By emergency powers, I mean those powers assumed by executive politicians, such as the President and state governors in the United States, which exceed the written limits in the constitution, both on the federal level and the state level. The constitution, on both the federal and state levels, are written documents, stating the limits to what the executive politicians can do with their power. Furthermore, no powers, even emergency powers, can ever violate the fundamental individual rights of anybody. Anything not authorized IN WRITING within the constitutional documents are powers to which the executive politicians CANNOT assume and execute, even in an emergency, such as the COVID-19 pandemic, as of the time of this writing.
Although the COVID-19 pandemic is not a real emergency, especially considering the pandemic has failed to meaningfully reduce the population size as a true pandemic should do, emergencies do sometimes occur, warranting the occasional need for emergency powers. However, it is critical to limit emergency powers for executive politicians, so that emergency powers, no matter what the emergency, never violate fundamental individual rights. Furthermore, politicians, even elected officials, cannot be trusted to accurately identify and thereby declare legitimate emergencies, and then to also have the discipline to relinquish their emergency powers upon the end of the emergency.
The COVID-19 pandemic is a perfect example of an illegitimately declared emergency; although the virus is real and some people are getting infected, even sometimes mortally infected, it is not a pandemic that has proven to be any deadlier than the seasonal flu. Furthermore, in March 2020, nearly all U.S. state governors initially stated that their emergency powers would last for only two weeks; two weeks to flatten the curve of COVID cases was the slogan; in this case, the COVID case counting has been fraudulent, adding to the fraudulent nature of the emergency declaration. Other than Georgia governor Brian Kemp, all state governors lied about ending their emergency powers after the initially stated two weeks, and many have yet to even relax them as of the time of this writing. Once executive politicians get a taste of power beyond the written limits of their constitutions to which they’re sworn to abide by, nearly none of them give up that power. As in the example of the COVID-19 pandemic, most U.S. state governors continued to declare the emergency, even though such a declaration was totally invalid, and failed to give up their emergency powers. Therefore, because politicians cannot be relied upon to always accurately define and declare emergencies or to give up their emergency powers when warranted, emergency powers need stricter limits, if liberty is to have a chance of prevailing long-term.
Furthermore, as Joel Skousen explains in the September 11, 2020 version of the World Affairs Brief, a recommended source on this blog:
Here are the legal principles that make these COVID-19 emergency powers unconstitutional.
1. One of the constitution’s purposes is to restrict lawmaking power. So, in principle, no exercise of unlimited power can be constitutional—lawmaking and executive authority must always have limits to their discretionary abilities. None of these emergency orders place any effective limits on a governor’s power. Judge Andrew Napolitano said: “The purpose of the Constitution is to establish the government and to limit it. Some of the limitations are written in the Constitution itself. Most of the limitations that pertain to personal freedoms are found in the Bill of Rights — the first 10 amendments. These amendments were ratified to restrain the federal government from infringing upon personal liberties.
2. There is no authority granted in the federal constitution nor any state constitution to allow the violation or suspension of any enumerated rights in an emergency. The power to legislate in various areas of law must must find some justification within the plain language of its constitution in order to be valid, and can never violate enumerated rights. Judge Napolitano added: “…the Constitution — when interpreted in accordance with the plain meaning of its words, and informed by history — does not permit the government to infringe upon personal freedoms, no matter the emergency or pandemic.”
3. Governors have no inherent power in an emergency to craft regulations with restrictions or penalties that carry the force of law –that’s a legislative function. The Guarantee Clause of the Constitution mandates a republican form of government in the states. That means the separation of powers into three branches, each with a distinct function that cannot constitutionally be performed by either of the other two. Since only a representative legislature can write laws that carry criminal penalties and incur the use of force, the governor of a state cannot constitutionally assume this power, let alone state health officials.
4. State legislatures cannot delegate to governors their law-making powers. The separation of powers in both the federal constitution and every state constitution was crafted not to preserve the integrity of each branch but to assure the preservation of personal liberty by preventing the accumulation of too much power in any one branch…We are talking about delegating away a core power — the authority to create crimes and craft punishments. Such a delegation would be an egregious violation of the Guarantee Clause.
5. A state legislature cannot enact laws that interfere with personal liberties protected by the Bill of Rights, prescribe punishments for violations of those laws and authorize governors to use force to compel compliance. This is because all government in America is subordinate to the natural rights articulated in the Bill of Rights and embraced in the Ninth Amendment.
Even more troubling is the background on the nebulous area of emergency powers, provided by Wikipedia, which were relatively unrestricted until 1976. That’s the year the National Emergencies Act (NEA) was passed to “terminate certain authorities with respect to national emergencies still in effect, and to provide for orderly implementation and termination of future national emergencies.” But, in fact, it doesn’t effectively restrict much at all as long as the party in power goes along.
The first President to issue an emergency proclamation was Woodrow Wilson… “arising from the insufficiency of maritime tonnage”… Starting with Franklin D. Roosevelt in 1933, presidents asserted the power to declare emergencies without limiting their scope or duration, without citing the relevant statutes, and without congressional oversight.
