Based on budgetary requests from the Department of Justice to Congress and other documents, it appears that presidential emergency action documents were revised in the late 1980s, in the 2000s and again starting in 2012 and continuing into the Trump administration. The latest numbers available suggest there are between 50 and 60 such documents in existence.

There is no question that presidential emergency action documents could be used in a pandemic like that caused by the coronavirus. A 2006 Nuclear Regulatory Commission memorandum addressed that agency’s plan under President Bush’s 2005 “National Strategy for Pandemic Influenza.” The concern was how to maintain operations in response to a pandemic that proved to be “persistent, widespread, and prolonged.” The memo’s authors offered the Nuclear Regulatory Commission 14 bullet points of actions, including to “review presidential emergency action documents” and “select those most likely to be needed” by the commission.

The most notable aspect of presidential emergency action documents might be their extreme secrecy. It’s not uncommon for the government to classify its plans or activities in the area of national security. However, even the most sensitive military operations or intelligence activities must be reported to at least some members of Congress. By contrast, we know of no evidence that the executive branch has ever consulted with Congress — or even informed any of its members — regarding the contents of presidential emergency action documents.

That is a dangerous state of affairs. The coronavirus pandemic is fast becoming the most serious crisis to face this country since World War II. And it is happening under the watch of a president who has claimed that Article II of the Constitution gives him “the right to do whatever I want.” It is not far-fetched to think that we might see the deployment of these documents for the first time and that they will assert presidential powers beyond those granted by Congress or recognized by the courts as flowing from the Constitution.

Even in the most dire of emergencies, the president of the United States should not be able to operate free from constitutional checks and balances. The coronavirus crisis should serve as a wake-up call. Presidential emergency action documents have managed to escape democratic oversight for nearly 70 years. Congress should move quickly to remedy that omission and assert its authority to review these documents, before we all learn just how far this administration believes the president’s powers reach.

Elizabeth Goitein is a co-director and Andrew Boyle is a lawyer at the Liberty and National Security Program at the Brennan Center for Justice at New York University School of Law.

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