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Rule by Decree: The Emergency State’s Plot to Override the Constitution

By John & Nisha Whitehead | The Rutherford Institute | June 6, 2023

We have become a nation in a permanent state of emergency.

Power-hungry and lawless, the government has weaponized one national crisis after another in order to expand its powers and justify all manner of government tyranny in the so-called name of national security.

COVID-19, for example, served as the driving force behind what Supreme Court Justice Neil Gorsuch characterized as “the greatest intrusions on civil liberties in the peacetime history of this country.”

In a statement attached to the Supreme Court’s ruling in Arizona v. Mayorkas, a case that challenged whether the government could continue to use it pandemic powers even after declaring the public health emergency over, Gorsuch provided a catalog of the many ways in which the government used COVID-19 to massively overreach its authority and suppress civil liberties.

Yet while the government’s (federal and state) handling of the COVID-19 pandemic delivered a knockout blow to our civil liberties, empowering the police state to flex its powers by way of a bevy of lockdowns, mandates, restrictions, contact tracing programs, heightened surveillance, censorship, overcriminalization, etc., it was merely one crisis in a long series of crises that the government has shamelessly exploited in order to justify its power grabs and acclimate the citizenry to a state of martial law disguised as emergency powers.

These attempts to use various crises to override the Constitution are still happening.

It doesn’t even matter what the nature of the crisis might be: civil unrest, the national emergencies, “unforeseen economic collapse, loss of functioning political and legal order, purposeful domestic resistance or insurgency, pervasive public health emergencies, and catastrophic natural and human disasters.”

They have all become fair game to a government that continues to quietly assemble, test and deploy emergency powers a long laundry list of terrifying powers that override the Constitution and can be activated at a moment’s notice.

We’re talking about lockdown powers (at both the federal and state level): the ability to suspend the Constitution, indefinitely detain American citizens, bypass the courts, quarantine whole communities or segments of the population, override the First Amendment by outlawing religious gatherings and assemblies of more than a few people, shut down entire industries and manipulate the economy, muzzle dissidents, “stop and seize any plane, train or automobile to stymie the spread of contagious disease,” reshape financial markets, create a digital currency (and thus further restrict the use of cash), determine who should live or die.

While these are powers the police state has been working to make permanent, they barely scratch the surface of the far-reaching powers the government has unilaterally claimed for itself without any pretense of being reined in or restricted in its power grabs by Congress, the courts or the citizenry.

As David C. Unger, observes in The Emergency State: America’s Pursuit of Absolute Security at All Costs, “Life, liberty, and the pursuit of happiness have given way to permanent crisis management.”

The seeds of this ongoing madness were sown several decades ago when George W. Bush stealthily issued two presidential directives that granted the president the power to unilaterally declare a national emergency, which is loosely defined as “any incident, regardless of location, that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the U.S. population, infrastructure, environment, economy, or government functions.“

Comprising the country’s Continuity of Government (COG) plan, these directives (National Security Presidential Directive 51 and Homeland Security Presidential Directive 20), which do not need congressional approval, provide a skeletal outline of the actions the president will take in the event of a “national emergency.”

Just what sort of actions the president will take once he declares a national emergency can barely be discerned from the barebones directives. However, one thing is clear: in the event of a national emergency, the COG directives give unchecked executive, legislative and judicial power to the president.

The country would then be subjected to martial law by default, and the Constitution and the Bill of Rights would be suspended.

Essentially, the president would become a dictator for life.

It has happened already.

As we have witnessed in recent years, that national emergency can take any form, can be manipulated for any purpose and can be used to justify any end goal—all on the say so of the president.

The emergency powers that we know about which presidents might claim during such states of emergency are vast, ranging from imposing martial law and suspending habeas corpus to shutting down all forms of communications, including implementing an internet kill switch, and restricting travel.

Yet according to documents obtained by the Brennan Center, there may be many more secret powers that presidents may institute in times of so-called crisis without oversight from Congress, the courts, or the public.

Remember, these powers do not expire at the end of a president’s term. They remain on the books, just waiting to be used or abused by the next political demagogue.

So, too, every action taken by the current occupant of the White House and his predecessors to weaken the system of checks and balances, sidestep the rule of law, and expand the power of the executive branch of government makes us that much more vulnerable to those who would abuse those powers in the future.

These presidential powers—acquired through the use of executive orders, decrees, memorandums, proclamations, national security directives and legislative signing statements and which can be activated by any sitting president—enable past, president and future presidents to operate above the law and beyond the reach of the Constitution.

This is what you might call a stealthy, creeping, silent, slow-motion coup d’état.

If we continue down this road, there can be no surprise about what awaits us at the end.

We must recalibrate the balance of power.

For starters, Congress should put an end to the use of presidential executive orders, decrees, memorandums, proclamations, national security directives and legislative signing statements as a means of getting around Congress and the courts.

At a minimum, as The Washington Post suggests, “all emergency declarations [s]hould expire automatically after three or six months, whereupon Congress would need to vote upon any proposed extension.”

We’ve got to start making both the president and the police state play by the rules of the Constitution.

As I point out in my book Battlefield America: The War on the American People and in its fictional counterpart The Erik Blair Diaries, it must start with “we the people.”

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org.

Nisha Whitehead is the Executive Director of The Rutherford Institute.

Information about The Rutherford Institute is available at www.rutherford.org.

June 6, 2023 Posted by aletho | Civil Liberties | Human rights, United States | Leave a comment

“Your Speech is Violence”: How the Mob is Using a New Mantra to Justify Campus Violence

By Jonathan Turley | The Hill | June 4, 2023

“Silence is violence.” When those words became a popular mantra years ago on college campuses, I wrote that the anti-free speech movement was moving toward compelled speech while declaring dissenting views to be harmful.

