The 13 American colonies/states during the Revolution and until the ratification of the US Constitution functioned in many ways, like independent countries. In fact, it was their legislatures – not the people – that approved the Constitution, as countries would a treaty. The residents of the 13 states were accustomed to identifying themselves by their state first and were jealous of protecting their local powers, and many still are.  

Thus, there were two principal positions at the Constitutional Convention: one wanted a stronger central government and the other wanted to retain their state powers against a weaker national authority. However, after their almost 13 year experience with the weak, dysfunctional Articles of Confederation, the  majority early on accepted a stronger national government. And the Virginia Plan provided the template. And then there is the directly related Constitutional debate over the “Reserved Powers” (10th Amendment: “The powers not delegated to the United States, nor prohibited by it to the states, are preserved to the states respectively or to the people.” )

However, the conflict over states rights, even after the Civil War reconfirmed the dominance of the Union, continues in 2023. States pass legislation on important issues, that differ from one another, the national consensus and/or the Federal Constitutional position. The states rights’ squabbles now play out in the Federal court system.   

Another vocal group  in 1787, were those who feared that strong states or the powerful Federal Government could crush individuals.  Thus, the Bill of Rights , the first 10 Amendments to the Constitution, were added prior to ratification, giving the Feds authority to protect personal rights, e.g. to practice their religion, to assemble, free speech etc. 

By the middle of the 19th Century though, it became clear that a central government that did nothing regarding individuals participating in the US Congress and/or Executive Branch, was allowing a small minority of very wealthy people from Southern states, to take over the country and threaten to control the people. Thus, Abraham Lincoln and U.S. Grant and millions of Americans learned, at great cost) what their government could do, to impose equal rights before the law, equal access to resources and more, that were embodied in the 13th, 14th and 15th Amendments. All of which strengthened the hand of the Federal Government. 

Similarly, early in the 20th Century the damaging impact of industrialization expanded the role of the Central Government again, to protect individual workers from abuse by wealthy owners of giant corporations.  Once more the Feds stepped in, this time to rein in industrialists and to regulate how they did business. The strategic goal was to level the economic playing field. 

In the 1930s, following the catastrophe of the Great Depression, the FDR Administration added more missions to the USG. It created organizations to provide work for millions of unemployed Americans and ultimately introduced a basic social safety net. 

As we move through the 21st Century, most, but not all, Americans accept the evolving list of USG tasks and the authority of the Federal Government to continue to protect equal rights, to maintain a more or less level economic playing field as well as an effective social safety net. 

None of us knows specifically what comparable existential events will challenge us in the decades ahead, but the ability of our Federal Government to address them successfully, as in the past, should be a given. 

Tom Timberman is an Army vet, lawyer, former senior Foreign Service officer, adjunct professor at GWU, and economic development team leader or foreign government advisor in war zones. He is the author of four books, lectures locally and at US and European universities. He and his wife are 24 year residents of Kent County.

I doubt I’m the only one in the nine counties, who remembers when voters were hyper motivated to write letters or fax their members of Congress about health care,  wars, civil rights or to join demonstrations or sit-ins or wave campaign signs. 

In the 21st Century we text, join chat rooms or at times grab a gun and vest and march off to protect or protest brunch drag shows or library readings.  This Halloween, a man firebombed a Tulsa doughnut shop because it had hosted a drag event.  I admit, over the years I’ve enjoyed and laughed at drag performances. However, straight male adults are not the issue. It’s the T” in LGBTQ,  i.e. transgender and the kids.  

In the last quarter of the 20th Century, the US population began to accept L & Gs as normal friends and colleagues or just regular people.  Federal and state laws were passed prohibiting discrimination based on sexual orientation; some more recently, added transgender.  A movement emerged later, led by gay parents and others, who wanted their children to gain a broader understanding of human sexuality. Thus, was launched family-welcoming drag shows and book readings in schools and libraries, aimed at exploring sexual diversity.    

