Let’s try to keep this out of IMHO or GD territory. I want to know if this is legally possible under the US Constitution. Don’t tell me it could never happen politically or that it would never work, tell me if it could legally happen.
The President of the United States facing a growing worldwide pandemic declares a State of Emergency by Executive Order.
The president orders the shut down of all interstate and international transportation. He orders all state borders crossings closed and closes all major airports except for emergency flights in and out.
The president repurposes military bases (or builds separate quarantine camps) for anyone who has contracted or been exposed to the disease. He moves people into the camps using federal troops if necessary.
The president temporarily disbands Congress and the Supreme Court stating it’s too dangerous for them to gather.
The president cancels the upcoming presidential election claiming it’s too dangerous for candidates to campaign, for campaign rallies to take place, and for people to vote in person.
The president promises to lift all restrictions and remove the State of Emergency once a vaccine is widely available and/or the disease is no longer present in the US.
The president can only do things within his constitutional power by executive order.
He could close the airports since those are administered by the FAA and ban non-citizens from entering the country since that is part of the department of homeland security’s responsibility.
He could purpose military bases or build quarantine camps and use the national guard to help move people in.
He can not disband the Supreme Court, or the Congress. He can not cancel an election.
Yes, without a doubt. A President can declare a state of emergency for pretty much any situation out of the ordinary that requires urgent attention, but that BY ITSELF doesn’t really mean much. A list of emergencies.
But you should also be aware that declaring a state of emergency isn’t like a cheat code on a video game that allows its user to enter GOD MODE. A declaration is often necessary to exercise certain powers that have already been approved in law.
Yes, 42 USC 264 allows the Federal government to quaratine people to prevent the spread of diseases. Link. Under the Economy Act, any agency can contract with the Defense Department for use of unused space at military facilities, and in fact this is going on right now.
But you should also know that only Congress is empowered to suspend habeas corpus (with a particular major and unfortunate exception having occurred in our history, though under truly exceptional circumstances), so any person held by the government has a constitutional right to bring a case to a judge that they are being illegally detained by the Government. Habeas corpus is one of the most important rights in this country that most people don’t really know about, and as mentioned above, the President doesn’t get to just stop it through an emergency declaration.
No, this is unconstitutional and illegal. The President has no authority to shut down other branches of government.
Also illegal, as the President has no authority to stop the states from holding elections.
The President must renew a state of emergency at one-year intervals, and the Congress can also vote every six months on eliminating the state of emergency. The President can also end a state of emergency at his will.
And the President has no constitutional power to disobey any laws passed by Congress. So she or he can declare whatever they want, but the only power that declaration gives the President is whatever power Congress has granted through duly passed US laws. There is a law covering emergencies declared by the President, and it gives a fair amount of leeway to the President, but not infinite. One would need to look on a case-by-case basis as to what actions would be legal.
Are not federal and supreme court rulings enforced by the Executive? What forces the Executive to abide by and enforce any court order? Can the Andrew Jackson and SCOTUS (Worcester v. Georgia) situation return? “John Marshall has made his decision; now let him enforce it.” If a POTUS willfully defies court orders, who stops him or her?
Of course that raises the question about what happens if both houses of Congress have the majority of their members incapacitated or killed due to the pandemic. And/or The Supreme Court is similarly incapacitated.
In that case I think the President would be able to exercise powers that ordinarily be considered unconstitutional de facto. Though I don’t think the American people would tolerate it for longer.
Well, the POTUS doesn’t do much in person – it’s the it’s all the Federal employees at various levels who actually do the work. And they would have to decide if they were going to actually follow orders that are illegal under the Constitution.
Remember Nixon’s Saturday Night Massacre? He had to go thru 3 levels of the Attorney Generals Office before he found one who was willing to ‘just obey orders’. (And it got Nixon impeached later.)
That bolded piece is problematic for reasons beyond the habeus corpus issue that Ravenman pointed out.
Posse Comitatus still applies. The legal exceptions to it are in the Insurrection Act of 1807. That was amended in 2006 to create more exceptions for the use of federal troops. One of those exceptions was for epidemic. All of those new exceptions got removed from the law in 2007 because of concerns about Posse Comitatus being overly weakened. The exceptions as written into the law don’t really cover epidemic specific missions. It does leave options to use federal troops in the event of lawlessness if things really start to fall apart. For proactive disease specific tasks, federal troops still have to comply with Posse Comitatus. They could be used for tasks that fall under the broad doctrinal term Defense Support to Civil Authorities. Logistics support or medical care to those quarantined would be examples of DSCA missions that would broadly be okay.
State troops do not have to abide by Posse Comitatus. They merely have to comply with state law and the state and national consitution. That includes the National Guard along with state defense forces in the states which maintain them.* The National Guard has a unique dual status. They are subject to direct call up by the president. When that happens, though, they become federal troops. Their Posse Comitatus exemption disappears when they are under the direct orders of the president. They are just more federal troops.
The president can free up emergency funds to states. Governors can, depending on the limits of the types of funds, use that cash to call their National Guard or state defense forces to state active duty. The president can order DOD to make funds available for governors to call up their National Guard for specific tasks. The National Guard troops called up under those orders are still under the full control of their governor. The president is not using the National Guard. The president if offering to pay for it if the governor uses their National Guard to do specific things. The legal choice to accept or turn down the funds and mission is fully on the governor operating within state law.
The president cannot simply use the National Guard to do what you imagine without an act of Congress. The president can wave a big check and ask nicely. It takes governors to choose to say yes. President Bush did not order National Guard troops to airports in the wake of 9/11. He directed DOD to make funds available to states who chose to perform the mission. It is an important legal distinction.
Presidents have a lot of indirect power to respond to domestic emergencies because they control large resources. Their legal power to direct the response is more limited. That mostly belongs to the governors who are resource poor but legally powerful. Crisis response really emphasizes that we are a federal, not a unitary, republic.
States and territories also maintain law that allows governors to call up their unorganized militias to form organized units. Generally those laws are very broad giving the governor the authority but not specifying how those state drafts would be performed.
42 USC 264 may provide authority for the Executive branch to put limitations on border crossings in place, but it’s pretty restrictive. It specifies that it is to be done by rule – the reference to executive order is for the president to designate a disease by executive order, I believe. And, as explained below, it probably does not allow for all state border crossings to be closed. So, maybe interstates could be shut down, and maybe airports, but probably not wholesale border crossings.
Detaining people is only allowed under that act, though, if the person is believed to be infected or a probable source of infection. I don’t think you could just wholesale quarantine each state. You could possibly screen at borders, but I’m not sure that you could even do that – each state probably could, but I don’t see presidential authority there. Remember that public health is really a core state function – the federal government needs a jurisdictional hook. Obviously, this would involve interstate commerce, but the law looks limited.
States can request help, though, and invite the federal government to assist. Governors can call out the national guard. The president generally cannot order federal troops into a state for domestic purposes without the state’s permission. (There are limited exceptions).
(Re cancelling elections). I agree, but under 42 USC 264, perhaps rules could be made to require the infected or those in danger of infecting others to not go to places where people gather in large numbers, or to stay home, etc. So people could potentially be under orders not to vote in person. It would be interesting to see how that played out as I would expect it to be challenged in the courts if it effectively prevented people from being able to vote.