What Trump Could Do If He Declares a State of Emergency - By Elizabeth Goitein Program Director, Brennan Center December 8, 2018

A president’s emergency powers are extensive, and largely unchecked.

As a result, the president has access to emergency powers contained in 123 statutory provisions, as recently calculated by the Brennan Center for Justice at NYU School of Law, where I work. These laws address a broad range of matters, from military composition to agricultural exports to public contracts. For the most part, the president is free to use any of them; the National Emergencies Act doesn’t require that the powers invoked relate to the nature of the emergency. Even if the crisis at hand is, say, a nationwide crop blight, the president may activate the law that allows the secretary of transportation to requisition any privately owned vessel at sea. Many other laws permit the executive branch to take extraordinary action under specified conditions, such as war and domestic upheaval, regardless of whether a national emergency has been declared.

1. AN INTERNET KILL SWITCH?

These laws vary dramatically in content and scope. Several of them authorize the president to make decisions about the size and composition of the armed forces that are usually left to Congress. Although such measures can offer needed flexibility at crucial moments, they are subject to misuse. For instance, George W. Bush leveraged the state of emergency after 9/11 to call hundreds of thousands of reservists and members of the National Guard into active duty in Iraq, for a war that had nothing to do with the 9/11 attacks. Other powers are chilling under any circumstances: Take a moment to consider that during a declared war or national emergency, the president can unilaterally suspend the law that bars government testing of biological and chemical agents on unwitting human subjects.

The president could seize control of U.S. internet traffic, impeding access to certain websites and ensuring that internet searches return pro-Trump content as the top results.

One power poses a singular threat to democracy in the digital era. In 1942, Congress amended Section 706 of the Communications Act of 1934 to allow the president to shut down or take control of “any facility or station for wire communication” upon his proclamation “that there exists a state or threat of war involving the United States,” resurrecting a similar power Congress had briefly provided Woodrow Wilson during World War I.

We live in a different universe today. Although interpreting a 1942 law to cover the internet might seem far-fetched, some government officials recently endorsed this reading during debates about cybersecurity legislation. Under this interpretation, Section 706 could effectively function as a “kill switch” in the U.S.—one that would be available to the president the moment he proclaimed a mere threat of war. It could also give the president power to assume control over U.S. internet traffic.

The potential impact of such a move can hardly be overstated. In August, in an early-morning tweet, Trump lamented that search engines were “RIGGED” to serve up negative articles about him. Later that day the administration said it was looking into regulating the big internet companies. “I think that Google and Twitter and Facebook, they’re really treading on very, very troubled territory. And they have to be careful,” Trump warned. If the government were to take control of U.S. internet infrastructure, Trump could accomplish directly what he threatened to do by regulation: ensure that internet searches always return pro-Trump content as the top results. The government also would have the ability to impede domestic access to particular websites, including social-media platforms. It could monitor emails or prevent them from reaching their destination. It could exert control over computer systems (such as states’ voter databases) and physical devices (such as Amazon’s Echo speakers) that are connected to the internet.

Moreover, if Trump were to attempt any degree of internet takeover, an explosion of lawsuits would follow. Based on its First Amendment rulings in recent decades, the Supreme Court seems unlikely to permit heavy-handed government control over internet communication.

https://www.defenseone.com/threats/2018/12/what-trump-could-do-if-he-declares-state-emergency/153366/

Elizabeth Goitein is co-director of the Liberty & National Security Program at the Brennan Center for Justice at NYU School of Law.

https://twitter.com/lizagoitein?lang=en

https://twitter.com/TheAtlanticPR/status/1071068423168368640

https://www.brennancenter.org/blog/trump-hidden-powers

Trump’s Emergency Powers Are 'Ripe for Abuse' - https://www.theatlantic.com/video/index/577249/emergency-powers/