"The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government."
— Ex Parte Milligan, Supreme Court of the United States, 1866.

Last week, President Donald Trump in one of his free-wheeling chats with the press offered to declare an emergency at the Texas/Mexico border. He suggested that such a declaration would give him more powers to arrest and use military force.

This reminded me of the media in New Jersey — after the Covid pandemic had passed — asking Gov. Phil Murphy when he would surrender his emergency powers that he claimed in March 2020, and he also claimed were not limited by the Constitution. His reply to the media was that he will surrender them when he surrenders them!

I am using the threat of President Trump and the recent example of Gov. Murphy in order to address the concept of emergency powers, but there is no hyperbole here. While the president has not yet declared an emergency, Gov. Murphy quite literally issued executive orders barring folks from doing what the Constitution guarantees them the right to do, and he imposed criminal penalties for violating his orders, and he had the folks who defied him arrested and prosecuted.

He claimed that somehow he can interfere with the exercise of basic human freedoms — going to church, going to work, shopping for food, operating a business, assembling in groups and traveling on government roads — because he declared a state of emergency.

If the government declares an emergency, can it thereby acquire the lawful power to interfere with constitutionally guaranteed freedoms? In a word: NO.

Here is the backstory.

When the states formed the federal government in 1789, they did so pursuant to the Constitution. The Constitution was written to establish and to limit the federal government. In 1791, just two years later, the Constitution was amended to add the Bill of Rights. The original understanding of the Bill of Rights was that it restrained only the federal government by articulating negative rights.