The Perils of Emergency Power

Freedom Daily    September 2006  (posted online January 2007)

The Perils of Emergency Power

by James Bovard 

The New York Times reported on June 23 that President Bush invoked the International Emergency Economic Powers Act to justify warrantless searches of Americans’ and other people’s financial data. According to Treasury Undersecretary Stuart Levey, the U.S. government may have conducted “hundreds of thousands” of warrantless searches of Americans’ and others’ personal financial data. The Bush administration used broad administrative subpoenas to commandeer the personal data — simply a bureaucratic command to “give us the information.”  

The media paid little attention to the law the president invoked to justify the incursion; instead, almost all the coverage and analysis was consumed by harangues over whether the New York Times was guilty of treason for informing Americans of what the federal government was doing.

But the International Emergency Economic Powers Act (IEEPA) is not something safe to ignore. This law gives the president the prerogative to proclaim the existence of an “unusual and extraordinary threat … to the national security, foreign policy, or economy of the United States” that originates “in whole or substantial part outside the United States.” Once the president pushes this power, many of the limits to his other powers vanish.

This law was passed in 1977, codifying and slightly reforming some of the powers that Franklin Roosevelt had commandeered during the Great Depression.

In 1973, a congressional Special Committee on the Termination of the National Emergency reported,

Since March 9, 1933, the United States has been in a state of declared national emergency. In fact, there are now in effect four presidentially proclaimed states of national emergency: In addition to the national emergency declared by President Roosevelt in 1933, there are also the national emergency proclaimed by President Truman on December 16, 1950, during the Korean conflict, and the states of national emergency declared by President Nixon on March 23, 1970, and August 15, 1971.

These proclamations give force to 470 provisions of federal law. These hundreds of statutes delegate to the president extraordinary powers, ordinarily exercised by the Congress, which affect the lives of American citizens in a host of all-encompassing ways. This vast range of powers, taken together, confers enough authority to rule the country without reference to normal constitutional processes.

These emergency decrees had resulted in some of the most devastating power grabs in U.S. history.

As a 2005 Congressional Research Service (CRS) report noted, Roosevelt’s proclamation was based, a “on the somewhat questionable authority of the Trading with the Enemy Act of 1917.” Roosevelt proclaimed a “bank holiday” — halting “a major class of financial transactions by closing the banks,” the CRS noted. When Congress passed the Trading with the Enemy Act during the First World War, congressmen were not thinking of average citizens in Omaha and Sioux Falls as the target of the legislation. Yet Roosevelt contorted the law to his purposes, and Congress effectively retroactively approved his action with new legislation.
Roosevelt’s gold seizure
On April 5, 1933, Roosevelt commanded all citizens to surrender their gold to the government. No citizen was permitted to own more than $100 in gold coins, except for rare coins with special value for collectors. Gold was thus turned into the same type of contraband substance that rum had been during Prohibition.

Roosevelt used the same “hoarding” rhetoric against anyone who owned gold that Stalin used against Ukrainian peasants who sought to retain part of their wheat harvest to feed their families. But while Stalin sent execution squads to kill peasants who had a few bushels of grain hidden in their hovels, Roosevelt was kinder and gentler, seeking only 10-year prison sentences for any citizen who retained more than five Double Eagle gold coins.
Nixon’s abuses of power
On August 15, 1971, President Nixon imposed wage and price controls, thereby effectively criminalizing tens of millions of actions every day. He based this seizure of power on the threat of inflation. But at the same time that his enforcement agents brought the weight of government (and the threat of criminal prosecution) upon the head of any business that did not kowtow to his guidelines, he also directed the Federal Reserve to flood the nation with new paper money.

At the same time that he undermined the value of the dollar, Nixon also closed the gold window, prohibiting foreigners from redeeming their dollars for anything more than a “tough luck” shrug from the U.S. government. Such powers may have helped inspire Secretary of State Henry Kissinger’s famous saying, “The illegal we do immediately. The unconstitutional takes a little longer.” The printing presses helped further a boom that ensured a second term for Nixon, at least until he was driven from office in disgrace.

