The recent lawsuit, Nicholas Rakowsky Nikitovitch v. Trump, filed in response to the current Presidential Alert System, makes a compelling argument against the constitutionality of this new use of the IPAWS (Integrated National Public Warning System). The Presidential Alert System is different from other IPAWS operations like Amber alerts or weather warnings in that one cannot opt out of receiving the messages on their smartphone; it therefore gives the president total control over the people’s cell phones until the message has been opened and acknowledged by the user. Nicholas Rakowsky Nikitovitch v. Trump is clear and well-evidenced in its assertion that this system violates the first and fourth amendment as well as a person’s right to privacy. A significant amount of precedent exists to support the idea. For example, Supreme Court cases, Kovacs v Cooper and Martin v Struthers, stipulate that government compelled listening violates the first amendment. The Trump Administration’s intrusive messaging also violates a person’s right to privacy — a right that has been consistently threatened by government expansion in the name of public safety. The fourth amendment protects one from unlawful search and seizure; the case argues that this hijacking of cellular devices constitutes seizure. The attempt to create a national Presidential Alert System out of IPAWS is yet another bad omen from the Trump administration. Trump desperately wants the absolute power that comes from dictatorship. This is a power that does not mesh with the core principles of the presidency and is certainly not our democracy.
Besides the blatant unconstitutionality of the federal government using IPAWS, the unthinkably huge powers granted by the policy — as well as the policy’s vague language — are also concerning. Since the founding of the United States, the presidency has changed drastically. In the past decades, the executive branch and the office of president have gained significant prestige and power. During any other presidency, the use of IPAWS may not be as bothersome, but with someone as erratic and demagogic as Trump in office, the horror of such centralized power becomes apparent. The U.S. constitution created a federal government with shared and limited powers, and while an expanded government can do good in the hands of morally upright people, it can also do very bad things in the hands of unfit people. American democracy, with its current electoral system, cannot be trusted to always elect level-headed commanders-in-chief. It may be tempting to turn a blind eye to such violations of the constitution under more favorable administrations, but having an office holder whose beliefs are so clearly despotic reminds one of why limitations on the power of each branch were established in the first place.
The public perception of the presidency as the center of power in the government has allowed the executive branch to gain massive amounts of leverage. One would think that the judiciary and legislative branches would not let an overreach by the executive branch go unchecked, but when the public unwittingly concedes to this consolidation of power, so too will the other branches. This was seen with the passage of the Patriot Act after 9/11. Massive expansion of presidential and governmental power was allowed because of public fear and pressure following the terrorist attack. The same administration under which the Patriot Act was passed also issued executive order No. 13407, which established a public alert and warning system. Bush’s executive order was the precursor to the law that allowed for expansion of the IPAWS into unconstitutional territory.
This pattern of executive overstepping and legislative concession is a slippery slope toward turning this presidency into the totalitarian office that Trump and his allies seemingly desire. Trump has consistently praised dictators of other nations and condemned the democratic leaders that should be allies of the U.S. Trump desires the unchecked powers of a despot, and this aspiration is yet another threat to the separation of powers vital to protection from governmental tyranny.
For a long time the presidency has been expanding, but with pragmatic and sober leaders like Barack Obama filling the office, the public never really considered potential seizures of power. The writers of the constitution realized that the nature of man is not wholly good and that the structure of the government itself must actively combat the inherently negative and undemocratic aspects of human nature. The Federalist Papers have long been an authority on the interpretation of the Constitution. Federalist Paper 51 explains the need for a separation of powers: “If men were angels, no government would be necessary … In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself … experience has taught mankind the necessity of auxiliary precautions.” Competition between equal branches maintains a healthy government because it uses the imperfect natures that make up each branch against each other.
The current great malaise of our democracy is thus the general perception of the supremacy of the presidency. Such a weakness makes the lawsuit in question particularly important because not only does the Presidential Alert System infringe upon the rights of the populace, it also allows the Trump administration to further its totalitarian agenda by advancing the degradation of the public perception of equal branches of government. If the executive branch can access and control every phone in the nation, how can it not be declared supreme? The attempt to create a mandatory Presidential Alert System is antithetical to the core principles of U.S. democracy and represents a dangerous surrender to the fascist ideals that Trump ascribes to.
