One of America’s least-revered Presidents happens to be one of the most gifted in his understanding of history and human nature. It was in 1776 that future President John Adams identified “fear” as “the foundation of most governments.” Adams might also have had in mind the words of a British contemporary, Edmund Burke, who in 1757 noted that “No passion so effectually robs the mind of all its powers of acting and reasoning as fear.”
Watching videos in recent days of adult women fighting over the last multi-pack of toilet paper to place in their already overflowing grocery carts illustrates that human behavior has not changed in the centuries since Burke’s observation. And considering the number of officials at the federal, state and municipal levels who are declaring states of “emergency” in the face of the Covid-19 virus, confirms that it remains as easy in 2020 to use fear as a tool with which to expand government power as it was in the 18th Century.
This not to say that the Covid-19 virus is neither a serious threat to the health and well-being of Americans from coast to coast nor a legitimate reason for governments to take action to limit and reverse its spread. The virus remains a serious public health threat and it would be highly irresponsible for federal, state and local governments not to enact health-related measures to control the virus.
Freeing up financial resources to improve delivery of medical services, loosening red tape on private business in the health care and pharmaceutical sectors, accelerating development of anti-virus inoculations, improving protective measures at senior citizen facilities and schools, and other related measures, make perfect sense — and do not adversely infringe fundamental civil liberties.
What is unsettling is the unquestioning manner by which people simply accept measures undertaken in the name of an “emergency” that directly and significantly undermine other, constitutionally guaranteed rights.
Under federal law, including the 1976 National Emergencies Act that President Trump invoked last Friday, a declaration by the president that a “national emergency” exists opens an array of unilateral powers to the federal government that bear no direct relationship to the health emergency that precipitated it. The problems are compounded when a national declaration is supplemented by state and local declarations.
Specific constitutionally guaranteed rights susceptible to limiting or suspension following national, state or municipal emergency declarations include, among many others, the right to peaceably assemble, the right to travel, the right to prevent trespass on one’s own property, and the right to keep and bear arms. Second Amendment advocates remember well the outrageous gun confiscation actions by the City of New Orleans in the wake of Hurricane Katrina in 2005, and a gun control declaration by the governor of the U.S. Virgin Islands three years ago (which was largely copied and adopted by the City of Champaign, Illinois just last week).
Each time such unconstitutional measures are undertaken pursuant to vaguely defined “emergencies,” precedent is set for subsequent government overreaching; sadly, the vast majority of citizens have no understanding of just how broad such powers extend. Under a presidentially declared “national emergency,” for example, the federal government can limit citizens’ business and financial transactions, freeze bank accounts and even shut down many types of electronic communications.
While Democrats criticize Trump for referring to the Covid-19 virus as “foreign,” there actually is a legal reason for doing so. Classified as a “foreign threat,” the Covid-19 virus emergency can trigger provisions of the 1977 International Emergency Economic Powers Act (“IEEPA”), which dramatically expands the federal government’s legal authority to control a range of financial and economic transactions.
There is much more to these scenarios than meets the eye. The long list of powers available to be exercised by the federal government upon signing a national emergency declaration go beyond those enumerated in public documents. There are, for example, numerous classified directives on the books, known as Presidential Emergency Action Documents or “PEADS,” that are never made public. According to a recent analysis in The Atlantic magazine, these cover everything from unilateral revocation of American citizens’ passports to suspension of habeas corpus. It would be naïve to think the administration has not already considered such contingencies.
That citizens, Members of Congress, governors, and mayors everywhere are jumping on the “emergency declaration” bandwagon with little if any accountability and virtually no public debate as to the scope and precedential effects of such extraordinary measures, facilitates further erosion of our constitutionally guaranteed rights that already have been greatly diminished.
Bob Barr represented Georgia’s 7th District in the U.S. House of Representatives from 1995 to 2003. He now serves as President of the Law Enforcement Education Foundation based in Atlanta, Georgia.