President Trump in the Oval Office, August 27, 2018. (Kevin Lamarque/Reuters)

I’m getting to be a bit of an old dog to learn many new tricks, but maybe some day I’ll learn not to be flip when the situation calls for something more thoughtful.

This morning, I was interviewed by Fox News’s Bill Hemmer about what to expect from President Trump’s speech tonight and, in particular, whether the president could legitimately declare a national emergency in order to rationalize the reallocation of Defense Department funds for the construction on the southern border of a “wall” — or, at least, some kind of physical barrier (the semantics of which are of more interest to the Beltway’s posturing antagonists than they are to me — if I may be flip about it).


I don’t think the president should do this because it is bad policy (I’ll come to why); and I hope he won’t do it because it would be smarter to try to convince more of the public that he has a good case, which would put pressure on Congress to address the problem. But that said, I do not doubt that federal law empowers the president to declare a national emergency and reprogram funds to construct civil-defense projects the president deems essential to national defense. (See, e.g., Section 2293 of Title 33, U.S. Code.)

Speaking with one of the producers as commonly happens before these interviews, I glibly described as “stupid” this and other laws strewn through the federal code that authorize executive action on the president’s unilateral determination that action is required.


Bill asked me why I thought that. Obviously, I should have come up with a better description, even in a quick pre-interview chat. I was not suggesting that national emergencies and presidential determinations about whether emergencies actually exist are trifling matters.


What I regard as foolish and contradictory of our constitutional system is the existence of an array of laws that vest the president with apparently unreviewable power to take drastic executive action that is not only in the nature of legislation but that may override congressional law.

Because the president in the current instance is Trump, the commentariat is suddenly exercised, but this is a longstanding problem. Obama had his pen and phone, of course, and decided an emergency — namely, Congress’s refusal to do what he wanted — required an executive rewrite of immigration law. Meanwhile, although the Republican-controlled Congress did not want him to suspend Iran sanctions, the sanctions Congress had enacted authorized the president unilaterally to suspend them. Many in Congress do not like Trump’s imposition of tariffs, but, again, Congress has given the president carte blanche — and, as was the case with Iran sanctions, Congress lacks the votes to repeal the authority delegated to the executive.

To be clear, I do not believe all such laws are bad. Even in modern America, where Congress is often in session and could convene within a day if there were a real emergency, it is easy to imagine sudden crisis situations requiring swift, decisive presidential action. Nevertheless, it is Congress’s job to make law when we need law; the president should be executing Congress’s legislation, not pronouncing his own. The president should be coming to Congress asking for emergency authority, which would require convincing Congress that there actually was an emergency. The president should not presumptively be permitted to skip that step.



There may well be an emergency on the border. But there is a crisis of legitimacy in our governing framework. As I said to Bill Hemmer this morning, when Congress is not transferring its legislative authority to the president to issue directives or countermand existing law on the rationale (or pretext) of an emergency, it is delegating its legislative authority to the administrative state, which has even less democratic legitimacy than the president does (the president is at least accountable to voters, even if this does not justify executive law-making).

Under federal law (Section 1631 of Title 50, U.S. Code), when a president declares a national emergency, he may not do whatever he wants. He must specify provisions of law that enable him to take specified emergency actions. So the president’s emergency powers are cabined, at least theoretically, by congressional statutes — although these statutes tend to give sweeping powers and, significantly, to make the president’s judgment about whether there actually is an emergency determinative. There is usually no provision for judicial review (although that seems not much of a hindrance for judges where President Trump is concerned).


But here’s a paradox: If there is an emergency on the border, it is caused by Congress — a point we make in our editorial this evening. It is Congress that has enacted law calling for barriers on the border but has failed to fund it. It is Congress that has enticed illegal aliens to arrive as families, knowing they will not be turned away if the adults petition for asylum, no matter how frivolously. It is Congress that has punted to the courts on the issue of how long children may be detained, and then failed to fix a judicial stipulation that is patently unworkable. It is Congress that entices illegal aliens to sneak across the border or overstay their visas, knowing that illegal entry (or illegal presence in the United States) is not a felony and that they may petition for asylum at any time to attempt to defeat expulsion.


Consequently, if Trump were to declare a national emergency, he would be invoking powers delegated by Congress in order to deal with a crisis caused by Congress.


There is no doubt that statutory law vests presidents with broad emergency powers. That is why it was wrong for federal judges to attempt to gut Trump’s so-called travel ban. Regardless of one’s views of either the policy or the president, Congress — as the Supreme Court concluded in Trump v. Hawaii (2018) — has clearly empowered presidents to suspend and impose restrictions on alien entry based on the president’s unilateral judgment that such entry would be detrimental to U.S. interests.

It is one thing to acknowledge that such powers exist, and even to sympathize with presidents and judges who are left to grapple with problems — which are real, regardless of whether they are emergencies — because lawmakers seem to think their job is to agitate on cable TV rather than legislate on Capitol Hill. It is quite another thing, though, to approve of this way of governing. It is counter-constitutional.