And then circa 2015, sex and children became politicized in different ways: most prominently by school boards who began banning exposure, by younger students, to sexual subjects in class rooms,  as well as books addressing them. At the same time, the popularity of drag performances by restaurants and other commercial venues became widespread, profitable attractions.  However, before the recent midterm elections, higher volume rhetoric against drag shows and readings with children in the audience , sharpened. 

Senator Marco Rubio said these events “indoctrinate children;” and Governor DeSantis pronounced them part of a “disturbing trend”. The president of the Family Research Council accused the people who organized a drag reading at a Montana zoo, of “…targeting our children and grooming them (to decide to become LGBTQ).  

Several states are considering legislation to prevent transgender people from participating in pubic shows, regardless of the nature of the performance. Other states are focusing on laws to prevent drag shows or in Texas to stop minors from attending drag performances.  The Texas draft text defining drag is quite comprehensive:  “…any show in which a performer exhibits a gender identity that is different than the performer’s gender assigned at birth, using clothing, makeup or other physical markers. 

I’m told, whether it’s true or not, that President Nixon introduced abortion as a campaign issue, during his reelection bid. In retrospect, I wish he had stuck to law and order and civil rights and violence in politics, following the assassinations of Martin Luther King and Robert Kennedy. 

My grandchildren consider me hopelessly antique, but that’s OK. I felt the same way about mine, but  just didn’t tell them. 

In December 2022, I wish our politicians argued and railed about national and state issues related to substantive, problem-solving and legislation aimed at serving the commonweal.  However, my grandchildren are doubtlessly correct, I am terminally oriented to the past. 

Transvestic Fetishism refers to drag performances or readings.  

Tom Timberman is an Army vet, lawyer, former senior Foreign Service officer, adjunct professor at GWU, and economic development team leader or foreign government advisor in war zones. He is the author of four books, lectures locally and at US and European universities. He and his wife are 24 year residents of Kent County.

“We may also suspect that they (majority opinion) suspected that emergency powers would tend to kindle emergencies.” Supreme Court Justice Jackson  (Youngstown Sheet & Tube Co. v. Sawyer 1952)  decided President Truman did NOT have the power to take over US steel companies.

Few Americans outside a gaggle of scholars, Constitutional law savants and national security buffs could possibly be familiar with the easy availability US presidents have to broad “dictatorial” powers. They have been drawn on by chief executives throughout US history, usually sparingly, but sometimes not. Last year’s January 6, 2021 insurrection and assault on the US Capitol generated, for different reasons, considerable attention to them.    

Wanting to learn the reality and extent of these powers, I did some research. What I found was startling. The President can do virtually anything, if s/he words it right. In past years,  Presidential applications of these authorities have at times, seriously, even severely affected the lives of numerous Americans. And appeared to others then, to contradict citizens’  traditional beliefs in their Constitutional and statutory rights and privileges. 

In general, Americans and our political leaders have successfully relied on the probity and moral judgment of our Chief Executives to avoid misusing these literally extraordinary, latent powers. There have been a few exceptions. 

However, we’re now in a somewhat distorted political environment featuring personal vitriol and at times, brutality. it seems prudent to understand the nature of these very potent presidential action-options when an increasing number of  Americans believe violence is acceptable to correct even false assertions of political wrongdoing. These conditions, unless countered, could worsen and lead a president to draw on these powers. 

Martial Law

What does it actually mean?  Simply put, it refers to those times when an American region, state or municipality or the entire country (only once, during Civil War), is placed under the control of military forces. Both the President and Congress have the authority to impose martial law, because both can assert control over national guard units. And in the case of the President, over Federal Forces as commander-in- chief. There are some constraints (Posse Comitatus Act -1878), but Congress has given considerable latitude to the White House. Governors, within their state borders, can also declare martial law.

In the United States, martial law has been imposed infrequently over 2 plus Centuries (68 times) usually in times of war, public unrest/conflict/violence or in cases of natural disasters. Some examples: New Orleans during War of 1812,  the Great Chicago Fire (1871), the San Francisco Earthquake (1906), the Omaha Race Riot (1919) and the  West Coast Waterfront Strike  (1934) and after the Japanese attack on Pearl Harbor (1941). 

