How is everyone coping with the national emergency? No, President Trump has not yet followed through on his threat to get funding for a border wall by invoking special provisions of obscure military construction laws.
This is just one of 31 presidentially declared national emergencies currently in force, the oldest of which President Jimmy Carter decreed in 1979, to enable the freezing of Iranian assets during the hostage crisis.
Plainly, if Trump evades Congress’s refusal to fund a border wall by declaring a national emergency at the border, thus freeing up otherwise committed military funds, it would not be the first time a president took advantage of the inherent elasticity of the term.
This is no accident but the foreseeable result of numerous statutes in which Congress has delegated ostensibly exceptional lawmaking power to the executive branch.
These provisions allow presidential emergency rule in certain circumstances — situationally, because the U.S. Constitution, unlike those of other countries, allows no general state of emergency. The laws usefully enable the federal government to respond to crises quickly and decisively, natural disasters and epidemics being the classic examples.
Yet they may also undermine truth in policymaking and the separation of powers itself, even in good causes.
Bush sanctioned Belarus’s dictatorship under the International Emergency Economic Powers Act of 1977, the main vehicle by which presidents impose economic punishment on dictators, terrorists and other international bad actors.
The terms of the statute require the president to find that wrongdoing abroad is not simply repugnant and worthy of a strong American response, as the destruction of democracy in Belarus — and in other targets of U.S. sanctions, such as Venezuela — certainly was.
The president must also proclaim, often less plausibly, an “unusual and extraordinary threat . . . to the national security and foreign policy of the United States.”
The International Emergency Economic Powers Act is far from the only statute that shifts legislative power to the executive branch on the subjective basis of what the latter considers, or claims to consider, an emergency.
The Federal Employees Pay Comparability Act of 1990 allows the president to override otherwise automatic raises “because of national emergency or serious economic conditions affecting the general welfare” — a power presidents have regularly invoked in both good times and bad.
Section 232 of the Trade Expansion Act permits the president to impose tariffs on goods whose importation would “threaten to impair the national security.”
The section requires a fact-finding process first, to be sure, but that’s easily manipulable for protectionist purposes, which is why Trump’s Commerce Department recommended tariffs on steel imports from Costa Rica, a tiny Central American country that does not even have an army.
Once delegated, an emergency power is not easily checked. In 1976, Congress passed the National Emergencies Act to address the fact that previous Congresses had handed the executive branch “enough authority to rule the country without reference to normal constitutional process,” as a committee report rather ominously put it.
The act created no substantive definition of “emergency.” Its key provision was a one-year limit on any declared emergency unless the president publicly renewed it, subject to override by a simple majority of both houses of Congress.
However, the Supreme Court struck down such “legislative vetoes” in 1983. Now, the only way Congress can terminate a national emergency is to pass a statute — subject to presidential veto.
Except in very rare cases, therefore, once a national emergency starts, only the president can end it.
On the books for more than a decade, Bush’s sanction order on Belarus is still richly deserved by that country’s dictator, Alexander Lukashenko. It is also, for all intents and purposes, a law that Congress did not make and cannot realistically unmake.
Could the federal courts impose limits on emergency powers, as many who worry about Trump’s possible border emergency hope? Courts are traditionally reluctant to second-guess security-related presidential determinations. Trump might stretch the emergency provisions of existing military construction laws, but at least they’re laws, and presidents usually enjoy a presumption of legality when they act pursuant to statute.
Certainly courts would have to think long and hard before granting any plaintiff standing to claim that the United States faces no “real” emergency, lest they set a precedent that the likes of Lukashenko might exploit.
Only Congress can reclaim the emergency powers it has granted the president, assuming, of course, that lawmakers want the responsibility back, too. And of course, any such effort would be subject to a presidential veto.
This does not quite seem like the kind of government the Founders envisioned. But it is the one we have.