaps those of us who have warned about the president’s authoritarian ambitions really have, as a prominent conservative told me during a recent TV debate, been suffering from a bad case of Trump Derangement Syndrome all along?

The president’s intention to issue an executive order declaring a national emergency at the southern border suggests otherwise. In fact, it is hard to imagine a clearer piece of evidence that he really does seek unconstitutional powers: If Trump’s past attacks on the legislature and the judiciary have, at times, felt like a drill, his intention to arrogate vast powers to himself under an utterly transparent pretext is the real deal.

Americans often like to imagine that their system of checks and balances is a secure bulwark against the threat of autocracy. But in reality, no set of political institutions is, in and of itself, enough to constrain a popular and power-hungry president intent on destroying the republic. One of the reasons for this is the classic problem of the state of emergency, with which political philosophers and students of the law have grappled ever since the Roman Republic.

As Cicero argued in De Legibus, the safety of the people is the highest law; when a polity faces some unforeseen emergency, there may thus be urgent and legitimate need to loosen some of the ordinary legal restrictions on the powers of the highest magistrate. At the same time, it is obvious that any legal recognition of the need for emergency powers creates a huge opportunity for abuse; if an aspiring autocrat declares a false emergency, he would instantly be liberated from the usual constraints on his power. The history of the 20th century demonstrates that this is no abstract concern: From Adolf Hitler in Germany to Ferdinand Marcos in the Philippines, some of the most brutal dictators of the past hundred years have consolidated their power by exploiting emergency legislation.

It would be tempting to think that a similar course of action would be impossible in the United States because the Constitution creates such potent limits on the power of the president. But the differences between the powers that American presidents have traditionally exercised during states of emergencies and those granted by the infamous Article 48 of the Constitution of the Weimar Republic are a matter of degree, not of kind. As a recent article in the Atlantic argues, President Trump could “do all kinds of extraordinary things” by declaring a national state of emergency, “from seizing control of the internet to declaring martial law.”

If American democracy has enjoyed astounding longevity, then, it is because two key safeguards have historically ensured that presidents have not arrogated tyrannical powers to themselves. The first is that American citizens have long had a strong commitment to democratic values, which made them very reluctant to vote for candidates who displayed authoritarian tendencies. A few presidents, like Andrew Jackson, have been elected as strongmen with a dubious commitment to the rule of law. Others, like Richard Nixon, have bristled against constraints on their power in the (imagined) privacy of the Oval Office. But the vast majority have not abused emergency powers, or played other forms of extreme “constitutional hardball,” because they had a deep commitment to preserving the republic.

The second is that the president’s counterparts in Congress have, in the past, made it clear that they would stand up to him if he overstepped the constitutional boundaries of the executive in a blatant manner. Perhaps the most impressive instance of this came when Franklin Delano Roosevelt, understandably frustrated by the Supreme Court’s string of rulings against the New Deal, threatened to pack the court; even though he was extremely popular, some of his closest allies in the Senate made clear that they would refuse to confirm his nominees. Though FDR might have tried to pass the same legislation under the pretext of a national emergency, this effectively demonstrated how high a political price he would have had to pay for infringing on the powers traditionally enjoyed by Congress or the Supreme Court—and he mostly desisted from further attempts to undermine other branches of government.

These two key safeguards are now failing. For one, no successful candidate for the highest office in the land has ever attacked the very idea of legitimate political competition as openly and blatantly as Donald Trump. From his call to lock up his chief political opponent to his constant denunciation of independent judges and critical members of Congress, his desire for unconstrained power is in scary evidence.

For another, it is hard to recall a juncture in American history in which the president’s congressional supporters have been so willing to do his bidding. Mitch McConnell is an especially striking study in the dereliction of duty. Over the past weeks, the Senate majority leader has made clear that declaring a state of national emergency over the southern border would constitute an abuse of presidential powers. When, on Thursday, Trump announced his intention to declare a national emergency over—let’s see—the southern border, McConnell immediately vowed his support.

As I have argued before, the most powerful—as well as the most poorly understood—trick in the populist’s toolkit is the ability to engage in “salami tactics.” When they set out to expand their power, populists usually do so one small slice at a time, issuing false pretexts for executive action and fake reasons for the “reform” of independent institutions. As a result, no single action by the executive seems like an existential threat to the rule of law. Without any clear moment of juncture, the system of checks and balances slowly decays.

What is striking about Trump’s intention to declare a state of emergency for such transparently fraudulent reasons is that he isn’t even bothering to engage in salami tactics. This is about as clear an attack on the constitutional order as political scientists could have dreamed up for some in-class exercise on the rise of dictatorship. If Republican senators like Mitt Romney and Ben Sasse are not willing to stand up to Trump’s cheap power grab now, they never will. And if the president’s many opponents cannot take to the streets to oppose his autocratic tendencies at this juncture, it is clear that they won’t do so until it’s far too late.

To be sure, none of this means that Trump is likely to follow in the footsteps of Ferdinand Marcos, or even Viktor Orbán. If there’s one thing that the past two years have demonstrated, it is that Trump lacks the vision or the discipline of most of the authoritarian populists who have successfully bent their countries’ institutions to their will. If there was a populist Olympics, Donald Trump would not make medal rank.

But Trump’s incompetence should make us all the more concerned about the long-term threat to American democracy. An evidently erratic and highly unpopular American president is about to declare a national emergency on grounds that everyone knows to be spurious. And yet, it is likely that he will experience only the mildest blowback from his political allies. What does that tell us about the damage that a shrewd and popular president with the capacity to follow the increasingly sophisticated playbook of authoritarian populism could inflict—especially if he could consolidate his powers under the cover of an actual emergency?