Rachel Kleinfeld writes in Just Security that the United States is already being ruled under a state of emergency. “It began under President George W. Bush and continued under President Obama. President Trump just has to ice the cake.”

She notes that ‘when people think of emergency rule, they usually picture Hitler’s declaration in Germany after the Reichstag fire or Colombia, which spent 37 out of 40 years in a state of emergency from 1952 to 1992. But Colombia got a new constitution in 1991, as did Germany after World War II.”

But these are exceptions, because “Their experience with severe emergency actually created a strong public reaction against the experience that helps to safeguard these countries.”

Kleinfeld points to a series of emergency cases compiled by the International Commission of Jurists from around the world, out of which Kim Lane Scheppele, has compiled “an ’emergency script’ that gets trotted out nearly every time, with remarkable stability in the actions and their order in various countries. Emergencies aren’t usually declared at the outset with a capital E – instead, they walk across the line slowly.

“In the early stages of emergency, legislatures and publics pay attention – no one wants to let democracy erode too much. But then, they get used to things. What was exceptional becomes normal. It gets normalized in ordinary law, which sets a new benchmark.”

Kleinfeld points to a recent example: “the U.S. Congress was careful to insert a five-year sunset clause into the Patriot Act. Five years later, Congress removed the clause and made fourteen of the sixteen clauses permanent.”

Following the  “slow creep starts when the Executive branch slowly centralizes power:

Gradually, the courts are marginalized; this is often not abrupt, and the main actor isn’t always clear:

Over time, legislatures and courts both take themselves out of the loop and choose to opt out of the most political decisions, rather than being pushed by the Executive.

Militarization comes next, in that the military starts to perform jobs formerly done by civilians. Under President Obama, our nation’s cyber security was placed under military control, so that civilian sites had no governmental watchdog or protection, while all effort focused on protecting the .mil and other security domains. Trump’s placement of military brass in what are normally high-level, civilian positions is more public, but possibly less dangerous.

Other actions follow, such as reducing the openness of government to free information flow.

Banning assembly is another common tactic. Consider the bevy of  anti-protest bills being considered by 18 states that make it harder to protest, create harsher penalties for arrested protestors, and in two cases, remove liability from drivers who accidentally hit protestors.

Procedural shortcuts such as governing through executive orders are another step.

Counter-intuitively, executive orders and Presidential memoranda were most used when partisanship in Congress was at its lowest point in the middle of the century, according to The American Presidency Project (cited by Kleinfeld). In recent administrations, Obama issued fewer than George W. Bush who issued fewer than Clinton who issued fewer than Reagan.

Update The House Rules Committee is allowing the Griffith amendment to move to the floor for debate and a vote.

On July 24, Congressman Morgan Griffith (R-VA), along with Congressmen Jim Jordan (R-OH), Mark Meadows (R-NC), and Scott Perry (R-PA), submitted to the Rules Committee an amendment to abolish the Budget Analysis Division of the Congressional Budget Office (CBO) and transfer its duties to the Office of the Director.  The amendment was made to the Make America Secure Appropriations Act of 2018, through the use of the Holman Rule.  A separate amendment filed by Rep. Mark Meadows (R-N.C.) would also eliminate the same division and specify that the CBO instead evaluate legislation “by facilitating and assimilating scoring data” compiled by four private think tanks — the Heritage Foundation, the American Enterprise Institute, the Brookings Institution, and the Urban Institute.

During a Monday appearance at the National Press Club, Rep. Mark Meadows (R-NC), chairman of the Freedom Caucus, said “There’s plenty of think tanks that are out there. And so we ought to take a score from Heritage, from AEI, from Brookings, from the Urban Institute and bring them together for a composite score that would represent a very wide swath of think tanks and their abilities. We think that’s a pragmatic way to use the private sector and yet let Congress depend on a score that is accurate.”

During the first week in January, House Republicans reinstated the Holman Rule, an arcane procedural rule that empowers any member of Congress to propose amending an appropriations bill to single out a government employee or cut a specific program. It was first enacted in 1876 and rescinded in 1983, and was reinstated in January on a temporary basis.

According to a report by Josh Gerstein of Politico,  U.S. District Court Judge Colleen Kollar-Kotelly denied a temporary restraining order and preliminary injunction the Electronic Privacy Information Center sought against the panel formally known as the Presidential Advisory Commission on Election Integrity. EPIC sought to force President Donald Trump’s controversial voter fraud commission (formally known as the Presidential Advisory Commission on Election Integrity) to conduct a privacy assessment before gathering data on millions of American voters.

The panel initially asked states to upload that data to a site hosted by the Defense Department, potentially implicating federal laws covering executive branch agencies. The panel is now having the information collected by the White House itself (see Trump voter commission to store data on White House computers under Pence staff direction), effectively avoiding the impact of those federal statutes.

In a 35-page opinion Monday, Kollar-Kotelly said the commission and a White House information technology office did not appear to qualify as federal agencies and therefore did not trigger the requirement for a privacy impact assessment: “Given the factual circumstances presently before the Court—which have changed substantially since this case was filed three weeks ago—Defendants’ collection of voter roll information does not currently involve agency action.”

The opinion states: “Defendants have represented that they are only collecting voter information that is already publicly available under the laws of the states where the information resides; and Defendants have clarified that such information, to the extent it is made public, will be de-identified. All of these representations were made to the
Court in sworn declarations, and needless to say, the Court expects that Defendants shall strictly abide by them.”

Kollar-Kotelly also noted that “to the extent that factual circumstances change – for example, of the de jure or de facto powers of the Commission expand beyond those of a purely advisory body – this determination may need to be revisited.”