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A Frightening Article in the Atlantic on the Emergency Powers of the President; Libertarians Need to Add This to Their To Do List!

I am skeptical of the Atlantic; good writing of course. I respect good writing. But they seem too anti-Trump for my liking. This article is both good writing and too anti-Trump. But this article got my attention right away:

What the President Could Do If He Declares a State of Emergency

Here is the link and below are a few selected highlights:

Unknown to most Americans, a parallel legal regime allows the president to sidestep many of the constraints that normally apply. The moment the president declares a “national emergency”—a decision that is entirely within his discretion—more than 100 special provisions become available to him. While many of these tee up reasonable responses to genuine emergencies, some appear dangerously suited to a leader bent on amassing or retaining power. For instance, the president can, with the flick of his pen, activate laws allowing him to shut down many kinds of electronic communications inside the United States or freeze Americans’ bank accounts. Other powers are available even without a declaration of emergency, including laws that allow the president to deploy troops inside the country to subdue domestic unrest.

Goitein, Elizabeth, Jan/Feb 2019 Atlantic

OOPS! Maybe those “tin-foil hat” fellows and gals are owed an apology!

President George W. Bush took matters a giant step further after 9/11. His Executive Order 13224 prohibited transactions not just with any suspected foreign terrorists, but with any foreigner or any U.S. citizen suspected of providing them with support. Once a person is “designated” under the order, no American can legally give him a job, rent him an apartment, provide him with medical services, or even sell him a loaf of bread unless the government grants a license to allow the transaction. The patriot Act gave the order more muscle, allowing the government to trigger these consequences merely by opening an investigation into whether a person or group should be designated.

Designations under Executive Order 13224 are opaque and extremely difficult to challenge. The government needs only a “reasonable basis” for believing that someone is involved with or supports terrorism in order to designate him. The target is generally given no advance notice and no hearing. He may request reconsideration and submit evidence on his behalf, but the government faces no deadline to respond. Moreover, the evidence against the target is typically classified, which means he is not allowed to see it. He can try to challenge the action in court, but his chances of success are minimal, as most judges defer to the government’s assessment of its own evidence.


Yep, can’t blame President Obama (or Trump) for that one! But try this:

Americans have occasionally been caught up in this Kafkaesque system. Several Muslim charities in the U.S. were designated or investigated based on the suspicion that their charitable contributions overseas benefited terrorists. Of course if the government can show, through judicial proceedings that observe due process and other constitutional rights, that an American group or person is funding terrorist activity, it should be able to cut off those funds. But the government shut these charities down by freezing their assets without ever having to prove its charges in court.



After two courts ruled that the government’s actions against American charities were unconstitutional, Barack Obama’s administration chose not to appeal the decisions and largely refrained from further controversial designations of American organizations and citizens. Thus far, President Trump has followed the same approach.


After a scary scenario about President Trump becoming a legal dictator that I am sure will be turned into a movie in 2020 (read the article! It would be ironic if this movie were done to attempt to influence the election by those who otherwise seek to overthrow Citizens United that may well give them the right to do so! But I digress.) the conclusion of the writer is for the Congress to reform emergency powers.

Congress, of course, will undertake none of these reforms without extraordinary public pressure—and until now, the public has paid little heed to emergency powers. But we are in uncharted political territory. At a time when other democracies around the world are slipping toward authoritarianism—and when the president seems eager for the United States to follow their example—we would be wise to shore up the guardrails of liberal democracy. Fixing the current system of emergency powers would be a good place to start.


I disagree with Goitein’s characterization of the present President. But I respect her work and the work of the Brennan Center. The Libertarian Party needs to add this to their national platform and libertarians of any affiliation ought to adopt this and do something about it.

About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

2 Responses to “A Frightening Article in the Atlantic on the Emergency Powers of the President; Libertarians Need to Add This to Their To Do List!”

  1. Paul Thiel says:

    Authoritarian! You mean like trying to curtail the 80 percent+ liberal press and including Google and their total censorship of conservative speech!
    The president is doing the opposite of anything authoritarian-or you mean like firing James Comey or not making the bogus FISA Warants public or insisting that Hillary and John Podesta not get investigated for having unsecured servers ? I guess the sacrosanct Clinton Foundation is totally above board and had every right to sell uranium rights to the Russians or pay big bucks to have Trump investigated before the election. Oh yeah, I know Bill Clinton met on the Tarmac with Loreta Lynch to discuss the grandkids !
    Nothing there authoritarian-just my imagination!


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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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