Today, it isn’t just silence that is considered violence on college campuses. It is also speech, as both faculty and students are actively shutting down opposing views on subjects ranging from abortion to climate change to transgender issues.

Recently, many people were shocked by a videotape of Hunter College professor Shellyne Rodríguez trashing a pro-life student display in New York. Most were focused on her profanity and vandalism, but there were familiar phrases that appeared in her diatribe to the clearly shocked students.

Before trashing the table, she told the students, “You’re not educating s–t […] This is f–king propaganda. What are you going to do, like, anti-trans next? This is bulls–t. This is violent. You’re triggering my students.”

The videotape revealed one other thing. At Hunter College, and at other colleges, it seems that trashing a pro-life student display and abusing pro-life students is not considered a firing offense. Hunter College refused to fire Rodríguez.

The PSC Graduate Center, the labor organization of graduate and professional schools at the City University of New York, supported that decision and said Rodríguez was “justified” in trashing the display, which the organization described as “dangerously false propaganda” and “disinformation.”

Rodríguez later put a machete to the neck of a reporter, threatened to chop him up and then chased a news crew down a street with the machete in hand. Somewhere between the machete to the neck and chasing the reporters down the street, Hunter College finally decided that Rodríguez had to go.

Rodríguez denounced the school for having “capitulated” to “racists, white nationalists, and misogynists.” She explained that her firing was just a continuation of “attacks on women, trans people, black people, Latinx people, migrants, and beyond.”

The redefinition of opposing views as “violence” is a favorite excuse for violent groups like antifa, which continue to physically assault speakers with pro-life and other disfavored views.  As explained by Rutgers Professor Mark Bray in his “Antifa: The Anti-Fascist Handbook,” the group believes that “‘free speech’ as such is merely a bourgeois fantasy unworthy of consideration.”

As one antifa member explained, free speech is a “nonargument… you have the right to speak but you also have the right to be shut up.”

When people criticized antifa for its violent philosophy, MSNBC’s Joy Reid responded to the critics that “you might be the fascist.”

Faculty members have followed this sense of license to silence others. Former CUNY law dean Mary Lu Bilek even insisted that disrupting a speech on free speech was free speech. (Hunter is part of the CUNY system.)

The same week as the Rodríguez attack at the State University of New York at Albany, sociology professor Renee Overdyke shut down a pro-life display and then allegedly resisted arrest.

Just last week, the Pride Office website at the University of Colorado (Boulder) declared that misgendering people can be considered an “act of violence.”

This week, University of Michigan economics professor Justin Wolfers declared that some of those boycotting the store Target over its line of Pride Month clothing were engaging in “literal terrorism.” (He insists that he was referring to those confronting Target employees.)

Faculty have also justified attacks on pro-life figures. At the University of California, Santa Barbara, feminist studies associate professor Mireille Miller-Young physically assaulted pro-life advocates and tore down their display. 

She pleaded guilty to criminal assault, but the university refused to fire her. Instead, some faculty and students defended her, including claiming that pro-life displays constitute terrorism. The University of Oregon later honored Miller-Young as a model for women advocates.

Likewise, at Fresno State University, public health professor Dr. Gregory Thatcher recruited students to destroy pro-life messages.

Other faculty have called for or countenanced violence against Republicans and conservatives. Professors have shouted down speakers, destroyed property, participated in riots and verbally attacked students.

University of Rhode Island professor Erik Loomis defended the murder of a conservative protester and said he saw “nothing wrong” with such acts of violence. He was later elevated to the position of director of graduate studies of history.

As faculty commit or support violence, students are assured that others are the violent ones. Recently, at the University of Texas at Austin, Professor Kirsten Bradbury tested her students on psychology by asking them “which sociodemographic group is most likely to repeatedly violate the rights of others in a pattern of behavior that includes violence, deceit, irresponsibility, and a lack of remorse?” Of course, the answer was wealthy white men.

The lesson took with students. A recent poll shows that 41 percent of college students now believe violence is justified to fight hate speech. At Cornell, a conservative speaker was shouted down, met with the common mantra that “your words are violence.” At Case Western, the student newspaper editorialized against university recognition of a pro-life group because its pro-life views are “inherently violent” and “a danger to the student body.” At Wellesley, student editors declared that it was time to shut down conservative speakers and that “hostility may be warranted.” They added, “The spirit of free speech is to protect the suppressed, not to protect a free-for-all where anything is acceptable, no matter how hateful and damaging.”

Those views did not spontaneously appear in the minds of these students. At one time, tolerance for free speech was the very touchstone of higher education and a common article of faith for students. These students are the product of years of being told that free speech is dangerous and harmful if left unregulated. From elementary school to college, they were taught that they did not have to be “triggered” by the speech of others.

We are still (thankfully) drawing the line at machete attacks. But it is the underlying views of Rodríguez that are the true threat, and they are being replicated throughout the country. We are raising a generation of censors and speech-phobics.

If we want to stop or reverse this trend, Congress must act. I have proposed legislation that would deny federal funding to schools that do not protect core free speech principles. We are funding schools that are taking a machete to the defining right of our democracy.

It is akin to the recent resolution of the case of an antifa member who took an axe to Sen. John Hoeven’s (R-N.D.) office in Fargo. Thomas “Tas” Alexander Starks, 31, was given probation… and his axe back.

We may not be able to deter people from speaking through machetes and axes, but we can at least stop subsidizing the hardware.

June 5, 2023 Posted by aletho | Civil Liberties | Human rights, United States | Leave a comment