Nixon’s abuses of power helped spur concern about the extent of emergency power. The 1973 congressional committee sought to “bring together the body of statutes, which have been passed by Congress, conferring extraordinary powers upon the Executive branch in times of national emergency.” But there were so many such provisions that no one had kept track of them. The committee’s report lamented,

This has been a most difficult task. Nowhere in the Government, in either the Executive or Legislative branches, did there exist a complete catalog of all emergency statutes. Many were aware that there had been a delegation of an enormous amount of power but, of how much power, no one knew. In order to correct this situation, the Special Committee staff was instructed to work with the Executive branch, the Library of Congress, and knowledgeable legal authorities to compile an authoritative list of delegated emergency powers.

Unfortunately, this did not persuade Congress to pull the plug on this nonsense. Instead, the 1977 act perpetuated many of the same powers.
Emergencies and power
The Public Papers of the Presidents contain notice after notice of the IEEPA’s being invoked. Yet, almost all of these national emergencies are as bogus as three-dollar bills.

In the last 15 years, the U.S. government has proclaimed international emergencies in order to justify boycotts against Haiti (1991–1994, because of a military coup), Liberia (2001–2004, because of human-rights violations), Sierra Leone (2001–2004, because of human-rights violations), and Libya (1986–2004, because of terrorism sponsorship). On its face, to claim that there is an international emergency because some sub-Saharan government is trampling its people’s rights is absurd. This is practically the job description of most of the governments in that part of the world. Yet issuing this label permits presidents to strut around and act as though they have a magic wand to inflict justice upon the world. IEEPA allows the feds to prohibit all trade and levy heavy penalties on Americans who buy and sell from people of whom U.S. politicians do not approve.

The IEEPA was continually invoked by three presidents to justify the blockade of Iraq, which lasted from 1990 to 2003. The sanctions on Iraq resulted in boosting the infant and young-child mortality rate by 150 percent. Columbia University professor Richard Garfield, an epidemiologist and an expert on the effects of sanctions, estimated in 2003 that the sanctions had resulted in 343,900 to 529,000 infant and young-child fatalities.

Apparently, in the eyes of presidents George H.W. Bush, Bill Clinton, and George W. Bush, America would have been gravely threatened if the blockade had not ravaged the children of Iraq — and the entire economy.

The IEEPA can give the government boundless arbitrary power over how Americans spend their money. As Wikipedia noted,

The Department of Justice has brought IEEPA charges against Americans who travelled to Iraq in advance of the 2003 invasion to act as human shields, on the basis that they spent money while in Iraq.

According to the feds, Americans in effect automatically became criminals when they got in the way of the Pentagon’s killing of foreigners. The notion that the pittances that dissident Americans spent in Baghdad prior to “Shock and Awe” somehow created an “international economic emergency” is total hokum. Yet, federal prosecutors solemnly filed such charges in court.

The current IEEPA case — involving Bush’s order to conduct warrantless financial surveillance — may yet draw attention to the underlying power that he used. In the coming weeks and months, other details of the surveillance scheme may leak out. It is likely that the government has gone much further than Americans yet realize.

Unfortunately, neither Congress nor the courts have done much to restrain “emergency” power grabs. As Robert Higgs and Charlotte Twight noted in a 1987 study for the Independent Institute,

The [Supreme] Court has ruled on several occasions on the permissibility of emergency powers; these decisions constitute a melancholy chapter of constitutional history, a record of evasion and capitulation of the judicial function against which many justices on the minority side have objected.

In the era of the Founding Fathers, Americans referred to “emergency” as “the tyrant’s plea.” Unfortunately, far too many Americans have forgotten why tyranny is a bad thing. Instead, they wait to be rescued by politicians seizing absolute power. Too few Americans recognize that the loss of inviolable rights may be the biggest emergency of them all.


