Recently after declaring, “It’s a war,” President Trump asked for sweeping emergency authority to combat the coronavirus crisis. Was that a figure of speech, a necessary first step in invoking the Korean War-era Defense Production Act to speed manufacture of much-needed medical equipment and supplies, an effort to reclaim legitimacy after the impeachment trial, or an audacious grab for power?
In a time of crisis, some people will be tempted to endorse what a political scientist might call “executive unilateralism,” in which the head of government is vested with vast discretionary powers and becomes a strongman, even a dictator. Some believe this has happened occasionally in United States history, so we must ask: How do we give the president the tools he must have without transforming the U.S. into a Russia-style security state in which the temporary concentration of power cannot be reversed?
The simple answer is scrupulous adherence to the rule of law. A local elected official recently was asked whether he had the legal authority to make an emergency order he had issued. The office holder defended himself by asserting that he had the moral authority to act. Perhaps, but that argument creates a very slippery slope.
What are the lessons of history? There always are some. Abraham Lincoln, a Republican, was president during the greatest crisis in our nation’s history, the Civil War of 1861 to 1865, which cost 750,000 American lives on and near battlefields in a population of fewer than 35 million. According to historian David Herbert Donald, in a 70-year-old essay, in peacetime Lincoln might have been a “Whig in the White House,” a passive president who deferred to Congress in most policy matters. Instead, Lincoln became one of the foremost activist presidents of all time. Lincoln’s critics, then and now, denounce him as a tyrant, principally for suspending the writ of habeas corpus to allow the jailing of some political opponents and for issuing the Emancipation Proclamation, an executive order that purported to free hundreds of thousands of enslaved people.
Those are facts, but I would suggest that Lincoln was responding to an existential threat to American democracy posed by huge rebel armies, some not far from Washington, so his assertive leadership was necessary to suppress the rebellion.
Nearly 60 years later, during World War I, progressive Democrat Woodrow Wilson signed into law bills passed by Congress that led to serious abuses of civil liberties. Were Lincoln and Wilson different? Lincoln acted out of military necessity during an extraordinary domestic crisis. In contrast, the threat to the U.S. during an essentially European war was minimal, and the perceived risk of the spread of political radicalism following the Russian Revolution was wildly exaggerated. Abridging civil liberties in 1917 and 1918 was simply unnecessary to win the war.
Franklin Roosevelt was the greatest president of the 20th century, but he might have learned the wrong lesson from serving as President Wilson’s Assistant Secretary of the Navy. In early 1942, shortly after the Japanese attack on Pearl Harbor brought the U.S. into World War II, Roosevelt issued an executive order allowing the Army to intern more than 100,000 West Coast Japanese citizens and Japanese Americans, one of the worst violations of civil rights in our history. Despite the Supreme Court’s infamous conclusion in 1944, there was no military justification for this notorious incident.
Most Americans do not want fundamental change to concentrate power in the president, whomever he or she is. Nearly 250 years ago, the Founders fought a war for independence to free the American people from the tyrannical near-absolute monarchy. Could they have foreseen an international public-health crisis so severe that it threatened a global economy? Probably not. However, the foundations of our society, government, and way of life must continue.
As a safeguard against risky consolidated executive authority, there clearly should be a two-part standard for expanding the president’s wartime powers: First, fundamental individual liberties and civil rights must be protected; and, second, there should be credible, enforceable guarantees that the expanded powers will revert to normal as soon as the crisis ends.
What I am recommending has precedent. The notorious Sedition Act of 1798, passed during a “quasi war” with France, expired by law in 1801, and the equally offensive Sedition Act of 1918, passed during World War I, was repealed in 1920.
We live in a strange new world. Accepting President Trump’s rationale for enlarging his powers beyond ordering increased production of medical equipment and supplies would make it worse.
Steven S. Berizzi is a professor of history and political science, at Norwalk Community College.
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