A 1973 Senate investigation found (in Senate Report 93-549) that four declared emergencies remained in effect:
1) the 1933 banking crisis with respect to the hoarding of gold, 2) a 1950 emergency with respect to the Korean War, 3) a 1970 emergency regarding a postal workers strike, and 4) a 1971 emergency in response to inflation…
Presidents have continued to use their emergency authority subject to the provisions of the act, with 42 national emergencies declared between 1976 and 2007. Most of these were for the purpose of restricting trade with certain foreign entities under the International Emergency Economic Powers Act (IEEPA).
Here is a list of the recent states of emergency:
1979: President Carter issued Executive Order 12170 freezing Iranian assets (still in effect).
1985: Due to the communist takeover of Nicaragua (facilitated by the Carter administration), President Reagan prohibited all trade between the U.S. and Nicaragua (lifted in March 1990).
1998: President Clinton declared a National emergency during the NATO bombing of Yugoslavia (because there was no Congressional authorization to do so).
2001: George W Bush declared a National emergency as a result of the Deep State engineered 9/11 attacks on the WTC and Pentagon.
This last state of emergency is still ongoing 18 years later, and used behind the scenes by the Deep State to justify their arming and funding of terrorists around the world to any military or government personnel who find out about illegal acts and demand to know “by what authority” these things are being done.
This current state of emergency has been used to build all of the military bases in Afghanistan and Iraq as well as justifying paying off insurgents with millions of dollars in bribes (pallets full of $100 bills shipped to these countries). It is being used to justify the secret bases the US built in Syria and all the CIA black sites for torture around the world. There is, undoubtedly, much more use of emergency powers that we will never know about, covered up under the mantel of “national security” and “state secrets.” Wikipedia’s background article continues:
Termination of presidential authority: A prior Senate investigation had found 470 provisions of federal law that a President might invoke via a declaration of emergency. The Act repealed several of these provisions and stated that prior emergency declarations would no longer give force to those provisions that remained. Congress did not attempt to revoke any outstanding emergency declarations per se, [Deep State still needs these powers] as these remained the President’s prerogative [assumed] under Article II of the Constitution.
Procedure for new emergencies: The Act authorized the President to activate emergency provisions of law via an emergency declaration on the conditions that the President specifies the provisions so activated and notifies Congress. An activation would expire if the President expressly terminated the emergency, or did not renew the emergency annually, or if each house of Congress passed a resolution terminating the emergency. After presidents objected to this “Congressional termination” provision on separation of powers grounds, it was replaced in 1985 with termination by an enacted joint resolution.
As you can see, these emergency powers won’t really restrict the president unless a majority of both houses of Congress enact a joint resolution and the president signs it—which means that Congress alone can’t stop a state of emergency.
Emergency powers: Although the United States Constitution contains no mention of any emergency powers granted to the President, some folks claim that Congress has delegated at least 136 distinct statutory emergency powers to the President upon the declaration of an emergency, with only 13 of these requiring a declaration from Congress.
These unrestricted emergency powers are wrong, especially if there are still 123 distinct statutory emergency powers that the President can unilaterally assume without approval from the Congress, the only authorized body by the U.S. Constitution to pass legislation. However, I forecast that none of those 123 statutory powers will change from being unilaterally at the discretion of the President, one of many aspects that makes even the U.S. President no less corrupt, powerful, or unjust than a dictator, even the most heinous ones in history like Adolf Hitler and Josef Stalin. Furthermore, the justice system, even on the federal level in the United States, has failed to go after, thwart, and punish executive politicians for abusing their emergency powers, and I forecast that the justice system will not be reformed, especially before World War 3, the beginning of the ultimate demise of civilization. This will be among the leading and causal factors leading to the eventual demise of modern civilization and liberty.
However, sometimes real emergencies do occur, and executive officials need to exercise APPROPRIATE emergency powers. As explained earlier, emergency powers must NEVER violate any fundamental individual rights or written amendments or clauses to the U.S. Constitution; the same applies for state governors who have no authority to use emergency powers to violate either fundamental individual rights or their respective state constitution(s). This is why a declaration of illegal immigration at the national border, namely the Mexican border, is a legitimate emergency, and measures such as building a wall to secure the border are legitimate and constitutional emergency powers, because they don’t violate individual rights and solve a legitimate emergency and deal with a massive crime, rampant ILLEGAL immigration at the border. Conversely, this is why gun confiscation, or gold confiscation such as those tyrannically executed by former President Franklin D. Roosevelt, are illegitimate emergencies, as the measures taken to solve those emergencies, which, like COVID-19, are not legitimate emergencies, violate fundamental individual rights and liberties, the latter of which politicians are NEVER allowed to do, even under emergency circumstances. In the case of gun confiscation, the Second Amendment to the U.S. Constitution and inalienable rights to peaceful firearm ownership are violated. In the case of gold confiscation, inalienable rights to private property are violated without consent or even just compensation.