On Tuesday, March 26 the House fell short of the two-thirds majority needed to override President Trumps veto of legislation that would have terminated his national emergency declaration pertaining to the southwestern border, assuring that his effort to build a border wall will go forward.
No matter where one comes down on the immigration issue, anyone holding loyalty to our written Constitution should decry the National Emergencies Act itself.
President Trump did not concoct the ability to declare an emergency and thus assume more power. He specifically relied on Sections 201 and 301 of the National Emergencies Act, in which Congress back in 1976 granted to the president the authority to declare an emergency and to invoke “special or extraordinary power[s].”
A careful study of Article II of the Constitution, which sets forth the president’s authority, mentions nothing about special or extraordinary powers outside of those enumerated in the Constitution itself Similarly, Article I, which deals with congressional authority, does not allow Congress to delegate power to the president, nor does it grant Congress (or any other branch) special or extraordinary powers outside of those powers specifically enumerated.
“The powers of the federal government,” James Madison explained in the Virginia ratifying convention, “are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction.”
If we discover that the president or Congress needs a power outside the Constitution, an amendment is the only allowable course of action. “Had the power of making treaties, for example, been omitted, however necessary it might have been,” Madison explained during the controversy over establishing a national Bank of the United States, “the defect could only have been lamented, or supplied by an amendment of the Constitution.”
Rather than go back to first principles and acknowledge the flaw in the idea of a National Emergencies Act, critics are blaming the Supreme Court for its opinion in INS v. Chadha (1983), in which the Court held that legislative vetoes are unconstitutional. Under the National Emergencies Act as originally structured, Congress could block implementation of a presidential declaration of emergency with simple majority votes in each house. These votes were not subject to a presidential veto.
But Chadha requires all such legislative actions/vetoes be submitted to the president under the Constitution’s Presentment Clause (Article I, Section 7, Clauses 2 and 3), which then gives the president an opportunity to use his constitutional veto authority. Congress can only override his veto with a two-thirds vote in both houses.
Without Chadha a congressional resolution would have been sufficient to stop construction of the border wall.
The wall, however, should be seen as merely an ancillary issue to a greater problem. According to the Brennan Center for Justice, Congress has granted the president emergency powers in 123 statutory provisions. Using a mere declaration, the president can shut down citizens’ electronic communications, freeze their bank accounts and take a host of other actions.
“If Congress is troubled by recent emergency declarations made pursuant to the National Emergencies Act,” Senator Mike Lee (R-Utah) observed, “they only have themselves to blame.” Lee is correct.
The National Emergencies Act is a creature alien to our constitutional order. Through it and other statutes, Congress has blessed the use of powers incongruent with our fundamental law. If some sort of emergency power is needed (a dubious proposition in my opinion), Congress should follow the advice of James Madison and submit a constitutional amendment to the states for consideration. This would allow a nationwide debate on the merits or demerits of such a proposal.
While Congress seeks to cast Trump as a danger to republican government and complains about the Supreme Court striking the legislative veto in Chadha, it would do better to look in the mirror and accept the blame for allowing the National Emergencies Act to stay on the books for more than four decades. It is past time to do away with this dangerous and extra-constitutional Act.