President Trump’s initiatives have frequently invoked national security — but in the absence of any actual threat to the nation. That may make a difference in the courts.
As profoundly disturbing as Mr. Trump’s sweeping and irresponsible violations of civil liberties have been, in one respect they are not exactly unprecedented. Previous presidents have deported people for their speech, targeted internal critics for blacklists, locked up foreign nationals without charge, invoked military authority at home and sought to muzzle the media. But there is one fundamental difference.
Virtually every time previous presidents took such extreme steps, they acted in response to at least a plausible threat to national security. This time, Mr. Trump has invoked emergency powers in the absence of any even plausible emergency. That fact simultaneously underscores how unhinged from reality the president’s actions are and provides reason for hope that they can be stopped.
Consider earlier periods of repression. The Alien and Sedition Acts of 1798 were enacted in the face of a potential war with France and fear of French sympathizers at home. Lincoln suspended habeas corpus during the Civil War, a threat to the very existence of the nation. In World War I, the government prosecuted those who spoke out against the war. The Palmer Raids of 1919-20, in which authorities rounded up and sought to deport thousands of foreign citizens for their political affiliations, were prompted by a coordinated series of anarchist bombings. World War II brought the internment of both Japanese nationals and U.S. citizens of Japanese descent, as well as the summary execution of German saboteurs caught on domestic soil.
In the McCarthy era there was perhaps the most widespread repression, but it was driven by concern that the Soviet Union sought to overthrow the United States by force — a fear that while greatly exaggerated was not entirely unfounded. And the George W. Bush administration’s deployment of torture, disappearances, so-called black sites and warrantless collection of phone data on Americans was, of course, a response to the terrorist attacks on 9/11.
In none of these cases did the threats justify the means adopted. They are all correctly seen, in retrospect, as severe overreactions and lamentable failures to live up to our ideals. The existence of such threats at least helps explain what happened, even if it does not make it right.
What is different this time is that there simply is no national security threat. To be sure, Mr. Trump has invoked the language of “invasion,” “enemies” and “emergency” — but we have not been invaded. That students are criticizing, however harshly, the Israel Defense Forces or that law firms work on cases in opposition to the president’s interests does not make them enemies. In other words, the only emergencies are of Mr. Trump’s creation, as he erratically stops payment on obligated contracts, announces and lifts tariffs within days, and fires and rehires federal employees. He has deployed troops to the Southern border, but needlessly, as border crossings are lower than they have been in years, having already fallen substantially over the last year of the Biden administration.
Last week, Mr. Trump invoked the Alien Enemies Act of 1798 to justify deporting Venezuelans he alleges are members of a gang. But by its terms that law applies only in wars declared by Congress or an actual invasion by a foreign state; it authorizes detention and deportation of nationals of a country with which we are at war. It was last used during World War II, because that was the last declared war we fought.
It was not used during the conflicts in Korea, Vietnam, Iraq or Afghanistan — because none of those were declared wars. We have not declared war on Venezuela, nor has that nation invaded us, so Mr. Trump’s invocation is plainly unconstitutional, as a federal judge ruled almost as soon as the order was issued. Now the Trump administration’s lawyers are invoking national security, again without a shred of justification, to avoid giving the judge information that may show they defied his order.
Mr. Trump has suspended security clearances of lawyers, but not because they have even arguably compromised national security. Instead, he’s done so as a form of retribution — targeting the law firms Covington & Burling; Perkins Coie; and Paul, Weiss, Rifkind, Wharton & Garrison for their involvement in entirely legitimate and constitutionally protected litigation against Mr. Trump or his allies. In doing so, Mr. Trump has already scored one success. This is not a security initiative, but partisan payback, abusing security clearance authority as a hammer.
Or consider the attempted deportation of Mahmoud Khalil, a legal permanent resident and former graduate student at Columbia, who helped organize pro-Palestinian campus protests. The administration has invoked a little-used provision of immigration law that authorizes the secretary of state to remove an immigrant upon certifying that his presence or activities here pose “serious adverse foreign policy consequences.” Marco Rubio, the secretary of state, has alleged as much, but the allegation is implausible on its face. Campus protests at Columbia posed no threat to our foreign policy. If protests that criticize Israel undermine our foreign policy, thousands across the nation’s colleges would be deportable. Again, this is faux national security.
Mr. Trump’s executive order barring transgender individuals from the military relies on yet another self-evidently pretextual invocation of security. The president’s order claims that the mere fact of being transgender “conflicts” with “a soldier’s commitment to an honorable, truthful, and disciplined lifestyle,” because trans identities are “not consistent with humility and selflessness.” As a federal judge recognized this week in temporarily blocking the order as unconstitutional, this is simply outright bigotry dressed up in national security clothing.
And now Mr. Trump is reportedly considering a new travel ban, covering more than 40 countries — notwithstanding that we appear to have faced no security threat since the last one.
It is one thing to sacrifice liberty in the face of a real threat. To manufacture threats in order to sacrifice liberty is another matter altogether.
But the absence of an emergency also provides ground for hope. Historically, courts have not been very good at standing up for civil liberties when the government invokes national defense in a crisis. Judges often find it difficult to second-guess what is necessary for our security during a crisis. The Supreme Court upheld long prison sentences for war critics in World War I, the internment of Japanese Americans and summary execution of German saboteurs in World War II and the widespread targeting of “Communist sympathizers” during the McCarthy era. The court eventually protected the First Amendment rights of Communists only after the Senate had censured Senator Joe McCarthy and the crisis was waning. And while the Supreme Court imposed some constraints on Guantánamo, it did nothing to stop the torture or disappearances of suspected terrorists during the Bush administration.
Where a president asserts emergency power in the wholesale absence of a crisis, however, as Mr. Trump has, it should be easier for courts to defend the rule of law and respect for basic human rights. The fact that so many courts have already issued orders countermanding his measures, including where he has invoked national security or military authority, suggests that, even if courts often feel uncomfortable assessing the gravity of a genuine national security threat, they know enough to know when there is no there there.
Mr. Trump’s actions have already sown chaos, and the administration’s strategy may well be to bully the courts, if not to defy them altogether. The absence of any actual emergency underscores the imperative of resisting. But it also increases the odds that if we do resist, the rule of law and civil liberties can prevail.
That is, of course, until we face a real emergency.
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