In 2007, Bush issued a homeland-security presidential directive that consolidated COG functions in the White House because FEMA was having trouble interacting with the Defense Department on crucial, classified issues. That directive also established, in public, the dual assumptions that guided Bush’s planning. The branches, led by the executive, would work together to prepare for catastrophes, but the executive branch would exercise unilateral authority to make sure that eight “national essential functions”—from “providing leadership visible to the nation and the world” to stabilizing the economy—continued to operate throughout a major emergency.
Read one way, the directive implies that, in an emergency, the executive branch has the authority to ignore Congress and the judiciary if it wants to. The body of law that governs national emergencies can certainly be interpreted that way. Many statutes and unclassified orders expand the authority of the military to carry out executive functions that amount to martial law (contravening the Posse Comitatus Act of 1878, which restricts what the military can do on American soil).
The directives even spell out what happens if someone lower in the line of succession takes advantage of uncertainty to assume presidential authority.
Executive Order 9066, signed by President Franklin Roosevelt, allows the military to establish operational zones inside the United States during emergencies. Nixon’s Executive Order 11490 allows for the emergency “control of enemies and other aliens” within U.S. borders—and for the Securities and Exchange Commission to shut down the stock markets. The National Emergencies Act in 1976 gives the president broad powers that the Army believes allow the commander in chief to “regulate the operation of private enterprise, restrict travel, and, in a variety of ways, control the lives of United States citizens,” according to a 2010 Army legal document obtained by National Journal.
Then there’s the Insurrection Act, which gives the president the power to use the military to forcibly contain “civil disturbances.” The rules of engagement are classified but “restrictive in nature,” according to the Army document. An “execute order” issued by the chairman of the Joint Chiefs of Staff in 2009 lays out some scenarios in which the military can use force, even without permission from higher authorities—usually when no federal law-enforcement officials are available, and lives and property are in imminent danger.
The military can even make arrests under those circumstances, under 10 USC 382. Title 10, Section 374 (b) 2 of the U.S. code permits the Defense Department to provide technological and personnel support to law-enforcement agencies. Under Title 18 of the code, the attorney general can request significant military assistance for containing and mitigating civil disturbances. Other laws permit emergency quarantines, too.
The most sensitive parts of continuity of government—the ones that expand executive power most conspicuously—are very closely held. They’ve been completely revised, according to several officials who have read them, for an era when state governments feel confident exercising their own power and when some Americans are predisposed to suspect martial-law scenarios. Classified executive orders spell out a range of powers the president can assume in the event of an incident of national significance. (Since 1958, one of these documents has provided for the suspension of habeas corpus for citizens on “security” lists at the time of a crisis.)
According to people who have seen them, the COG plans include draft presidential emergency-action directives, or PEADs, under which White House lawyers can fill in the blanks—in the case of “x,” the president may do “y.” But it’s unclear whether, during an emergency, these orders would be recognized by the federal agency or officials they’re directed to, or by state governments, or even by the American people. The Bush-era COG plans were based on the commonsense premise that no post-disaster government would be legitimate unless people perceived it to be a valid expression of their will and the constitutional balancing of powers among the branches. The Bush White House encouraged the federal branches to plan together.
The COG plans also include, however, directives for scenarios in which one or two branches of government cannot function. “As we would go through functions, we would realize, ‘Oh shit, that’s going to be a challenge because Congress can’t constitute a quo-rum,’ ” one of Hagin’s colleagues said. “So our plans were written from an operational concern about our ability to perform their role, and what flows from the executive branch in those situations is the scenario where they can’t [perform].”