It’s an Emergency
Presidents declaring National Emergencies is nothing new for the United States, and even for President Trump. His declaration last Friday was the fourth time he has signed a National Emergency proclamation.
The National Emergency Act of 1976 was written to codify and restrict the emergency powers a President could claim. This was in response to the Vietnam era, when Presidential power seemed to escalate out of control: Congress wanted to restrict executive actions, but recognized that there were situations where the President might need to claim powers and move quickly (9-11 being a good example.)
The normal process of creating law starts with the Congress, developing written legislation and passing it by majority vote. The legislation is then sent to the President where he can sign it into law, reject it by veto, or do nothing leaving the legislation to become law in ten days.
The National Emergency Act created a “negative authority” for Congress. The President can declare an Emergency, essentially writing legislation. In response the House and the Senate can pass a resolution against the President’s actions by majority vote. Like any piece of legislation, the President can veto the resolution, and should the both Houses of Congress vote by two-thirds majority, they can override his veto, and end his emergency.
Twenty-five of the thirty-two Emergencies in effect have been declared as a way of placing economic restrictions on individuals or countries. One recent example was the Emergency declared by President Obama against certain individuals in Russia in response to the Russian takeover of Crimea from Ukraine (the sanctions that triggered the Russian actions in the 2016 elections.) This allowed the President to react quickly and specifically to a foreign event, using America’s financial power to respond to international crises.
One National Emergency was declared to fill a void when the 1979 Export Act expired, and six dealt with war or warlike crises; the Iran hostage crisis, nuclear weapons spreading, and the 9-11 Terrorist attacks.
Leaving us with Friday’s rambling declaration of an emergency on the border, one that the President himself admitted (in the same speech) “he didn’t need to do” and was only necessary because he wanted to “hurry” things along. Unlike previous acts, this “emergency” was declared as a RESULT of Congressional action – the negotiated agreement to keep the government open, and deal with the border security.
These are both important points to consider as the future of this “Emergency” unfolds. As Radical Republican Congressman Jim Jordan stated, Congress is likely to pass a resolution against the President’s act, one that Trump surely will veto. And with the 67 Senate and 288 House votes to gain an override is unlikely, this emergency act is headed to the Courts.
The issues will be: does this meet the 1976 definition of emergency, does this subvert the Congressional power to control spending (the “power of the purse”,) and is this an unconstitutional extension of executive power to subvert the stated “will” of the Congress, the act to keep the government open? While it was very strange to listen to President Trump “rap” his expectations of judicial action, he wasn’t necessarily wrong.
It is likely that the Emergency Declaration will be found unconstitutional on the District and Appellate levels, and we end up in the Supreme Court. The five Federalist Society members of the Court will be faced with a difficult decision. The Society is dedicated to “originalism,” to the strict intent of the original authors of the Constitution. It is clear that the Founders would find this extension of Presidential authority to be abhorrent to their carefully balanced division of powers. However, the Justices will also look at the language of the 1976 Act, and find that the President’s actions may well fit the parameters of the law.
Will Justices Kavanaugh and Gorsuch stand with the President that appointed them? Will Justices Thomas and Alito follow the judicial philosophy of original intent they so believe in, or follow their conservative political views? And, will Chief Justice Roberts, himself a son of the Federalist Society, continue to serve as the ultimate and remaining check on the President, or succumb to the massive political pressure?
Or will the Court take a different tack; delaying action on the “border emergency” through temporary injunctions, then ruling on technicalities that don’t address the core issues of the case?
The real point is none of that matters to the President. The Emergency Declaration was his only way out of the border situation he created. He couldn’t close the government down again, and he couldn’t (at least he wouldn’t) accept the “loss” of the Congressional compromise. So he can declare a “win” by declaring the Emergency, knowing that it will be tied up in the Courts for years, and won’t require any real action.
That’s a win-win for the President, and maybe for the country as well. The Congressional border compromise will help solve a lot of the real problems at the border, and even begins to deal with the source of the migration, conditions in the Central American countries.
For the high price of lawyers able to practice in the Federal Courts, we get to put the “wall” problem aside and deal with the real emergency of today: do we have a President held under the sway of a foreign power?
National Emergencies Currently in Effect
1979 – Carter, Iran Hostage Crisis
1994 – Clinton, Weapons of Mass Destruction Proliferation
1995 – Clinton, Economic Sanctions against Middle East Terrorists
1995 – Clinton, Transactions on Iranian Oil
1995 – Clinton, Transactions on Colombian Narcotics Trafficking
1996 – Clinton, Movements of Vessels and Planes near Cuba
1997 – Clinton, Sanctions on Sudan Trade
2001 – GW Bush, Sanctions on Albanians regarding Macedonia
2001 – GW Bush, Export Controls replacing 1979 Export Act
2001 – GW Bush, Terrorists and 9/11
2001 – GW Bush, Terrorists and 9/11
2003 – GW Bush, Sanctions on Zimbabwe
2003 – GW Bush, Sanctions on Iraq
2004 – GW Bush, Sanctions on Syria
2006 – GW Bush, Sanctions on Belarus
2006 – GW Bush, Sanctions on Congo
2006 – GW Bush, Sanctions on Lebanon
2008 – GW Bush, Sanction on North Korea (nuclear weapons)
2010 – Obama, Sanctions on Somalia
2011 – Obama, Sanctions on Libya
2011 – Obama, Sanction on Trans-National Criminals
2012 – Obama, Sanctions on Yemen
2014 – Obama, Sanctions on Russians regarding Ukraine
2014 – Obama, Sanctions on South Sudan
2014 – Obama, Sanctions on Central African Republic
2015 – Obama, Sanctions on Venezuela
2015 – Obama, Sanctions on Chinese (Cyber Attacks)
2015 – Obama, Sanctions on Burundi
2017 – Trump, Sanctions on Myanmar regarding Rohingya Muslims
2018 – Trump, Sanctions on Russia – Election interference
2018 – Trump, Sanctions on Nicaragua
2019 – Trump, Security on the Southern Border
