Given that they could make their first appearance in the coronavirus crisis, Congress should insist on having full access to them.

By Elizabeth Goitein and 

The past few weeks have given Americans a crash course in the powers that federal, state and local governments wield during emergencies. We’ve seen businesses closed down, citizens quarantined and travel restricted. When President Trump declared emergencies on March 13 under both the Stafford Act and the National Emergencies Act, he boasted, “I have the right to do a lot of things that people don’t even know about.”

The president is right. Some of the most potent emergency powers at his disposal are likely ones we can’t know about, because they are not contained in any publicly available laws. Instead, they are set forth in classified documents known as “presidential emergency action documents.”

These documents consist of draft proclamations, executive orders and proposals for legislation that can be quickly deployed to assert broad presidential authority in a range of worst-case scenarios. They are one of the government’s best-kept secrets. No presidential emergency action document has ever been released or even leaked. And it appears that none has ever been invoked.

Given the real possibility that these documents could make their first appearance in the coronavirus crisis, Congress should insist on having full access to them to ensure that they are consistent with the Constitution and basic principles of democracy.

Presidential emergency action documents emerged during the Eisenhower administration as a set of plans to provide for continuity of government after a Soviet nuclear attack. Over time, they were expanded to include proposed responses to other types of emergencies. As described in one declassified government memorandum, they are designed “to implement extraordinary presidential authority in response to extraordinary situations.”

Other government documents have revealed some of the actions that older presidential emergency action documents — those issued up through the 1970s — purported to authorize. These include suspension of habeas corpus by the president (not by Congress, as assigned in the Constitution), detention of United States citizens who are suspected of being “subversives,” warrantless searches and seizures and the imposition of martial law.

Some of these actions would seem unconstitutional, at least in the absence of authorization by Congress. Past presidential emergency action documents, however, have tested the line of how far presidents’ constitutional authority may stretch in an emergency.

For example, a Department of Justice memorandum from the Lyndon B. Johnson administration discusses a presidential emergency action document that would impose censorship on news sent abroad. The memo notes that while no “express statutory authority” exists for such a measure, “it can be argued that these actions would be legal in the aftermath of a devastating nuclear attack based on the president’s constitutional powers to preserve the national security.” It then recommends that the president seek ratifying legislation from Congress after issuing the orders.

Much less is known about the contents of more recent presidential emergency action documents — but we do know they exist. They undergo periodic revision to take into account new laws, conditions and concerns. The Department of Justice reviews the proposed changes for legal soundness, the Federal Emergency Management Agency plays a coordinating role and the National Security Council provides policy direction and final approval.

There is no question that presidential emergency action documents could be used in a pandemic like that caused by the coronavirus. A 2006 Nuclear Regulatory Commission memorandum addressed that agency’s plan under President Bush’s 2005 “National Strategy for Pandemic Influenza.” The concern was how to maintain operations in response to a pandemic that proved to be “persistent, widespread, and prolonged.” The memo’s authors offered the Nuclear Regulatory Commission 14 bullet points of actions, including to “review presidential emergency action documents” and “select those most likely to be needed” by the commission.

The most notable aspect of presidential emergency action documents might be their extreme secrecy. It’s not uncommon for the government to classify its plans or activities in the area of national security. However, even the most sensitive military operations or intelligence activities must be reported to at least some members of Congress. By contrast, we know of no evidence that the executive branch has ever consulted with Congress — or even informed any of its members — regarding the contents of presidential emergency action documents.

That is a dangerous state of affairs. The coronavirus pandemic is fast becoming the most serious crisis to face this country since World War II. And it is happening under the watch of a president who has claimed that Article II of the Constitution gives him “the right to do whatever I want.” It is not far-fetched to think that we might see the deployment of these documents for the first time and that they will assert presidential powers beyond those granted by Congress or recognized by the courts as flowing from the Constitution.

Even in the most dire of emergencies, the president of the United States should not be able to operate free from constitutional checks and balances. The coronavirus crisis should serve as a wake-up call. Presidential emergency action documents have managed to escape democratic oversight for nearly 70 years. Congress should move quickly to remedy that omission and assert its authority to review these documents, before we all learn just how far this administration believes the president’s powers reach.

Elizabeth Goitein is a co-director and Andrew Boyle is a lawyer at the Liberty and National Security Program at the Brennan Center for Justice at New York University School of Law.