The civics-class view of American government depicts the constitution as a far-sighted and masterful protection against tyranny. Yet replicas of America’s constitution have been adopted in other countries and failed to keep tyrants at bay. In the 19th century Latin America’s new republics copied the template—federalism, a supreme court, a legislature and a president—and their democracies were overturned by men with guns. In the 20th the Philippines cut and pasted America’s constitution, yet Ferdinand Marcos managed to undermine democracy and install himself as a strongman ruler for more than 20 years.
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Mr Trump’s legal team has backed away from its initial claim that a president should have immunity even if he were to have a political rival assassinated. Its new position is that presidents are immune from prosecution when performing their official duties—a view some members of the Supreme Court seem minded to accept. But it is the things done in an official capacity that are the most worrying for the country, not small acts of personal corruption or feuds with rivals. If presidents are immune from prosecution for what they do as president, and if they have political immunity because impeachment is not a real check, then they are above the law.
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The Brennan Center, a think-tank at New York University, has identified 135 statutory powers that accrue to the president when he declares a national emergency. These include things like the power to freeze Americans’ bank accounts or, under a law giving the president emergency powers over communications that was passed in 1942, to shut down the internet (which thankfully would be pretty hard in practice). In theory Congress is meant to review and potentially revoke the president’s declarations after six or 12 months. In practice it is casual about curtailing them. Over 40 emergencies are currently in force. Some of them are more than a decade old.
In wartime, emergency powers have been used to close down newspapers (under Woodrow Wilson), to suspend the right to a trial before being locked up (Franklin Roosevelt) and to justify surveillance of Americans and torture of foreigners (George W. Bush). But plenty of these powers can be used even when the threat to the nation is remote. An emergency is an emergency when the president says it is and his lawyers agree. Most emergencies are declared to deploy federal resources when there is a natural disaster, which is how the power should work. But as it has become harder to pass legislation, presidents have found this escape route too tempting to leave unexploited. Mr Trump’s border wall was built under emergency authority. President Joe Biden’s forgiveness of student debt, which has cost 0.6% of GDP so far, was also done under emergency presidential authority.
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Nowadays the deployment of troops and suspension of liberties on American soil by the federal government is hard to imagine. Yet if a tyrannical president wished to do so, he would have the power to send in the troops under the Insurrection Act. This law, dating from 1807, gives the president the authority to deploy the army or the navy in the case of a domestic uprising or where federal law is being ignored. The act states that this can be done when lawful, without defining when that means. “It’s a loaded gun for any president. There are practically no constraints,” says Jack Goldsmith, a former attorney-general and current scholar of presidential power who is part of an effort to reform the act.
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