The state of emergency to allow the construction of a wall on the US-Mexican border. The option that Donald Trump seems increasingly inclined to take would also allow him to access a wide range of extraordinary powers.
Donald Trump reiterated it during his trip to the Mexican borderThursday 10 January: the American president is ready to invoke, by executive decree, the state of emergency to make build his anti-migrants wall. It could thus bypass the political blockage at the origin ofshutdown"That paralyzes the US administration since 21 days. The president could then do without the approval of parliamentarians to find funding for his wall.
The assumption of recourse to this procedure is worrying in the United States. The American journalist and specialist in the history of concentration camps, Andrea Pitzer, even evokes, in the The Washington Postthe specter of Nazism to warn against the temptation of the state of emergency. It would be, for her, the proof of an authoritarian drift of Donald Trump.
Near 60 states of emergency since 1976
Yet the current president would be far from being the first to invoke this device. Since 1976, when Congress established a framework for recourse to the state of emergency, it has been introduced 58 times for multiple reasons. George W. Bush resorted to it after the September 11 2001 attacks to deal with the terrorist threat, while many presidents used it to impose sanctions on foreign countries, such as Iran or Cuba. Donald Trump's predecessor, Barack Obama, also used it at the time of 2008's financial crisis.
In fact, the United States has been living in a state of permanent emergency for decades, since 31 national emergency declarations are still in effect, calculated the Brennan Center of Justicean institute of law and politics in New York. "It has become an almost innocuous gesture for successive presidents to renew states of emergency from one year to the next", note Elizabeth GoitenDirector of the Brennan Center of Justice.
But this time, it would be different. The state of emergency has always been declared in a serious and imminent crisis, such as a war (Vietnam), a terrorist threat (attacks of 2001), a natural or economic disaster (2008 crisis). Hard to say as much about the construction of a wall on the Mexican border, despite Donald Trump's alarmist talk about the "threat" of migration.
However, if he decides to resort to it, it would be difficult to oppose it. "The president can totally discretion to decide to resort to the state of emergency," said Elizabeth Goiten. The Congress can, of course, go to court to challenge its merits, but it has never done so. Above all, the courts risk being very reluctant to agree to take the place of the head of the executive - the constitutional guarantor of national security - to assess whether a situation constitutes a national emergency, the New York Times points out.
A hundred extraordinary dormant powers
The state of emergency would open a vast field of possibilities for Donald Trump. In theory, the latter has no obligation to limit himself to decisions to build the wall. Over the years, Presidents and Congress have defined 136 dormant powers, so called because the White House tenant can only use them in a state of emergency.
These exceptional prerogatives,ompiled by the Brennan Center for Justiceare supposed to quickly put an end to a crisis situation, where the obligation to obtain a congressional agreement would otherwise have taken too long. But they "can also be direct threats to democracy in the wrong hands," says journalist and historian Andrea Pitzer.
The president may, for example, freeze bank accounts, seize or close a radio, prohibit access to certain websites and even suspend the ban on testing chemical or biological weapons in human guinea pigs. More than 90 these powers can be used in a completely discretionary way. The others require the agreement of the head of a concerned administration, that is, someone appointed by the president.
Two of these prerogatives could be useful for financing and building the border wall, according to the New York Times. One allows him to divert funds from military projects that he considers non-essential for other constructions more urgent in his eyes. The other authorizes him to start military projects which had not been approved by the Congress, if these buildings serve to counter the threat which weighs on the country.
American history has shown that American presidents may have been tempted to abuse these vast powers. During the Second World War, Franklin D. Roosevelt used it to order the internment of all Americans with Japanese origins. A measure that concerned 125 000 people, some of whom were children, and who is considered one of the "Black spots of modern American history".
But since then, the Congress has tightened the rules governing the state of emergency. The National Emergency Act has been adopted in 1976 to avoid these drifts of the past. It obliges, in particular, the president to indicate precisely to parliamentarians what extraordinary powers he intends to invoke. Since this law of 1970 years, the state of emergency is, moreover, no longer automatically renewed every year, and the chief executive must renew it.
The Congress also gave itself the power to put an end to a state of emergency by a simple majority vote in each of the chambers. But this text, like any law, can be subject to a presidential veto, in which case, only a two-thirds majority vote in both houses would allow elected officials to go against the presidential will.
A device that explains why the state of emergency has not posed any democratic problem in the United States for more than 40 years, ensures the Politico site. "The temptation of Donald Trump to establish the state of emergency poses no existential danger to American democracy," says the article. If the president decided to invoke extraordinary powers unrelated to the construction of the wall, he would be all the more likely to be censured by the courts.
Politico acknowledges, however, that Donald Trump may create a dangerous precedent. He considers that resorting to this procedure to break a political stalemate, "looks like a state of emergency 'comfort' rather than to face a real crisis. A way to trivialize a device that offers, however, extraordinary powers.
This article appeared first on https://www.france24.com/fr/20190111-trump-etat-urgence-mur-mexique-pouvoir-exceptionnel-president