13 Responses to The Perils of Emergency Power

  1. Alpowolf January 5, 2007 at 4:48 pm #

    The word “emergency” does get seriously abused nowadays. It’s not just a favorite trick of politicians; I work in the IT industry, and I hear the word invoked frequently simply because a piece of paper isn’t where somebody wants it to be. I cause a certain amount of eye-rolling in my office because I don’t accept this use of the word.
    The same thing would happen back when I was in the navy (78-85). Mere bureaucratic bungles were regarded as “emergencies”.

    I wonder if our culture has simply gotten so fragile that people regard any bump in the road as a great calamity, and thus easily accept the politicians’ misuse of “emergency”.

  2. Jim January 5, 2007 at 11:33 pm #

    Excellent point. Someone else screws up and … Life as a Dilbert cartoon.

    I suspect people have gotten jumpier, if not more fragile.

    There are certainly lots of gullible ones out there – thus Bush’s successes thus far…

  3. Ryan Murphy January 6, 2007 at 3:09 pm #

    Excellent and imformative piece, Jim. I thought I knew everything about this, but I didn’t.

    “Crisis” is another word they abuse the hell out of. I think that word is one that the media misuses more than anyone else. When I hear both words used my reaction is to think to myself “how are we going to get screwed now?”

  4. Lois January 7, 2007 at 11:41 am #

    Bill Clinton had 8 years to get rid of those sanctions on Iraq, remove the bases from Saudi Arabia and make a just peace between the Israelis and Palestinians – all 3 of Osama bin Laden’s stated grievances that motivated 9/11. It was so strange to see the big kerfluffle about Path to 9/11 criticizing Clinton for not assassinating bin Laden rather than his real failures.

    Interesting about FDR ordering citizens to turn in gold. I don’t think people would have that kind of respect for authority today. I just saw Judy Woodruff on Meet the Press say she’s doing a program on the 18-25 year old generation and how they are different from other generations. One point was that they are closer to their parents. IMO, thats because their parents love them more than earlier generations loved their children. My parents had 2 draft age sons in the Vietnam years, one of whom did go into the army, and they had such respect for authority that they had no problem with the war. I remember my father saying we had to be over there because of some treaty obligation.

  5. Jim January 7, 2007 at 11:52 am #

    Ryan – thanks.

    You’re dead-on about the abuse of the word “crisis.” It is amazing to see how merely reciting this word disables so many people’s BS alarms.

  6. Jim January 7, 2007 at 11:58 am #

    Lois – excellent point on Clinton & 9/11. I dealt with this in a chapter titled “Blundering to 9/11” in Terrorism & Tyranny (St. Martin’s/Palgrave, 2003). I was surprised how any debate about the role of US govt policies in spurring hatred of the US was cast overboard even before the Twin Towers ceased smoldering.

    I hope you’re right about people having less respect for authority now than they did in the 1930s or even the 1960s. But I was dismayed that the immediate impact of 9/11 was a doubling in the percentage of Americans who trusted the government to do the right thing.

  7. Adam S. January 8, 2007 at 12:52 pm #

    I remember the comic Mallard Fillmore did a series on why the dinosaurs went extinct. One of them had the dinosaurs sitting around with an inch of snow on the ground and a bunch of shrews and birds emerging. The one dinosaur says, “I know what we should do. Let’s all wait for the government to do something”
    I think that governments need emergencies any more. The whole Liberal idea of government spending or forcing everybody to be happy has been discredited. The only thing that keeps Big Government from turning into a black hole is the fear of something, so-called emergencies. And when these fears start to abate, as they already have, (someone just recently published a book called “Overblown!” about the “overblown” war on terror)it will be a long time before government will have the power it used to. Alternatively, if “emergencies” are discredited, it could mean the end of politics as we know it. What good is a government if we have nothing to fear? The usage of fear in politics is not because people like being afraid, it is because it panders to people’s secret desire to be led. This is why socialism was so popular in the last century. Socialists had to fear the capitalist class and the mythical bourgeoisie. Now terrorists and drug cartels have filled the place left by Communists.
    Every time a President makes an “emergency announcement” he should be required to do it in front of a campfire in the Oval Office with a flashlight under his nose and his VP and chief of staff dressed up in bedsheets and dragging chains, respectively. Then we can get the whole feeling for an “emergency”.

