This appeared in Friday’s Washington Post:
President Donald Trump’s assertion that he might sidestep Congress and get funds for a border wall by declaring a national emergency has sent lawyers, legislators and journalists scrambling to figure out whether he actually possesses the legal authority to do so.
What they’ve found, in part, is that Congress has delegated a surprising amount of emergency or quasi-emergency power to the executive branch over the years, possibly too much. The implications for constitutional government are potentially serious. Whatever happens with Trump and the wall, therefore, this body of law is long overdue for a review, and not by the courts but by the body that created it — Congress.
The Brennan Center for Justice has compiled a list of 123 statutes that enable the president to circumvent ordinary lawmaking processes upon the declaration of a “national emergency,” including the statutes Trump seems most likely to cite if he goes for a wall-building without new appropriations from Congress: two provisions that allow the Pentagon to reshuffle existing military construction funds and redirect them to previously unauthorized purposes in the event of a national emergency. Some of the other laws on the Brennan list are obvious relics: Did you know that the president can press the Fort McHenry National Monument back into military service in an emergency? Many of the provisions on the Brennan list appear never to have been invoked. Still, the laws have real-world impact: Many economic sanctions, past and present, were declared by the president, citing “national emergencies” under the International Emergency Economic Powers Act. Trump’s tariff war on steel imports is being waged under the authority of a trade law known as Section 232 (not on the Brennan list) that allows the imposition of levies when the executive branch decides “national security” requires it.
Congress last scrubbed its delegations of emergency authority in the mid-1970s, holding a series of post-Vietnam War hearings in the Senate that led to the 1976 National Emergencies Act. This law required the president to specify the statute according to which he was declaring an emergency before actually doing so. It also provided that the president must renew a state of emergency annually (as they often do) and that Congress can revoke any state of emergency — albeit by passing a statute, which a president can veto. This was an improvement over the previous status quo of open-ended emergency declarations, but it still leaves a strong bias in favor of presidential power. Once established, a national emergency is hard to revoke.
To its to-do list, the new Democratic majority in the House should add convening hearings on this area of law, with an eye toward cleaning it up. There’s every reason for the Republican-majority Senate, to the extent it cares more about constitutional balance than partisan interests, to join in. The rise of Trump has reminded everyone of the potential danger from unchecked power in the executive. That power may be doubly dangerous if the unchecked power has, in effect, been handed to the president by Congress in the past. Perhaps those Congresses could not imagine a truly erratic and irrational figure in the White House. The current Congress has no excuse.