Fifteen Eighty Four

Since his election in 2016, President Donald Trump has disregarded many democratic norms and practices. He has harshly criticized the leaders of other democracies, praised dictators, pardoned political allies, called for the arrest of political opponents, threatened to sue journalists over critical coverage, and exacerbated existing racial tensions by scapegoating minorities and immigrants. But his declaration of emergency in order to obtain funding for a wall along the US-Mexico border, which Congress had previously denied him, is particularly troubling.

Congress, not the president, has the constitutional authority to appropriate funds. Other US presidents have invoked the powers of the National Emergencies Act of 1976 to impose sanctions on foreign governments or agents, to change trade regulations, or (more rarely) to mobilize resources in response to an epidemic, a natural disaster, or an act of war. No other president has asked Congress for funding, been denied, and then used an emergency declaration to bypass them. The fact that border apprehensions have dropped significantly over the past two decades makes the assertion of an emergency even more puzzling in the US context.

A heavy-handed use of emergency powers is common in states under authoritarian rule. For instance, Egypt was under a state of emergency for 54 of the last 62 years. Its emergency declarations, often initiated (unlike Trump’s) in response to actual acts of terrorism, allowed the suppression of peaceable dissenters.  In Turkey, the Philippines, Venezuela and many other countries, leaders have been widely accused of declaring emergency arbitrarily in order to consolidate power in their own hands, subverting the law and the will of the people.

My book Colonialism, Neo-Colonialism, and Anti-Terrorism Law in the Arab World discusses the notion of ‘authoritarian ambition’, the desire to control and even destroy legal and constitutional principles in order to enable the ruling individual or group to remain in power. Usually authoritarianism is discussed as a problem of countries with high centralization and limited political freedom. But today we see figures with authoritarian ambitions rising to power in some flawed democracies—including the US, which has long proclaimed itself to be the champion of democracy—and employing tactics similar to those followed by more traditional authoritarian regimes.

However, the US still has a system of checks and balances. The legislative branch is objecting to the encroachment on their powers: the US House of Representatives has already passed a resolution disapproving President Trump’s emergency declaration, and the Senate, which is controlled by the president’s party, seems poised to pass the same resolution. Legal challenges have been filed in federal courts; while there have been concerns about those courts being packed with conservative judges, this has not always led to decisions in President Trump’s favor. Journalists are still free to speak, and many—including some conservatives—have sharply criticized the emergency declaration as unconstitutional. Polls found that a majority of Americans disapproved of the declaration and said it would make them less inclined to vote for President Trump. While there has been growing concern about voter ID laws and voter roll purges, US citizens are still mostly free to vote. These democratic checks and balances can keep the US from sliding into authoritarianism, if its citizens and institutions use them diligently.