president declares state of emergency

This article was prepared by the distinguished retired judge John H. Wilson.

In 2009, then-President Barack Obama declared a National Emergency to combat an outbreak of Swine Flu. At that time, no one seriously argued that this was an overreach and abuse of the President’s powers, and in fact, the then-Senate minority leader, Mitch McConnell (R-KY), pledged his support for the President.

How then could it be that just 10 years later, an exercise of Presidential power to combat a significant increase in illegal immigration at the US-Mexico border is suddenly an abuse of power?

Under the National Emergencies Act of 1976, Title II, Section 201 (a), “during the period of a national emergency…the President is authorized to declare such national emergency. Such proclamation shall immediately be transmitted to the Congress and published in the Federal Register.”

Such Emergencies are not supposed to last forever. Under Section 202(a), “(a)ny national emergency declared by the President in accordance with this title shall terminate if— (1) Congress terminates the emergency by concurrent resolution; or (2) the President issues a proclamation terminating the emergency.”

The Authority to declare a National Emergency is not open-ended. Under Section 301, “When the President declares a national emergency, no powers or authorities made available by statute for use in the event of an emergency shall be exercised unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act.” This is an important proviso, preventing any President from declaring a National Emergency without reference to existing laws which empower the government to act in the first place.

Since 1976, President Trump’s predecessors have declared 54 National Emergencies. 28 are still in effect. 11 of those were declared by President Obama out of a total of 13. 10 by President Bush are still in effect of the 12 he declared. 17 were declared by President Clinton – 6 remain outstanding. President Carter only declared 2, but one of those remains outstanding (dated November 14, 1979, blocking the property of the Iranian Government under the jurisdiction of the United States). Only President Reagan (6 declared Emergencies) and President Bush the Elder (4) closed all Emergencies they declared in the course of their administrations.

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Of the 28 still in effect, the majority block the assets of countries and/or persons involved in actions such as “Contributing to the Conflict in Somalia” (declared April 12, 2010) or “Engaging in Significant Malicious Cyber-Enabled Activities” (declared April 1, 2015).

As required by Section 301, a declaration of a National Emergency must state the basis for the President’s exercise of his power to declare an Emergency. For instance, on February 25, 2011, President Obama blocked “Property and Prohibit(ed) Certain Transactions Related to Libya.” In his declaration, the President cited to the International Emergency Economic Powers Act, 50 USC 1701, which gives the President the power to “deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States.”

Exercising his power to declare a National Emergency, on February 15, 2019, President Donald Trump issued a proclamation “Concerning the Southern Border of the United States.” “I hereby declare” the document states, “that this emergency requires use of the Armed Forces and…that the construction authority provided in (the) United States Code, is invoked and made available, according to its terms, to the Secretary of Defense and, at the discretion of the Secretary of Defense, to the Secretaries of the military departments.” The declaration also provides authority to the Secretary of Defense, and to the Secretaries of the various military departments, to “order as many units or members of the Ready Reserve to active duty as the Secretary concerned, in the Secretary’s discretion, determines to be appropriate to assist and support the activities of the Secretary of Homeland Security at the southern border.”

The President grounded his authority in two laws; 10 USC Section 12302, which provides for the “Secretary concerned” to “order any unit..to active duty for not more than 24 consecutive months” in the event that the President declares a National Emergency; and 10 USC Section 2808, which provides for “Construction authority in the event of a declaration of war or national emergency.”

The report concludes tomorrow

Photo: President Trump delivers State of the Union address (White House photo)

Quick Analysis

What Would War with Taiwan be Like

There is a coming conflict with Taiwan. What remains uncertain is the nature of that conflict. A newly released report this week by the Global Taiwan Institute’s (GTI) John Dotson argues that political warfare is a key component of the Chinese Communist Party’s (CCP) attempt to undermine and achieve annexation of Taiwan. The CCP’s goal, he says, is to force the subjugation of the island’s citizens and democratic society and place it under “full CCP political Control.” Chinese directed propaganda and disinformation, elite cooption, political subversion, and coercive military and economic actions all are connected by a prominent link – they are actions intended for psychological effect. They are also methods of political warfare in an ongoing, persistent, and multi-faceted campaign against Taiwan. Information warfare used by Beijing against Taipei manipulates the news to change the attitudes of the population. Is it working? Dotson says that China is successfully exercising influence of “content and editorial coverage in traditional media outlets such as newspapers and television news channels, largely by leveraging influence through local proxy figures—in particular, wealthy businesspersons who have extensive financial equities in China.” He suggests that Beijing employs a “pink model” to push pro-CCP content into social media news feeds, not unlike what China does inside the United States. Using algorithmic targeting, Beijing is able to attack selected demographic targets who are more vulnerable to disinformation. Its goal is to further sow confusion and reduce cognitive resistance to pro-CCP’s narratives. Encouraging a population to believe false information by reducing a group’s opposition to it is a common practice among intelligence agencies and politicians alike. First, a population is provided with several scenarios that are easily accepted as true. In a simple example, one might read that at noon the sun is high in the sky, the clock says 12:00 pm, and many people are eating lunch. These points are easily accepted as true. The human brain at this point becomes more susceptible to accepting new information that may be false as it is programmed to let its guard done. The CCP follows by planting real information among false facts to make it easier to accept and digest. It doesn’t stop at disinformation, Beijing is also leveraging its toolkit in a related field, “legal warfare (法律戰), to promote its interpretation of international law and diplomatic practice. Yet another major category of concern in the CCP’s political warfare against Taiwan is known as “gray zone operations.” These are more closely related to military actions and include activities such as the aerial and maritime encroachment of Taiwan’s territory. The goal is to erode the concept of sovereignty and security. The United States is experiencing “gray zone” operations on our own southern border. In Taiwan, these include China’s overflight of Taiwan’s airspace by military aircraft. These events are increasing in both number and intensity as they grow close to the island itself. Simultaneously, China’s PLAN (People’s Liberation Army Navy), through its coast guard “law enforcement” operations are challenging Taipei’s outer islands. Dotson points out that the “paramount objective in such operations is the intended psychological effect on Taiwan’s population.” Another related area according to the GTI report is increasing economic coercion. China is attempting to deny Taiwan market access, ban its imports, and limit politically-oriented trade and investment opportunities. The intent is to “punish groups within Taiwan for developments to which Beijing objects, to isolate Taiwan internationally, and to pressure other countries and international companies to conform to Beijing’s preferred policies on Taiwan,” says Dotson. To date, Taiwan has suffered from attempts to ban Taiwan’s export of agricultural products. Beijing has also punished countries who willingly import from Taiwan and have close relations with Taipei. Perhaps one of the most misunderstood areas of China’s political warfare campaign against Taiwan revolves around its “united front work.” This embraces a range of measures that Dotson says include both financial and psychological cooption and include the use of front organizations and political subversion. In Taiwan, China is coopting business and political elites, funding and manipulating local organizations (temple societies) and offering support to fringe political parties that can be used to destabilize Taiwan and spread the CCP’s propaganda. Western militaries analyze the likelihood of kinetic warfare but spend less time on the impacts of political warfare. The free world cannot overlook what is happening in Taiwan and needs to recognize that Chinese political warfare extends across the globe. Beijing may not need to physically capture the island by force if it wins using a clandestine political warfare model of conflict. Then the question becomes, “Who is next?” Daria Novak served in the U.S. State Dept. Illustration: Pixabay