Trump is Opening The Enemies Briefcase

Congress Paved the Way

We can’t say we weren’t warned. The emergency powers Trump has invoked to impose the largest tariffs in a hundred years, fast track energy and mineral production, and militarize federal lands on portions of the southern border were at least on the public record, authorized by Congress in The National Emergencies Act of 1976. The act permitted a president to unleash 150 statutory powers by declaring a national emergency. Legislators thought they had curbed the possibility of untrameled presidential power by adding the proviso of a "legislative veto" giving Congress the ability to terminate an emergency with a simple majority vote. But in 1983 the supreme court nixed that with a ruling, INS v. Chadha, that declared legislative vetoes unconstitutional. Trump’s first term deployment of the International Emergency Economic Powers Act, passed by Congress in 1975, to build his border wall excited comment and alarm, but no effective action to stop him.

But in March, 2020, Trump cryptically remarked “I have the right to do a lot of things that people don’t even know about.” He was referring to “presidential emergency action documents,” or PEADs, orders that authorize a broad range of mortal assaults on our civil liberties. Kept in a locked safe at the department of justice, these documents, in the words of a rare official description, outline how to “implement extraordinary presidential authority in response to extraordinary situations”

These instruments of dictatorship have not only never been authorized by Congress, they have remained almost totally secret. Elizabeth Goitein, senior director for liberty and security at the Brennan Center, is one of the few to investigate this momentous issue. As she told me when I first covered this topic in Harper’s Magazine, “This really is one of the best-kept secrets in Washington, but though the PEADs are secret from the American public, they’re not secret from the White House and from the executive branch. And the fact that none of them has ever been leaked is really quite extraordinary.”

Thanks to Goitein’s sleuthing, we know that in the past, PEADs have enabled the following:

• authorized detention of “alien enemies” and other “dangerous persons” within the United States;

• suspended the writ of habeas corpus by presidential order;

• provided for various forms of martial law;

• issued a general warrant permitting search and seizure of persons and property;

• established military areas such as those created during World War II;

• suspended production of the Federal Register;

• declared a State of War; and

• authorized censorship of news reports.

These chilling directives have been silently proliferating since the dawn of the Cold War as an integral part of the hugely elaborate Continuity of Government (COG) program, a mechanism to preserve state authority in the event of a nuclear holocaust, but available for use for any occupant of the Oval Office sufficiently devoid of scruple.

As Goitein told me, “we do not know what they contain today.” As of 2017 there were 56 of these PEADs ready for use, up from 48 a few decades ago. It is less than likely that any of these draconian powers have been curbed, and next to certain that they have been expanded. Meanwhile, as former White House official Joel McCleary, an executive director of Keep Our Republic, told me, “over at the Office of Legal Counsel at the Justice Department there’s a list of all the so-called enemies of the state who would be rounded up in an emergency. I’ve heard it called the ‘enemies briefcase.’ ”

In June, 2023, Democratic Congressman Steve Cohen, (TN9) and Republican Chip Roy (TX21), introduced the Article I Act mandating an automatic lapse of any presidential emergency declaration after thirty days unless authorized by Congress. It also contained a provision that PEADs be disclosed to congressional oversight committees. The bill attracted a host of bipartisan supporters in the House and Senate so it seemed just possible that we might at last learn something about these enabling tools for dictatorship. But there was no enthusiasm from the congressional democratic leadership, nor from the Biden White House. In any event, the prospects for reform vanished with Trump’s election victory. Erstwhile Republican firebrands for liberty, such as Senator Mike Lee of Utah, suddenly lost interest and the bill died.

Commentators may decry Trump’s kidnapping and deportation of legal residents while ignoring court orders, or his refusal to spend money appropriated by Congress, or unleashing the IRS on groups he doesn’t like, or threatening to deport citizens to the El Salvadoran gulag, among other enormities by now almost too numerous to itemize.

But maybe there are PEADs in that safe covering all these actions, along with the names in that briefcase.

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