Trump’s illegal use of emergency powers to circumvent the Constitution and the law
Compare: The German "Enabling Act" of March 23, 1933 which gave Adolf Hitler dictatorial powers and ended German Democracy
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BACKGROUND
See,
1) Clemens Wergin, “‘Sehr alarmierende Anzeichen’ – wie sich Trump aus dem Handbuch autoritärer Regime bedient; Regieren per Notstandsverordnung, Einschüchterung von Medien und Justiz, Loyalität als oberstes Gebot – systematisch versucht US-Präsident Trump, die Gewaltenteilung der amerikanischen Demokratie zu untergraben. Doch sein Vorgehen hat eine Achillesferse.Die Welt, den 11. Abril 2025 (08:54 Uhr);
2) Clemens Wergin, “‘Very alarming signs’ – how Trump uses the handbook of authoritarian regimes; Governing by emergency decree, intimidation of the media and the judiciary, loyalty as the highest priority – US President Trump systematically tries to undermine the separation of powers of American democracy. But his approach has an Achilles heel,” Die Welt, April 11, 2025 (8:55 am CEST).
To access the English translation, click the capital letters on the right side of he address bar, and then select “Translate to English” from the drop-down menu.
3)James P. Rowles, “December 11, 2020 Donald Trump and the President’s Emergency Powers,” in James P. Rowles,The Rape of American Democracy: Republican Actions and Democratic Failures, 2016-2021 (2024),Chapter 75, pp. 284-287. See also Rowles, pp. 292-293, 308-309, 320-322.
UPDATE
4)Katherine Yon Ebricht and Elizabeth Goitein, “Trump Is Attempting to Use Wartime Powers in the United States; To serve his deportation agenda, the president is warping an archaic, discredited law.,”The Atlantic, April 24, 2025 (8:00 am ET).
Clemens Wergin, the Chief Foreign Policy Correspondent of Die Welt, one of Germany’s leading newspapers, has put his finger on the key legal defect in Donald Trump’s argument that he can by-pass existing laws in firing tens of thousands of federal employees while dismantling key government departments, agencies, and programs.
The flaw in Trump’s legal position is that he is asserting that he is exercising emergency powers granted to him by Congress based on his mere declaration of a national emergency, when no such emergency exists That is, there is no basis in the facts that would justify the declaration of an emergency..
Moreover, whatever the limits of the emergency powers purportedly granted to the president, these cannot override provisions in the Constitution, simply because Congress does not have the authority to grant such powers.
No previous president has sought to carry out what amounts to a coup d’état through abuse of these emergency powers. Many were originally adopted to deal with extraordinary contingencies such as the occurrence of a nuclear war.
Trump has been acting as if Germany’s Enabling Act of March 23, 1933 had been enacted in the United States.
It has not.
It is appropriate and necessary that Trump’s illegal and unconstitutional actions be challenged in the courts, and stopped and reversed by the courts.
Yet lawyers also need to challenge, if they are not already doing so, the legality and constitutionality of Trump’s declarations of national emergency and his invocations of emergency powers to justify his unconstitutional actions.
This argument should be central to their legal challenges of Trump’s actions.
While the courts have granted presidents great leeway on the question of whether a national emergency in fact exists when a president declares that one does, if the courts and the Supreme Court do so with this president and in the current circumstances, they will in effect be adopting an American version of Hitler’s Enabling Act.
Consider this: If any nation can ignore the GATT and WTO rules governing international trade by simply invoking the national security clause , as Trump has done, the entire body of international trade law becomes meaningless.
Under WTO rules, any such invocation of the national security provision would be subject to judicial review by WTO’s highest decision-making body. However, Trump— like Biden before him—has forestalled any such decision by refusing to appoint members to the body that are needed to constitute a quorum, which is needed in order for the body to hear a case and reach a decision.
Similarly, if Trump can bypass the entire body of laws passed by Congress and interpreted by the Supreme Court by simply invoking his emergency powers by speciously declaring national emergencies when none exist, much of the entire body of federal law becomes meaningless.
What we would be left with would be a lawless dictatorship where the president could do whatever he wanted whenever he wanted, through the arbitrary exercise of state power unconstrained by law.
That would be the equivalent of Hitler’s Enabling Act of March 23, 1933.
FURTHER READING
1) Colin Friedersdorf, ”A Perfect Case for Congressional Action; No one man should control the economy, The Atlantic, April 12, 2025 (8:00 am ET).
2)Paul Rosenzweig, ”TRUMP IS ALREADY UNDERMINING THE NEXT ELECTION; And the one after that, and the one after that.,” Atlantic, April 11, 2025 (6:00 am ET).
***
James Rowles is a former Lecturer on Law at Harvard Law School and professor of international law at other universities.
He studied the history of Nazi Germany at Stanford, and has studied and worked on human rights, judicial reform, and access to justice projects in many countries in Latin America, Africa, the Middle East, and in Afghanistan and Russia. At Harvard Law School, he taught a course on “Law, Human Rights, and the Struggle for Democracy in Latin America”.
At the Inter-American Commission on Human Rights (IACHR) of the OAS, he worked on human rights cases involving forced disappearances, executions, and torture in a number of authoritarian countries in Latin America and the Caribbean.
Recent Books by the Author
James P. Rowles, The Rape of American Democracy: Republican Actions and Democratic Failures, 2016-2021 (2024). Available on Amazon, and from IngramSpark by clicking on a link here.
James P. Rowles, Don’t Be Stupid. Pay Attention, Damn It! Advice for Undecided Voters and Voters Leaning Toward Trump (2024). Available on Amazon,and from IngramSpark by clicking on a link here.
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