'Emergency' Does Not Create Constitutional Power
“Emergency does not create power.” That was the definitive constitutional pronouncement of the United States Supreme Court in 1934. The House of Representatives voted its agreement Tuesday, passing a formal disapproval of President Trump’s emergency declaration. The Senate will vote on the unprecedented executive power grab in the coming weeks.
Into a long-standing constitutional debate over the limits of executive power and the separation of powers stumbles President Donald J. Trump.
Brutally beaten in both the polls and the halls of Congress for his government shutdown over border wall funding, President Trump made good on his threat to declare that a state of “national emergency” exists at America’s southern border.
"We're talking about an invasion of our country with drugs, with human traffickers, with all types of criminals and gangs," he explained during his Rose Garden announcement.
Through his “national emergency” declaration, the president proposes to re-direct $6.6 Billion from the Department of Treasury and the Pentagon to fund new border wall construction.
This money would be in addition to the $1.375 Billion congressional appropriators approved for 55 miles of new border “barriers” as part of the deal to avert yet another bruising government shutdown.
In all, the president seeks to spend nearly $8 Billion on Wall construction.
Setting aside the widely discredited merits of his “national emergency” rationale, Trump’s pathological aversion to suffering defeat in the eyes of his base and right-wing media commentators has, once again, raised fundamental constitutional and Rule of Law questions.
What constitutes a “national emergency”? What are the criteria for declaring a “national emergency”? What extraordinary powers does a president hold in the face of a “national emergency”? And, finally, to what extent is a presidential declaration of a “national emergency” judicially reviewable? No doubt, these questions will be considered in the legal challenges which predictably followed the president’s declaration.
But, if these issues form the heart of the legal debate, Trump has the upper hand given presidential discretion to determine what constitutes a “national emergency” under the National Emergencies Act.
Instead, the challengers must force Trump to defend his unconstitutional power grab.
The president’s constitutional problem is two-fold. First, the president’s “national emergency” declaration is a thinly-veiled override of the expressed will of Congress relative to border wall funding. Tuesday’s vote stands as a rebuke to this power grab.
Troublesome indeed is the fact the president signed the bi-partisan spending bill which set the border ‘barrier’ funding amount at $1.375 Billion. Trump did not veto the bill, as was his constitutional right. As such, he gave his tacit approval to the spending level as expressed within the bill.
Second, and more fundamentally, Article I, Section 8 of the Constitution expressly grants Congress, not the president, the power to “provide for the common Defence (sic) and general Welfare of the United States.”
The security of America’s borders is most definitively part of the common defense and/or the general welfare of the United States. Therefore, it is for Congress to appropriate the funds necessary to accomplish its constitutional charge, not the president.
In 1952, the Supreme Court decided the landmark case of Youngstown Sheet & Tube Co. v. Sawyer. Faced with a steel strike during the Korean War, President Harry Truman declared a national emergency in an effort to take control of the steel industry to protect the war effort.
In overturning President Truman’s attempt to govern via emergency declaration, Justice Jackson’s concurring analysis will prove most difficult for President Trump to overcome. “When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”
Here, the Constitution expressly reserves the decision on border wall funding to Congress, and Congress clearly exercised its authority.
President Trump will nonetheless assert his “national emergency” declaration is authorized under the National Emergencies Act, and as such, expresses a discretionary presidential judgment that creates a non-justiciable “political question.”
Appropriately, federal courts are loath to engage in political or policy questions presented as legal controversy. But that is not what is presented here.
Instead, the President of the United States has violated Article I, Section 8 of the Constitution in a blatant attempt to usurp Congressional power.
Of all the affronts to presidential norms and the Rule of Law for which President Trump bears responsibility, his declaration of a bogus and politically motived “national emergency” is perhaps his greatest assault yet on the Constitution. It must be stopped.
Chris Gagin is a licensed Ohio attorney and director of Defending Democracy Together.
