President Trump speaks to reporters with Vice President Mike Pence as he arrives to address a closed Senate Republican policy lunch on Capitol Hill, January 9, 2019. (Jonathan Ernst/Reuters)

The prospect of Trump declaring a national emergency to fund construction of a border fence puts us in a constitutional twilight zone.

When the subject of the president’s potential declaration of a national emergency arose during our recording of The McCarthy Report on Wednesday, Rich Lowry rightly chuckled in mock amazement when I observed that there was a difference between what should happen and what will happen. He’s right — isn’t there always?

We were discussing the position ardently held by several smart commentators, not least our friend David French, that such a declaration would be illegal: the manufacture of an emergency in order to justify — or, if you prefer, as a pretext for — repurposing Defense Department funds for the construction of physical barriers (are we still calling it “the wall”?) along the southern border.


National Emergencies and Congress

As I hope I made clear in my post on Tuesday about executive legislating through the hocus-pocus of national emergency declarations, I am with David, Charlie Cooke, Jonah Goldberg, and the rest of my fellow editors on the “ought” question. In our constitutional system, Congress is supposed to do the legislating, which includes determining the conditions — emergency or otherwise — that call for legislation. Unfortunately, that fundamental “ought” question is not the one on the table today.

The presumption in our law, whether we agree with it or not, is that this power to declare emergencies and, in effect, legislate measures to deal with them has been delegated to the president by Congress in numerous statutes. With the rise of progressivism and the consequent expansion of executive power in the 20th century, this wayward practice became such a staple of federal law that Congress eventually enacted a regulatory scheme for it: the 1976 National Emergencies Act (codified in Chapter 34 of Title 50, U.S. Code). While the NEA was actually an attempt to rein in executive lawmaking, it explicitly endorsed it. As Rich and I discussed in the podcast, regardless of whether this is right, it is routine.


If I had my druthers, the whole concept would be revisited. Alas, that is a more fundamental question for another day. For now, Section 1621 authorizes the president to declare national emergencies and invoke any powers Congress has delegated by statute for such emergencies.


On that score, David has excerpted two relevant statutes, both of which apply when the president has declared a national emergency. In Section 2808 of the federal code’s regulation of the armed forces (Title 10), Congress enables the president to “undertake military construction projects, not otherwise authorized by law.” And in Section 2293 of the laws governing navigable waters (Title 33), Congress delegates to the president the authority to draw resources from the Army’s civil works program to construct “authorized civil works, military construction, and civil defense projects that are essential to the national defense.”


Who Gets to Decide?

It is hardly frivolous for the Trump administration to interpret these laws as authorizing the construction of border barriers during a presidentially declared national emergency. I take (and largely agree with) David’s assessment that, as objective matters, it is at least debatable whether the border crisis calls for military action, and whether construction of barriers is both authorized and essential. (“Debatable” is my mushy word; David is a strong no.) But I believe his analysis is flawed because the statutes do not make these objective matters — as in, matters suitable for judicial resolution after hearing from all sides. Congress has authorized the president to make this call (subject only to an obsolete congressional check, which I will come to shortly).

I have no doubt that, if the president tried to use eminent domain to seize land for barrier construction by the military, the property owners would have the right to challenge the seizure. It is not at all clear to me, though, that a court could legitimately review the president’s declaration of a national emergency (more on that, too, momentarily). And it would be downright presumptuous for a court — whose authority to act must be implied since it is nowhere spelled out in the statutes — to second-guess the commander-in-chief on whether a crisis required a military response, and on whether military measures ordered by the commander-in-chief were appropriate.



Here, for what it’s worth, I also part company with our otherwise unimpeachable editorial. As I said to Rich during the podcast, I believe it would be more controversial for a court to invalidate the military judgments of the president (which are plainly within his constitutional commander-in-chief powers) than to invalidate the president’s determination that a national emergency exists (a legislative determination that is only dubiously made by the executive). My colleagues are quite right that the aliens seeking entry are not an invading army, but rather Central American civilians who are delighted to be arrested (the beginning of a lunatic process that allows them to stay). Still, it would be very controversial for unelected judges, rather than Congress, to countermand the president’s judgment that a border confrontation with potentially thousands of aliens — armed or not — calls for a military response.

My colleagues point out that no one in the last century has thought of the Mexican border in military terms. That’s true, but the question is not how we historically think of the border; it is: In whom does the Constitution vest decisions about border security? Such decisions are the purview of the political branches accountable to the American people whose lives are at stake. They are not within the judicial ken. We must guard against the mainstream media tendency (echoed in parts of the judiciary) to treat the incumbent president like a species distinct from other presidents. I repeat what I’ve argued for two years: There is no “Jurisprudence of Trump.” Any foolish precedents for judicial supervision of executive power, including military authority, that are made during the Trump administration will apply to every future president — and to every future crisis, including some that undeniably call for a military response.

NEA’s Legislative Veto and Chadha


All that said, I want to get back to the main question. If we assume, arguendo, that it is constitutionally permissible for Congress to delegate to the president the decision whether a national emergency exists, is there any check on that determination? I believe the right answer is: only an act of Congress.

Now, understand, when I say the “right” answer, I do not necessarily mean the best answer policy-wise; I mean the best construction of existing law — regardless of whether we agree with that law. And I freely concede that what I think is the right answer would almost surely not end up being the final answer. The reality is that if Trump were to declare a national emergency, the courts would intervene, whether they should or not (and there are, as we’ll see, colorable arguments on both sides).

The reason the president’s determination should only be reversible by legislation stems from a combination of the NEA and a later ruling by the Supreme Court.

