True to his word, President Trump declared a national emergency at the southern border on Friday, a move that will allow him to divert federal funds from the Defense Department toward building a border wall.
During his news conference Friday, he anticipated a flood of litigation against the Justice Department.
“Sadly, we’ll be sued, and, sadly, it will go through a process,” Trump said, predicting that lower courts (particularly the often-liberal Ninth Circuit) would rule against him. “Then we’ll end up in the Supreme Court and hopefully we’ll get a fair shake.”
Trump forecast a win for the administration: “I think we will be very successful in court. I think it’s very clear.”
On some points, Trump was correct.
Rarely has a president’s national emergency declaration been challenged in court. Only once has such a lawsuit prevailed at the U.S. Supreme Court: the case of Youngstown Sheet & Tube Co. v. Sawyer, ruled on in 1952, which overturned President Harry S. Truman’s national emergency.
Truman signed the emergency declaration and seized privately owned steel mills to preempt a national steelworker strike during the Korean War. Truman argued that continued operation of the mills was necessary for the country’s defense. The Supreme Court disagreed, ruling that he did not have the authority to seize private property just because he was the president.
U.S. Supreme Court Justice Hugo Black, writing for the court, said, “In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”
The Truman and Trump scenarios may seem similar, but there is a key difference: In 1976, Congress passed the National Emergencies Act, a law that gave the president unfettered authority to make a national emergency declaration and use specific statutory powers.
Before that, presidents, including Truman, relied on the authority inherent in the U.S. Constitution. As a result, the Youngstown analysis began with the fact that Congress never gave Truman the power to declare a national emergency. Trump, however, is using a specific statutory power created by Congress for the president.
From the outset, Truman’s action is different from Trump’s, said Jonathan Turley, constitutional law professor at George Washington University, in a phone interview with The Washington Post. Trump is acting under a congressional grant of authority.
“This falls into the category of a self-inflicted wound. Courts don’t protect Congress from itself,” he said. “Congress removed the long-standing barrier for presidents, then continued giving billions of dollars with virtually no limitations on the use of the money. Now, those chickens have come back to roost.”
Rep. Jamie Raskin (D-Md.), in an interview with The Post’s Mike DeBonis, confirmed that the House plans to lean on the Youngstown precedent in court.
"They’re about to make the steel seizure decision the most famous Supreme Court case in Washington for the next couple months. The steel seizure case closes the door on what they’re trying to do,” Raskin said.
Rep. Adam B. Schiff (D-Calif.) implied the same, noting, “If Harry Truman couldn’t nationalize the steel industry during wartime, this president doesn’t have the power to declare an emergency and build a multibillion-dollar wall on the border.”
If the odds heavily favor the president, Democrats should also keep the calendar in mind, Turley warned, adding that they may be handing Trump a major court victory that could come down right before the 2020 election.
“This could end up being a serious — political and legal — blunder by the Democrats,” he said.
Youngstown may be the case, but that does not mean it’s a home-run case.
It does not provide guidance on the president’s power to take action in the face of congressional prohibition, according to Gerald S. Dickinson, assistant professor of law at the University of Pittsburgh School of Law.
“Congress has opposed the wall being built based off of its unwillingness to enact legislation or divert money to build a wall,” he said. “We know that the intent behind the National Emergencies Act was not to allow a president to use it for frivolous or partisan purposes,” but legislative intent does not offer a full picture of what is constitutionally permitted.
Elizabeth Goitein, co-director of the Brennan Center’s Liberty and National Security Program, agreed that Youngstown “is not completely on point.” For that reason, Goitein believes the legal arguments should focus less on Youngstown and more on whether congressionally conferred powers can be used pretextually to subvert the role of Congress.
“Congress didn’t expect the president to abuse the powers they were giving him. They expected the president to act constitutionally and in good faith,” she said.
Perhaps the lesson is that’s not an assumption Congress should make going forward.
“Fool me once,” Goitein said. Now Congress realizes how these powers can be abused. If it doesn’t act to revise emergency powers, it will be on Congress the next time this happens.