Presidential Emergency Action Documents

PEADs and COG planning seems to have originated in the Eisenhower Administration in an attempt to plan for the aftermath of a nuclear exchange with the Soviet Union and designed to be rapidly implemented to prevent disruption to Government services. Of these orders there were plans for relocating centers for government functions and suspending habeas corpus.^[3] They even called for the creation of new government agencies to be chaired by a mixture of both civilian businessmen and cabinet secretaries without any scope of their exact function or lifespan, the only focus being on their activation on the day of a nuclear attack. These new agencies included: The Office of Censorship, National Manpower Agency, and National Food Agency. These agencies were authorized to "requisition or condemn private property or its use," pursuant to act of Congress and/or executive order, and it was thought this would be necessary to rebuild the country and maintain law and order.^[10]

1983 draft emergency legislation, the Defense Resources Act (DRA), would have authorized the president to execute certain emergency actions and would have also amended the Defense Production Act. DRA's table of contents included industrial plant seizure (Title V), price controls (Title VII) and censorship (Title X).^[11]

Had there been an emergency where the president felt he needed to request authority from Congress to impose limited censorship, DRA provided him statutory legal authority to issue executive orders implementing censorship within federal agencies. Compare Other Plan D Situation. In contrast, the president needs no additional statutory authority to use the Emergency Alert System, as Congress has already authorized these FCC EAS regulations. DRA Title X reads:

"Whenever the President shall deem that the public safety demands it, he may cause to be censored under such rules and regulations as he may from time to time establish, communications by mail, cable radio, television or other means of transmission crossing the borders of the United States. ..."

While no declassified PEAD exists, the DRA legislative draft text on censorship and other Presidential Emergency Actions is now in the public domain. The text of any such censorship PEAD would not be expected to exceed the grant of legislative authority within DRA Title X, based on present understanding. The 1983 draft does not propose suspension of the Constitution. Title II states its adherence to the Fifth Amendment. Congress is free to expand or contract authorities within DRA, subject to constraints within United States Constitution. DRA contains no constitutional suspension clauses per se.^[12]

Over time, the circumstances under which PEADs could be executed expanded to include events beyond nuclear warfare. One example is a 1968 FBI Memorandum from the Johnson Administration. The memorandum recommended a "Priority Apprehension Program based on dangerousness[sic] of individuals on SI" referring to the government "Security Index," and noting that the government had "recently amended [its] definition of a dangerous person in new Presidential Emergency Action Document 6, broadening it to include terrorists or persons who would interfere with Government operation and defense effort [sic]".^[13]" This Security Index contained the names of individuals whom the government considered threats and should be immediately apprehended and detained to prevent sabotage, espionage, and insurrection and contained 10,000 names.^[14] Former Carter Administration official referred to this as "The Enemies Briefcase."^[15]

In 1973, the Congressional Church Committee, attempted to uncover various unconstitutional acts by the Executive Branch in the wake of The Watergate Scandal. This committee ended up finding copious amounts of evidence that presidents and their agents had routinely violated the Constitution going back to at least the Roosevelt Administration. The conclusions of the Committee were that the President indeed could: “seize property and commodities, seize control of transport and communications, organize and control the means of production, assign military forces abroad, and restrict travel." They also revealed that States of Emergency had been implemented and remained permanent for decades. The Committee's findings were largely ignored by the public, as the Ford Administration did their best to thwart their activities, and a bill they eventually passed to terminate national emergencies after six months was completely ineffective and eventually forgotten. In 1977 Congress passed the International Emergency Economic Powers Act and the Office of Foreign Assets Control which expanded the President's ability to declare National Emergencies and implement unconstitutional policies.^[15]

No memoranda that are more recent than 1979 have been found that contain references to PEADs. However, CNN reported in 1991 that the Reagan administration had continued COG planning and revealed plans drafted by then Vice President George H. W. Bush that included a separate line of succession to the presidency conflicting with the Constitution.^[16]

Subsequent investigations have revealed that the Clinton, Bush, and Obama administrations have continued COG planning and maintained previous PEADs or developed new ones. The Security Index is also still maintained, now known as "Main Core," and is reported to contain eight million names.^[17] Since February 2000 PEADs are retained by FEMA "permanent[ly,]" until "superseded obsolete."^[18]

Though there were academic articles and books discussing them since the 1980s, explicit public discussion about PEADS in the media did not begin until March 2020 when President Donald Trump said: "I have the right to do a lot of things that people don't even know about," during a White House press briefing with Prime Minister Leo Varadkar of Ireland^[19] leading to an April 10 op-ed in the New York Times by Elizabeth Goitein, co-director of the Liberty and National Security Program at NYU's Brennan Center for Justice entitled "Trump Has Emergency Powers We Aren't Allowed to Know About."^[15]

This led to several pieces in major news outlets such as CBS News, Politico, and Harper's Weekly, as well as former senior White House officials and Senators going public with what they know of PEADS, such as Former Colorado Senator Gary Hart, Mark Medish, a senior National Security Council director under Clinton, and Joel McCleary, a White House official in the Carter Administration.^[20][21]

Comments from Mr. Trump, suggesting sweeping powers unrestricted by Congress or the courts, conflict with^[11] precedent in the historic record. President Ronald Reagan's staff briefed Congress on emergency plans. They explained Reagan might request emergency authorities, such as price controls and seizures of industrial facilities, if needed in an emergency. These were requests, not unilateral commands, and they contained protections for constitutional rights including the Fifth Amendment to the United States Constitution.

