by Bob Barr
On Feb. 14, Prime Minister Justin Trudeau gave Canadians a Valentine’s Day present, invoking the draconian “Emergencies Act” and suspending a wide range of civil liberties otherwise enjoyed by his countrymen.
Lest Americans conclude that our constitutional republic is safe from such facially dictatorial actions, they should know that under existing federal laws and the laws of every state, the president or a governor could take similar “emergency” action at any time they decide an “emergency” presents itself. COVID has demonstrated this is spades.
Regardless of whether a real emergency exists prior to a president or governor invoking such powers, and regardless of whether such declaration is for a statutorily limited time, consequential damage to the fabric of a free society results. At a minimum, declaring an “emergency” and suspending individual liberties serves as a “warning” to citizens that they had best be careful what they say and do in the future.
Trudeau’s actions in declaring a “national emergency” because of an irksome, but peaceful, trucker’s strike should cause Americans to pay far closer attention to “emergency powers” laws here at home. Doing so might force some of our countrymen to question the abject fear that has undergirded much of public policy in the United States since the terror attacks of 9/11 — made far worse by the manner in which governments at all levels have responded to the COVID pandemic in the past biennium.
From a practical standpoint, as we see in Canada, it matters little whether the declaration of the “emergency” fits clearly within the four corners of the emergency law that is invoked. What matters is the presence of circumstances in which an elected leader is able to stoke the flames of fear and anger in a sufficiently large segment of the electorate, so that the invocation of the law seems to constitute a reasonable response.
Once an “emergency” law is on the books of the sovereign entity, whether of a state or the federal government, all it takes is a “stroke of the pen, law of the land” (to quote former Bill Clinton adviser Paul Begala) to unleash the awesome powers at that sovereign’s disposal. Just watch the videos emerging from Ottawa to see how quickly the nightmare unfolds once the document is signed.
The actual form of the government declaring the emergency is of little consequence. Abuse of emergency powers can happen in a representative democracy such as ours just as easily as in a Canadian parliamentary system. Moreover, Republicans often are just as likely to play the “emergency powers” card as are their Democrat counterparts. It was, after all, Republican President Donald Trump who, in March 2020, invoked the powers of at least three federal “national emergency” laws to meet a perceived COVID emergency threat.
Granted, many emergency declarations by state and federal officials are focused toward and limited to natural disasters, such as hurricanes or floods, and used primarily to free up government assistance. However, the actual powers nestled within those laws are frighteningly expansive. For example, a U.S. president arguably could, among other actions upon declaring a “national emergency “ (not expressly defined in federal laws), seize control of the internet pursuant to a 1930s era communications law or freeze individuals’ financial accounts in reliance on 1970s era laws.
At the state level, Second Amendment supporters will recall law enforcement officers in New Orleans seizing, at times forcibly, over 1,000 lawfully owned private firearms in the aftermath of Hurricane Katrina. Even though subsequent legal action undertaken by the NRA and other gun-rights groups successfully challenged the seizures, many firearms never were returned to their owners.
Even today, with medical and scientific evidence clearly demonstrating that lingering COVID hazards are not dire and are manageable, many government agencies, including public schools in jurisdictions across the country, are refusing to hand back all the “emergency” powers they grabbed in early 2020.
Founding Father James Madison had it right when he wrote in Federalist 57 that placing the powers of all three branches of government in the hands of one entity (whether a prime minister, a governor or a president) is “the very definition of tyranny.”
Today, 234 years later, tyranny is still tyranny, even if it is only “temporary.”
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He served as the United States Attorney in Atlanta from 1986 to 1990 and was an official with the CIA in the 1970s. He now practices law in Atlanta, Georgia and serves as head of Liberty Guard.