And more recently, to enforce Federal school integration laws in Little Rock ,Arkansas (1957) and to counter violence in the Cambridge, MD. racial riots (1963).

Habeas Corpus and the 5th Amendment 

Conceptually, the declaration of martial law is tied to the suspension of the Constitutional right of Habeas Corpus (Art. 1, Sec. 9) , guaranteeing US citizens, a hearing and trial upon lawful arrest. Section 9 states this right “…will not be suspended unless when in cases of rebellion or invasion, the public safety may require it.” 

The most egregious example of misuse, occurred in 1942 when President Roosevelt issued executive order #9066 suspending 120,000 Japanese-Americans protection under Habeas Corpus and the 5th Amendment.  The latter holds  that: “No person shall be deprived of life, liberty or property without due process.”  The last Japanese Americans were released from US internment camps in March, 1946. 

Some commentators also include President G.W. Bush’s introduction of a torture program after the 9/11 attacks,  in this category of excessive use of these powers.. 

Emergency Presidential Authorities

During the late 18th, 19th and the early 20th Centuries, Congress passed laws giving the president (Executive Branch) considerable flexibility of action when confronting military, economic and labor crises. Prime among them, is the 1807 Insurrection Act that allows the president to deploy Federal troops either upon the request of a state governor or legislature, to stop an insurrection within their borders. Or if s/he believes it is impractical to use normal courses of action, Federal forces may be used to suppress: “insurrection, domestic violence, unlawful combination or conspiracy that impedes the course of justice.” Last Century, these legislated powers became more operationally formalized with the passage of the National Emergencies Act, requiring the president to declare a state of National Emergency before drawing on them. Once invoked, chief executives over many years seldom terminated them. One example, President Truman’s use of the National Emergencies Act (1950) – Korean War -was still in force, and was used during the Vietnam War. 

These Emergency Powers address more than the military and can include agricultural exports and the validity of public contracts. Curiously, there is no requirement that the powers used, be related to the rationale behind the Declaration of a National Emergency. And there are other laws that allow the Executive Branch to take extraordinary action under certain conditions, without a declaration of emergency.  It’s complicated.

Cyberspace, the Communications Act of 1924 and Twitter

In 1942, Congress amended the Communications Act to give the president the authority to close or take control of “any facility or station for wire communications”, upon his proclamation “that there exists a state or threat of war involving the United States.” Finding a “threat of war” in 2022, is not a problem.

If Elon Musk proceeds to liberate Twitter from any constraints and President Biden or his successors decide as President Trump did, that the “…search engines were RIGGED to serve up negative articles about him”, maybe Musk or other big internet companies should  become concerned about a possible application of Emergency Powers, including a 21st Century reinterpretation of the Communications Act.  

On November 8, 2022 the Midterm Elections will take place across the United States and determine the composition of the Congress, the occupants of various governors’ mansions, state legislatures and multiple local offices. 

For weeks, media commentators and multiple social media platforms have been reminding Americans of the increasing levels of politically related violence and last year’s January 6 insurrection. Many candidates have been asked:i “will you accept the results of the election, if you lose?” The absence of a loud YES from many has led to speculation that accusations of Voter Fraud will surface again as they did in 2020, and lead to similar instances of  mob violence.  

And then on October 28th, the husband of Speaker of the House,Nancy Pelosi, was viciously attacked in their San Francisco home by a hammer-wielding man yelling “Where’s Nancy?”

None of the foregoing has anything to do with the presidency or the incumbent’s special powers. True, but the current political atmosphere is infected with hatred, anger and a growing fear or  anticipation that more violence will erupt following November 8th.  Absent, some “deus ex machina”, it is unlikely all popular political attitudes will substantially moderate before the 2024 Presidential Election. 

And who knows how a new president will view these dormant extraordinary powers after January 20, 2025? 

Tom Timberman is an Army vet, lawyer, former senior Foreign Service officer, adjunct professor at GWU, and economic development team leader or foreign government advisor in war zones. He is the author of four books, lectures locally and at US and European universities. He and his wife are 24 year residents of Kent County.