How Congress could curb Trump’s abuse of powers if he declares a fake emergency to build a border wall
If President Donald Trump declares a national emergency to fund some portion of a wall along the U.S.-Mexico border without congressional authorization, what would happen next?
Would the courts step in? What is Congress’ role?
As I explain in my book “Emergency Presidential Power,” presidents generally claim emergency power two ways: through inherent or implied authority under the U.S. Constitution or under statutory authority granted by Congress.
Relying on the Constitution as a basis for emergency power is controversial, and less likely to stand up to meaningful congressional or judicial review. The U.S. Constitution says nothing specific about presidential emergency power: Presidents can only claim such authority is implied or inherent.
The emergency powers the Constitution does describe are actually assigned to Congress. Congress has delegated some emergency powers to the president through statutes, including the National Emergencies Act. But
Congress retains the power to reject a president’s declaration of a national emergency.
If President Trump does declare an emergency, the question is: Will Congress use the power available to it, or will it play the role of passive spectator?
Gaining congressional approval
Since presidents lack any specific constitutional emergency power, they often find it necessary to gain congressional authorization. For instance, at the start of the Civil War, with Congress out of session, President Abraham Lincoln suspended habeas corpus and took other unilateral actions. He later sought and gained retroactive approval from Congressfor these actions.
This precedent of gaining congressional approval was put to the test nearly 100 years later. In 1952, President Harry Truman claimed emergency power to take control of steel factories during the Korean War in response to a labor strike. He invoked a “very great inherent power to meet great national emergencies.” Congress took no specific action to approve or disapprove, though a pre-existing statute on the books weighed against Truman.
When factory owners sued the administration, the Supreme Court, by a 6-3 vote, ruled against Truman in the famous Youngstown Sheet decision. Justice Robert H. Jackson’s concurring opinion in that case has been especially influential and is often cited by legal scholars and judges. He outlined a three-part test to be used as a starting point in determining when presidential action is constitutionally permissible.
Under Jackson’s test, presidents are on the strongest possible footing when acting with congressional approval. In this case, Jackson said, Truman’s position was weak since he was taking action that did not comply with the relevant legislative framework. In Jackson’s view, Truman’s reliance on inherent emergency power under the Constitution would dangerously concentrate power in the president’s hands, something the framers would not have wanted.
Congress’s role
Jackson’s opinion in Youngstown suggested that emergency power could be defined by Congress in statutes.
Congress took up that suggestion with the National Emergencies Act of 1976. Though the act was designed to set limits on presidential power to declare national emergencies of indefinite length, it has ended up providing a largely unregulated way for presidents to take unilateral action. Congress has failed to fulfill its responsibilities under the law.
The National Emergencies Act permits the president to declare a national emergency without congressional approval, triggering specific statutory powers that the president can use. For instance, presidents have used this law to impose economic sanctions against terrorists after 9/11 or regulate foreign ships in U.S. waters. Thirty-one emergency declarations are currently in effect under the statute.
Congress can vote at any time to terminate a state of emergency, and is required by the statute to meet every six months while an emergency is in effect to consider whether it should continue. However, it has never voted on an emergency declared by a president or held meetings as required by the statute.
Perhaps most importantly for Trump, the National Emergencies Act provides no criteria for deciding whether a national emergency exists. We know from history that presidents can contrive emergencies as a pretext for action.
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