Seize the Day

I completely agree with Sen. Gary Hart’s proposal in an op-ed in the New York Times:

We have recently come to learn of at least a hundred documents authorizing extraordinary presidential powers in the case of a national emergency, virtually dictatorial powers without congressional or judicial checks and balances. President Trump alluded to these authorities in March when he said, “I have the right to do a lot of things that people don’t even know about.” No matter who occupies the office, the American people have a right to know what extraordinary powers presidents believe they have. It is time for a new select committee to study these powers and their potential for abuse, and advise Congress on the ways in which it might, at a minimum, establish stringent oversight.

Secret powers began accumulating during the Eisenhower years and have grown by accretion ever since. The rationale originally was to permit a president to exercise necessary control in the case of nuclear war, an increasingly remote possibility since the Cold War’s end. An obscure provision in the Communications Act of 1934 empowers the president to suspend broadcast stations and other means of communication following a “proclamation by the President” of “national emergency.” Powers like these have been deployed sparingly: A few days after the Sept. 11 attacks, a proclamation declaring a national emergency, followed by an executive order days later, invoked some presidential powers, including the use of National Guard and U.S. military forces.

Senior members of both parties should convene hearings by first requesting, or if necessary, subpoenaing, the documents themselves. Those from previous administrations familiar with these documents should be called to testify, as well as current officials, including the national security adviser, the attorney general and the White House counsel.

The most obvious first question is why these far-reaching powers are kept secret, not only from Congress but also from the American people. The second question is why they are necessary at all. And ultimately, should not there be permanent congressional oversight of any suggestion for calling these powers into operation? Under what dire conditions should our system of checks and balances among the executive, legislative and judicial branches be abandoned in favor of a dictatorship? And once a dictatorship is declared, what would be required to return us to our historic democratic system of government?

We are being presented with a rare opportunity to correct the delegation of powers. Should Joe Biden be elected president there is no prospect whatever that the review being proposed would go forward. Similarly, if President Trump is re-elected and the Republicans regain control of the House, the same would apply.

A government of laws and of enumerated powers requires that we know what the heck the law actually is.