On July 22, 2020 a Senate bill, S.4279 or The REIGN Act of 2020, was introduced by Sen. Edward J. Markey D-MA that was the first piece of legislation to directly acknowledge PEADs, making reference to 56 documents described as "presidential emergency action documents" in the budget justification materials for the Office of Legal Counsel of the Department of Justice submitted to Congress in support of the budget of the President for fiscal year 2018. The bill’s sole purpose was to legislate PEADs. The bill would have forced the President to submit any PEAD that went into effect to congressional scrutiny within 30 days. Active PEADs would have to be mostly declassified within 180 days, and any parts considered too sensitive to declassify would have to be summarized in a public report. Finally, any documents in effect when the legislation passed would also have to be declassified or summarized. The REIGN Act ultimately died in committee.^[22]

On September 30, 2021, a bipartisan bill, known as H.R. 5410 or The National Security Reforms and Accountability Act (NSRAA), that borrows most of the language from the REIGN Act relating to PEADs, was introduced to Congress by James P. McGovern, D-MA, chairman of the House Rules Committee, and Rep. Peter Meijer, R-MI, ranking member of the United States Senate Appropriations Subcommittee on Homeland Security. The bill's stated purpose is "To provide for clarification and limitations with respect to the exercise of national security powers, and for other purposes".^[23]

A 2020 Harper's article^[15] presented a number of controversies. It described efforts by former Senator Gary Hart to obtain plans said to be secretive and obscure. While this may be true of some plans, it was not true of all. Hart had access to briefings in the Congressional Record. These printed briefings had no classification markings and have been in the public domain approximately five decades.^[11]

The Constitution contains a Suspension Clause,^[24] but it does not suspend the Constitution, the Impeachment Clause,^[25] or the Appropriations Clause.^[26] "If Congress fails to provide necessary funds, then the grants of power to the President are themselves for naught." If Congress fails to provide or revokes funding for presidential emergency actions, it is unclear how unpaid federal employees or soldiers would carry them out.

"The constitutional processes for resolving such an impasse may well be political; no federal court has ever ordered Congress to appropriate funds for the Executive Branch. ..."^[26]

A hypothetical example illustrates the issue of the nonjusticiable political question doctrine (see Constitutional Issues, this article). Article II of the US Constitution says: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States. ..." However, the Army and Navy require various items, such as transportation and fuel, to carry out presidential orders. If the Supreme Court cannot compel Congress to approve money for the Army and Navy, the president might give emergency action orders to the military they are unable to execute.^[26][27]

Indeed, the Suspension Clause deals specifically with suppression of rebellion and public safety. But suspending the writ of habeas and ordering the armed forces to suppress rebellion do not by themselves keep the peace. The Defense Resources Act or similar might address seizure of transportation, but the DRA also contemplates compensation to owners when the federal government commandeers private property. This creates a potential deadlock where neither Congress nor the president can unilaterally act and where courts have never stepped in to resolve such a specific impasse.^[26][24]

"While the federal government has a constitutional right to 'take' private property for public use, the Fifth Amendment's Just Compensation Clause requires the government to pay just compensation, interpreted as market value, to the owner of the property, valued at the time of the takings."^[28] In this light, due process would appear to require some form of hearing or other just process before the president could seize transportation to suppress rebellion, as well as some form of compensation, presumably paid by Congress.^[28]

"The [Suspension] Clause does not specify which branch of government has the authority to suspend the privilege of the writ [of habeas], but most agree that only Congress can do it."^[24]

The Brennan Center for Justice declared that "we do not know what PEADs contain today" but that in the past, they have been known to include suspension of the writ of habeas corpus.^[29][30]

Professor Amanda L. Tyler, writing in the Stanford Law Review in 2006, explained some of the many constitutional concerns. "An argument that suspension is a nonjusticiable political question would lead to the result that suspension is a matter on which the Constitution imposes such restraints, but that many, if not all, of those restraints are not subject to judicial enforcement."^[27]

Tyler underscores possible threats to liberty that may arise from emergency actions: "Where the Executive detains someone without affording that party an impartial forum to test the lawfulness of the detention, this act unquestionably constitutes a deprivation of liberty without due process."^[27]

Some of the key Supreme Court cases imposing limits on presidential emergency actions include Ex parte Milligan (restricting martial law) and Youngstown Sheet & Tube Co. v. Sawyer. In the Youngstown case, the Supreme Court held: "The President did not have the inherent authority to seize private property in the absence of either specifically enumerated authority under Article Two of the Constitution or statutory authority conferred on him by Congress." It appears Title V of the draft Defense Resources Act was intended to convey such statutory authority if ever needed.

• Thronson, Patrick A. (2013). "Toward comprehensive reform of America's emergency law regime" (PDF). University of Michigan Journal of Law Reform. 46 (2): 737–787. doi:10.36646/mjlr.46.2.toward.thronson. ISSN 2688-4933. SSRN 2056822.Conaty, Matthew L. (2010). "The atomic midwife: The Eisenhower administration's continuity-of-government plans and the legacy of 'constitutional dictatorship'". Rutgers Law Review. 62 (3). SSRN 1553553.
• Federal Emergency Management Agency (February 29, 2000). FEMA Manual 5400.2 (PDF). Archived from the original (PDF) on 2003-03-13.
• Hobson v. Brennan, 646 F. Supp. 884, 896 (D.D.C. 1986). (reproducing an FBI memorandum to W.C. Sullivan from C.D. Brennan entitled "Program for Apprehension and Detention of Persons Considered Potentially Dangerous to the National Defense and Public Safety of the United States (DETPRO)")