A Legal Back Door
The President of the United States has declared an emergency on the Southern border, and is attempting to transfer funds, already “encumbered” by Congress for other projects, to build a border wall. His use of “emergency” is based on the National Emergency Act of 1976 (signed into law by President Gerald Ford on September 14th, my twentieth birthday, while I was very busy working to get his opponent Jimmy Carter, elected President.)
The “emergency” declaration gives the President the power to invoke a multitude of emergency powers found in other legislation. The “emergency” powers continue until: Congress enacts a joint resolution to end it; or the President issues a proclamation ending it; or it is not renewed at the end of a calendar year by the President.
The term “emergency” was not defined in the Act. It was assumed by everyone that there would either be an agreement that there was an emergency, or that the Congress could exercise their power to end it. The 1976 Law stated that Congress could end the “emergency” with a majority vote of both the House and the Senate for a joint resolution.
This gave the power to end the “emergency” to a simple majority of the House and Senate, and was not subject to Presidential signature or veto like normal “laws.” But in 1983, the US Supreme Court ruled that this law, and other laws that allowed Congress to avoid the veto, was unconstitutional. For Congress to terminate a Presidentially declared emergency, it would require the passage of the joint resolution, and, if the President vetoed it, a two-thirds override of each House to end it.
So what was originally a means of controlling the power of the President by restricting and controlling the ability to declare emergencies, ended up giving the President even greater unchecked authority. This was exactly the opposite of what the post-Watergate Congress intended, and passed a great deal of “legislative” authority over to the President.
Friday, the Democrats in the House of Representatives introduced the resolution to stop the Trump Emergency. It will go to a vote on Tuesday, and likely will pass the House. It will then be voted on by the Senate, where, despite a Republican majority, it still has a reasonable chance of passage. Many Republican Senators see the emergency declaration as an overreach in Presidential power, and are philosophically opposed. How many of those will act on their philosophy, rather than their fear of a Presidential tweet attack, remains to be seen, but it would only take four to do it.
But the Resolution would then go to the President, who obviously would veto it. And while there are plenty of Democrats and some Republicans against the emergency, it is unlikely that there are 288 votes in the House and 67 votes in the Senate to override the veto.
The battle will then move into the courts, and ultimately to the US Supreme Court. While the merits of the argument will be based on the definition of “emergency,” there is a judicial back door that Chief Justice Roberts and the conservatives on the Court could use.
John Marshall was the third Chief Justice to serve, but he was the most influential in gaining the power to make the Court a co-equal branch of government. His most famous case, demonstrating the power of the Court, was Marbury v Madison.
It was the Presidential election of 1800. The Federalists, represented by President John Adams, were defeated by the Democratic-Republicans led by Vice President Thomas Jefferson. At that time in American government, the election was held in November, but the new President didn’t take office until March. In that long lame-duck period, Adams appointed as many Federalists as he could to judgeships and other offices, trying to “stack” the government. For those who remember Government class, these were the “midnight judges.”
A few of the appointees failed to have their documents delivered prior to the new Jefferson administration taking over. Jefferson’s Secretary of State, James Madison, refused to deliver a left over to Federalist William Marbury, who was to be a magistrate for the District of Columbia. Marbury sued directly to the Supreme Court citing authority granted by Congress through the Judicial Act of 1791, demanding the Court require Madison to deliver.
Marshall, himself a late appointee by Adams, agreed that Madison should deliver the document. However, the Constitution created the Supreme Court as a co-equal branch to the Congress and President, as such, the Congress could not determine or expand Court jurisdiction. If they could give it, they could take it away, making the Court subservient to Congressional legislation. Marshall and the Court declared that the Judicial Act of 1791 was unconstitutional.
Marshall got the opportunity to chastise Madison, without giving Madison the opportunity to object. At the same time, he founded the principle of judicial review, declaring a Congressional law unconstitutional (and getting a shot at the new Democratic-Republican legislature as well.) Marbury did not get his appointment, but the Supreme Court gained an equal footing among the branches of government.
Perhaps Chief Justice Roberts could take a page from the Marshall playbook. The Supreme Court has a majority of, ironically, “Federalists,” supposedly dedicated to the original interpretation of the Constitution. It is an easy argument for them to make, that the founding fathers would not have wanted Congress to give over these kind of “emergency” powers to the executive, authoritarian type powers that the authors of the Constitution were most concerned about.
Roberts should recognize that not only has the original intent of the 1976 law been lost, but the original intent of the founders in separating legislative power from the executive lost as well. The National Emergency Act should be declared wholly unconstitutional. It gives the Republican/Federalist Society majority of the Court the opportunity to take their “shot” at a Democratic House of Representatives, while still controlling the growing power of the Presidency. It’s a win-win for them, and a legal backdoor out of a Trumpian government of unchecked executive power.
