The upheaval of the past year was like a giant stress test of our constitutional system — and it revealed serious risks from an unbridled commander-in-chief who may be tempted to assert emergency presidential powers in a domestic crisis.
Throughout 2020, former President Donald Trump and some of his cabinet members considered the idea of declaring martial law, using extraordinary police powers and suspending civil liberties under cover of emergency powers. According to reporting by Bob Woodward and Robert Costa, as a raging Trump refused to accept his election defeat, then-CIA Director Gina Haspel remarked to Joint Chiefs Chair Gen. Mark Milley that “we are on the way to a right-wing coup.” Haspel was not speaking about a takeover in some faraway failing state, but about the U.S.
The country survived that perilous stretch, but we may not be so lucky next time without new guardrails on the presidency. Fortunately, senior lawmakers are now sponsoring legislation to reaffirm the checks and balances that are vital to our constitutional order. It’s a remarkable effort that Congress should quickly rally around — as should President Joe Biden, even though it would diminish his own authority.
The Founders knew from colonial experience that power corrupts. It’s precisely why they established a system of checks and balances. Presidential arrogation of power is a threat not to one party or the other, but rather a threat to the separation of powers and thus to the whole constitutional order.
Proactive congressional review of the White House is nothing new, but it is urgent. The U.S. has undergone periods of soul-searching and reaffirmation of the balance of powers. Excesses must be challenged and fundamental constitutional understandings must be renewed. Our country did this in the Nixon era, after Watergate, and today presents another occasion.
At such historic junctures, Congress has exercised its oversight responsibility through hearings to expose abuses of power and to put forward legislation to restore the constitutional balance.
In the early 1970s, Sen. Frank Church (D-Idaho) co-chaired a special committee on national emergencies, which sought to take stock of and rein in the president’s powers to declare emergencies. Our co-author Sen. Gary Hart served on a related select committee co-chaired by Church on the government’s intelligence operations, which included the domestic political espionage taking place under Nixon.
Based on the committee’s findings, Church warned that existing emergency powers “were like a loaded gun lying around the house, ready to be fired by any trigger-happy president who might come along.”
During the post-Watergate period, Congress and Presidents Gerald Ford and Jimmy Carter worked together to reaffirm government accountability. For example, Congress passed the National Emergencies Act of 1976 to ensure congressional control over delegated presidential emergency powers. The Inspector General Act of 1978 created a new kind of oversight of the executive branch with the establishment of a series of new agency watchdogs.
We witnessed alarming signs last year that these protections have eroded. Church’s warning about the “loaded gun” remains valid and explains the ongoing bipartisan push by Congress.
House leaders, including Speaker Nancy Pelosi and Intelligence Chair Adam Schiff, are about to put forward the Protecting Our Democracy Act, a post-Watergate-style package of reforms that would restore restraints on executive authority, such as preventing abuse of the pardon power or politicization of the Department of Justice, protecting Congress’ power of the purse and federal employee whistleblowers, and more.
Sens. Chris Murphy (D-Conn.), Mike Lee (R-Utah) and Bernie Sanders (I-Vt.) have also come together with the National Security Powers Act, which would require congressional approval for the president to declare national emergencies, conduct arms sales and use military force. The bill would be the most important recalibration of the balance of power between the president and Congress in decades. Notably, it adopts many ideas that then-Sen. Joe Biden advocated in the 1980s.
These bills are the right approaches at the right time. They should command bipartisan support. Their goal is one Americans from across the political spectrum can rally behind: The survival of our democratic form of government.
But legislative prospects depend crucially on support of the White House — which has been notably quiet on these initiatives. Biden entered the Senate in 1973 at a time of peril in our democracy. He entered the White House during another such crisis. Like few other presidents, Biden should hear the clarion call of history to use his bully pulpit to preserve our republic.