The NEA contains a proviso that was all the rage in the post-Watergate era, the legislative veto. Congress prescribed (in what’s codified as Section 1622) that the president’s declaration of a national emergency could be terminated by a joint resolution of Congress — i.e., a conclusion that no emergency existed, expressed by majorities of both the Senate and the House.

Congress did not need to do this. Lawmakers could have denied the president the power to declare emergencies. They could have made such declarations the subject of court challenge by any party who’d been damaged and thus had standing — i.e., they could have prescribed judicial review. Instead, they decided to keep their own check on the president. The presumption was that if the president exceeded his authority by bogusly declaring a national emergency, Congress could stop him by voting it down — without needing the president’s signature. Congress’s veto power would make it less likely that a president would spuriously declare a national emergency. No president wants to be slapped down by Congress.

I’d observe that if this procedure still existed, there would be little concern that President Trump would declare a national emergency. Congress would probably be able to muster a joint resolution to terminate the emergency: House Democrats, now a majority, would stick together; and, with Republicans nervous about the partial shutdown of the government, Democrats would probably be able to peel off enough GOP moderates to prevail in the Senate. Knowing this, Trump would be leery of declaring an emergency.

But this procedure is no longer available to Congress. The Supreme Court invalidated the legislative veto in INS v. Chadha (1983), seven years after the NEA.

The problem is that legislative vetoes are unconstitutional. Why? The explanation mirrors the reason why presidential lawmaking is unconstitutional: Such vetoes are legislative acts. To qualify as legislation under the Constitution, a congressional act must first pass both houses of Congress and then be signed by the president; legislation may only be enacted without executive approval if both houses, by two-thirds’ supermajorities, vote to override a presidential veto.

Chadha ushered in a constitutional distortion. In the NEA, Congress made the president’s unilateral authority to declare national emergencies contingent on Congress’s unilateral authority to terminate the emergency. The president’s NEA authority remains intact, but Chadha removes the contingency. There is no check on the president, even though Congress clearly intended that there be one.

To be sure, there are important differences between the Chadha case and what’s at issue today. Chadha did not involve the declaration of a national emergency. Congress had given the executive branch the authority to suspend deportation of aliens, subject to a legislative veto. Once Congress establishes a deportation process, however, the decision whether to carry out that process in particular cases is executive in nature (just like the decision whether to prosecute a criminal violation is a unilateral executive function). That is, Congress in Chadha was not vesting the president with legislative authority; if anything, Congress was improperly meddling in the president’s execution of immigration law.


In the border situation, by contrast, Congress has delegated to the president the power to declare that a national emergency requiring legislative action exists. This power belonged to Congress in the first place – unlike the innately executive power at issue in Chadha. It is thus understandable that Congress attached legislative strings to this delegation, even if the Supreme Court eventually cut the strings.

Constitutional Twilight Zone

To summarize, we are in a constitutional twilight zone: In most situations, Congress should not delegate to the president the unilateral power to declare national emergencies; but Congress cannot unilaterally reclaim this power because the Supreme Court has voided the legislative veto; and the courts do not have express authority to review the president’s declaration of a national emergency because Congress did not give it to the judiciary — Congress kept that authority for itself, but got burned by Chadha.

I continue to hope President Trump is just using the threat of an emergency declaration as a bargaining chip to pressure Democrats into a compromise. The threat has been effective. As our editorial and my post argue, there is a crisis at the southern border. It is largely caused by congressional abdication, and — regardless of whether President Trump declares an emergency and tries to build a section of barrier — the crisis cannot be addressed adequately absent legislation. By merely threatening to declare an emergency, the president highlights the crisis, which keeps pressure on congressional Democrats. The moment the president declared an emergency, the script would flip: The media narrative would be lawlessness in the White House, not peril at the border.

That said, it seems obvious that the courts would accept the challenges that would surely, instantly materialize after a presidential emergency declaration for the purpose of funding barrier construction. This would happen even if the judiciary were not brimming with Obama appointees hard-wired to block Trump (and to prioritize “migrant” rights, no matter who is president). Even though Congress did not provide for judicial review in the NEA, it would not be unreasonable for a court to opine that Congress intended that there be a check on the president’s power to declare emergencies, and that the judiciary should fill the gap left by the demise of the legislative veto.

All the same, it would be just as reasonable for a court to conclude that, because national-security matters are confined to the political branches, Congress intended the check on the president’s power to declare a national emergency to be legislative, not judicial. And no matter what a court might do, lawmakers are not elected to lay low in the tall grass — emerging only on Fox, CNN, and MSNBC to bleat about how bad things are.

Congress should be working now to address the new dynamic of attempted entry by families from Central America — providing for security, ensuring expeditious processing, expanding detention facilities, prescribing standards for conditions of confinement of children, etc. If the president declares an emergency, both houses of Congress should consider resolutions supporting or rejecting the declaration. A rejection would not have the binding effect of a veto, but it would undoubtedly influence the inevitable litigation, and it might communicate to the president the perils of going it alone in a constitutional system based on separation of powers.

Of course, I’m not holding my breath. Many congressional Democrats do not want to take an accountable vote that would put them on the wrong side of border security. Many congressional Republicans are content to have Trump do the heavy lifting and bear the political risks. Congress is apt to do what it usually does — nothing.

That’s why our system doesn’t work. Donald Trump is notoriously indifferent to presidential norms, but as a matter of sheer power grabbing, he has been markedly less imperious than was Barack Obama. Nevertheless, neither Obama nor Trump created the imperial presidency; the collapse of Congress has done that. Just ask any president or administrative agency: You don’t have to usurp Article I power; lawmakers will happily delegate it to you. It frees them up for more air time.