Donald Trump could open a Pandora’s box if he invokes special crisis powers. The U.S. president is considering bypassing Congress to build a border wall by declaring a national emergency. In theory, similar authority could enable him to shut down CNN, say, or block access to Facebook.
Trump used the language of war to make his case for a border wall on Tuesday night. He asked “how much more American blood must we shed before Congress does its job?” About 266,000 illegal immigrants were arrested in America in 2017 and 2018, but most were for traffic violations, drug offenses or breaking immigration laws.
An American president has wide latitude in deciding what is an emergency, which then gives him a vast array of powers. The Brennan Center for Justice identified 136 areas where a U.S. leader could act outside the normal scope of authority in such a situation. Trump could divert government funds for a wall, rather than being stuck because Congress is refusing to provide the $5.7 billion he wants.
A crisis could be used to serve other parts of his agenda. Trump regularly accuses media outlets including CNN and some online platforms of bias against him and Republicans in general. A threat of war, state of peril or other emergency would allow the president to suspend or amend regulations for wire communications entities, or shut down or take control of such facilities.
A cyber war with China, foreign interference in U.S. elections, or even the airing of an interview with someone like WikiLeaks’ Julian Assange could provide a pretext to target CNN or MSNBC, according to Timothy Edgar, an attorney and former national security official. Similar reasoning could be used to block online access to Facebook if the social network’s activities were deemed to fall under wire communications.
Such moves would face legal challenges on grounds including the First Amendment’s free-speech protections. Congress could also pass a resolution terminating any declared emergency, but would need the support of two-thirds of both chambers to overcome Trump’s veto. A more comprehensive approach would be for legislators to narrow the definition of an emergency so a president could only declare one in a true crisis. A commander-in-chief needs some leeway in extreme situations, but it’s the job of lawmakers to set limits.