  8. Sunni January 8, 2007 at 3:24 pm #

    Adam, not only would I watch a spectacle such as you describe, I’d probably be willing to pay (a little) to do so. The entertainment value would be well worth it, because I’d be LMAO.

  9. PintofStout January 8, 2007 at 4:54 pm #

    I’ll second Sunni’s sentiments. That would be priceless.

    Speaking of the overuse of words, I’d rank “hero” right at the top. And it isn’t a word, but imagery of eagles overlaid on large flags (such as Jeremy Shockey has tattooed on his arm) makes me want to gag.

  10. Jim January 8, 2007 at 5:11 pm #

    I agree that the proposed Oval Office signing ceremony would be a heckuva lot more edifying than the usual televised announcement from the East Room. The only thing that would make it better is the tar-and-feather option in case the president smirched the page.

    Actually, as far as tattoos, I think it would be an improvement if politicians were required to get tattoos to match their rhetoric.

    The “Freedom Fries” tattoo would be especially uplifting.

  11. Dirk W. Sabin January 11, 2007 at 2:40 pm #

    Possible alternates for Dictator”
    a. “Kinder, Gentler Dictator”
    b. “Rilly Rilly Nice Deecidertator”
    c. “Good Old Boy Monarch”
    d. “His Royal Bupkus”
    e. “The Grand and Glorious Null”
    f. “El Dunce”
    g. “Flounder”, (the dumb kid pledge who had his brother’s Lincoln trashed in “Animal House”)
    h.”Living proof of the sorrows of a lack of birth control in Poppy Bush’s House”
    i. “Chief Poquiddneck…roughly translated as: He Who say many words but come out backwards”
    j. “His Imperial Imperialite, Defender of the Indefensible”
    k. “Me No Makemistakemhatshupsut I”
    l. “Surge I”
    m. “il Surgenator”
    n. “Hizzoner, the Surgetatertinator”
    o. “Jackass is spelled j…a…c…k…a…s…s”
    p. “Neoconensis I, Lord of the Yoomans”
    q.”With Presidents like this, who needs Dictators”
    r. “Condi’s Special Project unfortunately beyond it’s Expiration Date”
    s. “Hall Monitor On a Bender”
    t. “King anti-Midas”
    u. “El Glorioso de la Texaconnectibunkport”
    v. “Massuh”
    w. “GI Joe Deprivation Syndrome ”
    x. “The Ever-blessed Thousand Points of Pointlessness”
    y. “Jebs worst Nightmare”
    z. “General Genrul, Trew Leeder”.

  12. REB January 12, 2007 at 9:27 pm #

    As long as there are folks who refuse to look to themselves for their lives and support,who refuse to take responsibility for their own lives and actions,who look to others,ie government to save them, protect them,feed them, wipe their rearends,make the world play fair,ad nausium,there will be those who are called government who believe they are destined to be the masters and the people,serfs working for them, there will always then be “boogie men”,something or someone to be afraid of,and for them to protect us from,time to realize who the enemy is and to start working together with likeminded folks to tick off and throw off tyranny in all its forms,without throwing the baby out with the bathwater,lets keep the liberty and toss the system!

  13. Gary March 25, 2010 at 10:06 am #

    Can states rights be claimed as long as the Emergency Declaratin of March 1993 or any other Emergency Declaration is in effect?