FOIA Requests Reveal Secret Unchecked Presidential Emergency Powers

The Brennan Center for Justice has unearthed a disturbing set of powers granted to the executive branch. A Freedom of Information Act (FOIA) request has revealed that during the administration of former President George W. Bush, the president’s emergency powers were expanded significantly. Such powers, if invoked, would not be subject to any checks from the courts or Congress.

These powers are claimed under the Presidential Emergency Action Documents (PEAD), which have not been challenged in court and derive their authority inherent in the executive branch. Ostensibly they are only to be used in times of emergency. Originally, they were designed for use in case of a nuclear strike and were drafted by the Eisenhower administration.

After 9/11, the Bush administration redrafted them to reflect a changing world by adding powers that centered around the ability to detain people without due process, controlling communications and the right to travel.

There are 136 powers that accrue to the president upon the declaration of a national emergency by the executive branch. If that was not enough, if Congress declares a national emergency, another 13 powers are granted to the president — a total of 149. This broad base of powers is far beyond the intent of the original framers, who never viewed the president as the most powerful part of the government.

The emergency power has been used with increasing frequency by presidents in the modern era. Since 1979 there have been 58 declared national emergencies by the executive branch, with 31 of them still active today. The powers from the Iran hostage crisis in 1979, which have resulted in the freezing of the country’s assets, are still in effect today, long after the hostages have been freed. This is just one example of why there needs to be a review of these powers.

Congress needs to engage in a bi-partisan review of executive authority. The powers yielded to the president have been questioned by both sides of the aisle, and it’s time for our legislative body to restore the appropriate authority to the presidency. The Constitution outlines the powers the president should hold, and changes to this role should be made there, and not by Congress simply ceding its responsibilities to an executive it was made to check.