Jacob G. Hornberger |
The terrorists had just fire-bombed the German Parliament building. Even worse, it turned out that the terrorists were communists. German leader Adolf Hitler sought emergency powers to deal with the crisis. After heated debate within the German Reichstag, the German legislators gave Hitler the emergency powers that he was seeking.
The legislators made it clear, however, that the grant of these extraordinary powers was only temporary. Hitler dutifully returned to the Reichstag until the day he died to secure a periodic renewal of what became known as the Enabling Act.
President Trump is now threatening to declare an immigration emergency, which, he says, will give him the omnipotent authority to build his wall on the U.S.-Mexico border without congressional authority. That would, needless to say, constitute classic dictatorial conduct.
A close examination of both the Constitution reveals that there is no delegation of emergency powers to the president. There is also no authority given Congress to delegate emergency powers to the president.
We live under a governmental system in which Congress enacts the laws and the president carries them out. No matter how badly the president wants his wall, it is up to people’s elected representatives in Congress to make the decision. So far, they have said no. And yet, here is Trump declaring that he might just build his wall anyway, America’s democratic system be damned.
On what legal basis does Trump make such an extraordinary threat in a country that supposedly prides itself on being based on the democratic rule? Well, it turns out that in 1976, Congress enacted an Enabling Act of its own, delegating to the president the power to declare an emergency, as he defines it, and assume emergency powers to deal with it.
There is one big problem with all this: The U.S. Constitution. Only don’t expect the federal courts to declare Trump’s actions or Congress’s Enabling Act unconstitutional. When it comes to “national security,” the federal judiciary, including the Supreme Court, rolled over and deferred to the president and the national-security establishment a long time ago.
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The Constitution controls the actions of both the president and the Congress. It is the higher law that we the people have imposed on the federal government. The Constitution called the federal government into existence, not the other way around. And when it did, it made the federal government subject to the provisions, conditions, and limitations within the Constitution itself.
Soon after the federal government was brought into existence, the American people added ten amendments to the Constitution, which expressly limited the powers of the federal government in several ways.
A close examination of both the Constitution reveals that there is no delegation of emergency powers to the president. There is also no authority given Congress to delegate emergency powers to the president. And among the restrictions on power in the Bill of Rights, there is no exception for emergencies.
Trade wars with China and others have produced a farm crisis. Foreign interventionism has produced a terrorism crisis. It’s not difficult to see where this process ends. Just ask the Germans.
Does that mean that crises and emergencies were unheard of in the late 1790s? Of course not. There have been crises and emergencies throughout history. So, why then, didn’t anyone, including James Madison, who crafted the Constitution, include a delegation of emergency powers to the president or authorize the Congress to give him emergency powers?
The answer is: because our American ancestors knew that to include such powers or authority would serve to destroy the liberty of the American people.
Throughout history, people have lost their liberty at the hands of their own government during so-called crises or emergencies. It is particularly during those periods of time that freedom is most endangered, Crises and emergencies are the time-honored opportunities that political rulers use to seize dictatorial power. That’s how Hitler did it. It’s how dictators throughout history have done it. It’s how foreign dictators today do it.
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That’s why there is no grant of emergency powers to the president in the Constitution, the document that controls the actions of the president and the Congress. The Framers didn’t want the president to have emergency powers. Our ancestors also knew that historically rulers were prone to create or incite crises in order to have the justification for assuming dictatorial powers. In Hitler’s case, it has long been suspected that he had secret agents do the firebombing.
In the so-called immigration crisis on which Trump is basing his threat of assuming dictatorial powers, the “crisis” is one that is inherent to a system of immigration controls, which both political parties—Democrats and Republicans—have maintained for decades. The reason for this ongoing, never-ending crisis is simple: Being based on the socialist economic concept of central planning, immigration controls inevitably produce chaos and crises. That’s what socialism always does.
So, notice what Trump is doing: He’s seizing upon the chaos and “crisis” that his own socialist immigration system naturally produces as a justification for adopting dictatorial powers.
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And where does it end? Drug prohibition has produced a drug-war crisis. Social Security has produced a Social Security crisis. Medicare and Medicaid have produced a healthcare crisis. Out-of-control federal spending has produced a debt crisis. Trade wars with China and others have produced a farm crisis. Foreign interventionism has produced a terrorism crisis. It’s not difficult to see where this process ends. Just ask the Germans.
Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. This article was first published in The Future of Freedom Foundation and is republished here with permission. The views expressed in this article are the author’s own and do not necessarily reflect Global Village Space’s editorial policy.