The myth of emergency powers

OPINION:

“The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.” — Ex Parte Milligan, Supreme Court of the United States, 1866.

President Trump, in one of his freewheeling chats with the press, offered last week to declare an emergency at the Texas-Mexico border. He suggested that such a declaration would give him more powers to arrest and use military force.

This reminded me of the media in New Jersey, after the COVID-19 pandemic emergency had passed, asking Gov. Phil Murphy when he would surrender the emergency powers that he claimed in March 2020 and claimed were not limited by the Constitution. He replied to the media that he would surrender the powers when he surrendered them.

I am using Mr. Trump’s threat and Mr. Murphy’s recent example to address the concept of emergency powers, but there is no hyperbole here. Although the president has not yet declared an emergency, Mr. Murphy issued executive orders barring folks from doing what the Constitution guarantees them the right to do. He imposed criminal penalties for violating his orders and had the folks who defied him arrested and prosecuted.

He claimed that he could somehow interfere with the exercise of basic human freedoms — going to church, going to work, shopping for food, operating a business, assembling in groups and traveling on government roads — because he had declared a state of emergency.

If the government declares an emergency, can it acquire the lawful power to interfere with constitutionally guaranteed freedoms? In a word: No.

Here is the backstory.

When the states formed the federal government in 1789, they did so pursuant to the Constitution, which was written to establish and limit the federal government. Two years later, in 1791, the Constitution was amended to add the Bill of Rights. The original understanding of the Bill of Rights was that it restrained only the federal government by articulating negative rights.

A negative right isn’t a grant of freedom; it restrains the government from interfering with exercising a preexisting freedom. Thus, the First Amendment does not grant the freedom of speech because it comes from our humanity, but it does prohibit Congress from infringing on it.

The Ninth Amendment, which restrains the federal government and the states, is the work of James Madison’s genius. Madison, who drafted the Constitution and later chaired the House of Representatives committee that wrote the Bill of Rights, wrestled with his colleagues about the best way to protect unenumerated rights.

The big-government crowd in Congress did not want any enumerated rights expressed in writing. They argued that by listing a few, the unlisted rights would be subject to government assault.

The small-government crowd argued that by listing no rights immune from government interference, the Constitution would invite the government to assault whatever rights it wished.

Madison’s solution to all this was to add a Bill of Rights and the Ninth Amendment. That amendment recognizes that we all have pre-political, fundamental, natural rights — too numerous to enumerate — and prohibits all government from disparaging them.

During the War Between the States, President Lincoln did more than disparage them. He ordered the military to arrest newspaper editors and even public officials in the North and confine them without trial or try them before military tribunals for disloyalty because of their public criticism of him. He claimed that “emergency” somehow gave him powers from sources other than the Constitution.

One of Lincoln’s critics, Lambdin P. Milligan, argued in favor of secession from the Union and was convicted by a military tribunal of disloyalty and sentenced to death. He sued for his freedom and won.

In a unanimous decision cited hundreds of times, the Supreme Court rejected the concept that an “emergency” somehow creates or increases government power. The court condemned the “emergency” as “more pernicious” than any other stated assault on the Constitution. This condemnation is still the law of the land.

Thus, no matter the unexpected events — war, invasion, floods, pandemic, fear, myth — individual natural rights, protected from government interference by the Ninth Amendment, trump the unconstitutional words of government officials and invalidate their efforts to enforce compliance. Lincoln’s rules, like Mr. Murphy’s orders and Mr. Trump’s threats, are constitutionally empty because they do not have the force of law since they directly contradict the Constitution and the Supreme Court’s most definitive interpretations.

When Mr. Trump became president and Mr. Murphy became the governor of New Jersey, they took an oath to enforce the Constitution. Whatever blind spots or mental reservations they may have had, the Constitution is the supreme law of the land, and every public official, federal and state, is bound by it.

If government officials could declare an emergency and thereby be relieved of the obligation to defend the Constitution and the rights it guarantees, then no liberty would be safe.

Because our rights are natural and individual and because we did not all consent to their suspension, no government may morally or constitutionally suspend them, and we must resist all efforts to do so. Of course, there is a dark side to this. The government that has destroyed liberty and taken property has also immunized itself from financial liability for the consequences of its official misdeeds.

Yet, as Thomas Jefferson wrote in the Declaration of Independence, whenever any government destroys liberty and takes property, it is the right of the people to alter or abolish it.

• To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.