Even in the face of humiliating defeat, Donald Trump continues to successfully hack the media into saying what he wants them to say. His shutdown gambit didn’t work. Despite holding federal workers hostage for 35 days, Trump has emerged with no Wall and no leverage to get a Wall.

And so we’re onto the next authoritarian attempt to satisfy Trump’s vanity. The conventional wisdom is that there is no appetite for another government shutdown, and so Trump’s only way “out” is to declare a national emergency in order to side step Congress’s Constitutional authority to appropriate funds, and build his Wall by stealing money appropriated for other uses. People are only now realizing that the National Emergencies Act contemplates engorging the President with tyrannical powers, as we’re all terrified of what a malefactor like Donald Trump could do with such powers.

Well, we should be all terrified, but many people are not. Trump has successfully played the media into talking about Trump’s authority to declare a national emergency as if it’s just one tool among many to “break the stalemate.” Anybody with a working historical knowledge about THE DEATH OF REPUBLICS knows that strongmen taking on emergency powers when there is no “emergency” is a terminal cancer to representative self-government. Anybody who is from a country that had a democracy and lost it knows this is where things start to go irrevocably wrong. But America is a young country filled with uneducated and easily distracted people. This is the most dangerous thing Trump has proposed, BY FAR… and yet America just spent a weekend obsessing over a crazy man with a back tatt.

“Oh, but the courts will stop him,” say people with no legal training who think that laws are objective things. Maaaaaaybe the courts will stop him, but limiting the President’s authority under the NEA is a largely untested proposition and Trump has been stacking the courts with sycophants. Moderate Republicans, who have done nothing to arrest the right’s Anschluss of the judiciary, are the ones who hope the courts will still be there to stop Trump from destroying the concept of separation of powers. It’s far from a slam dunk to say that Republican controlled courts will ultimately stand up to Donald Trump.

Don’t get me wrong, I think the President’s use of the National Emergencies Act to build his Wall would be clearly illegal. But before we go to the courts we have to go to the actual statute. Our first best line of defense against the extravagance of the NEA in evil hands is written into the NEA. Before people talk about the courts, they should talk about section 5 of the Act, which allows Congress to terminate any national emergency the President declares:

(a) Termination methods Any national emergency declared by the President in accordance with this subchapter shall terminate if—

(1) there is enacted into law a joint resolution terminating the emergency; or

(2) the President issues a proclamation terminating the emergency.

Any national emergency declared by the President shall be terminated on the date specified in any joint resolution referred to in clause (1) or on the date specified in a proclamation by the President terminating the emergency as provided in clause (2) of this subsection, whichever date is earlier, and any powers or authorities exercised by reason of said emergency shall cease to be exercised after such specified date, except that such termination shall not affect—

(A) any action taken or proceeding pending not finally concluded or determined on such date;

(B) any action or proceeding based on any act committed prior to such date; or

(C) any rights or duties that matured or penalties that were incurred prior to such date.

(b) Termination review of national emergencies by Congress

Not later than six months after a national emergency is declared, and not later than the end of each six-month period thereafter that such emergency continues, each House of Congress shall meet to consider a vote on a joint resolution to determine whether that emergency shall be terminated. (c) Joint resolution; referral to Congressional committees; conference committee in event of disagreement; filing of report; termination procedure deemed part of rules of House and Senate

(1) A joint resolution to terminate a national emergency declared by the President shall be referred to the appropriate committee of the House of Representatives or the Senate, as the case may be. One such joint resolution shall be reported out by such committee together with its recommendations within fifteen calendar days after the day on which such resolution is referred to such committee, unless such House shall otherwise determine by the yeas and nays.

(2) Any joint resolution so reported shall become the pending business of the House in question (in the case of the Senate the time for debate shall be equally divided between the proponents and the opponents) and shall be voted on within three calendar days after the day on which such resolution is reported, unless such House shall otherwise determine by yeas and nays.

(3) Such a joint resolution passed by one House shall be referred to the appropriate committee of the other House and shall be reported out by such committee together with its recommendations within fifteen calendar days after the day on which such resolution is referred to such committee and shall thereupon become the pending business of such House and shall be voted upon within three calendar days after the day on which such resolution is reported, unless such House shall otherwise determine by yeas and nays.

(4) In the case of any disagreement between the two Houses of Congress with respect to a joint resolution passed by both Houses, conferees shall be promptly appointed and the committee of conference shall make and file a report with respect to such joint resolution within six calendar days after the day on which managers on the part of the Senate and the House have been appointed. Notwithstanding any rule in either House concerning the printing of conference reports or concerning any delay in the consideration of such reports, such report shall be acted on by both Houses not later than six calendar days after the conference report is filed in the House in which such report is filed first. In the event the conferees are unable to agree within forty-eight hours, they shall report back to their respective Houses in disagreement.

(5) Paragraphs (1)–(4) of this subsection, subsection (b) of this section, and section 1651(b) of this title are enacted by Congress—

(A) as an exercise of the rulemaking power of the Senate and the House of Representatives, respectively, and as such they are deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in the House in the case of resolutions described by this subsection; and they supersede other rules only to the extent that they are inconsistent therewith; and

(B) with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner, and to the same extent as in the case of any other rule of that House.

The House can vote to end a national emergency. If they do, the Senate MUST vote. If the House and Senate disagree, there MUST be a conference committee and then both Houses MUST vote on that.

We don’t think of Congress having the power to end a national emergency, because there are 31 active national emergencies currently ongoing that Congress doesn’t seem to give a hoot about. One of the stories of late republics, including this one, is a slow abdication by the legislature of functions it is supposed to carry out in favor of letting the executive do things by fiat.

But this proposed national emergency Congress will care about. It has the authority to terminate it before one slat is erected. In the Senate, Mitch McConnell might be inclined to let Trump do whatever he wants so he can get in some more judges before it all comes crashing down, but we know that there are Republicans out there who are just as afraid of President Kamala Ocasio-O’Rourke acting under national emergency powers as they are afraid of President Trump. Congress could stop it, hopefully would stop it, and people who are talking about a national emergency as if it would allow Trump to start construction immediately are just selling you the administration’s spin.

If Congress refuses to act — and in fairness I no longer believe that there are laws or norms that exist that Mitch McConnell isn’t willing to break — then we would look to the courts. Again, challenging the President’s ability to steal funds under the NEA would be a appellate crapshoot based on the scant precedent over this issue. But there is one enormous case that suggests the President cannot just impress workers and soldiers to do a thing that Congress has explicitly prevented him from doing.

That case is Youngstown v. Sawyer. It’s the case where Truman tried to nationalize the steel mills because steelworkers were striking. The key opinion in this decision limiting executive power is Justice Robert Jackson’s famous concurrence:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate…

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain…

3. 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. Courts can sustain exclusive presidential control in such a case only by disabling [p638] the Congress from acting upon the subject.

It’s famous because it’s become the de-facto test of executive power. But it’s also extremely relevant because Chief Justice John Roberts is a big fan of Jackson and referenced his opinion here directly during his confirmation hearings.

Donald Trump cannot declare a national emergency to help him build a Wall. Congress has the power to overturn him by statute. The Supreme Court likely has five votes to prevent this overreach of executive authority. STOP SAYING TRUMP CAN DO THIS THING THAT HE CANNOT DO!

Because, the thing about strongmen is that sometimes they do things that they can’t do anyway. And if they get away with it there is no going back to the normal rule of law.

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.