The fine legal mess we are in with the National Emergencies Act
One of the few upsides of having Trump as president is that it has inspired me to take a closer look at constitutional law. The legal controversy surrounding the administration’s decision to declare a national emergency in order to construct Trump’s white-whale of a border wall is the latest example.
A cursory analysis of the situation — one that is being offered by many news outlets and on social media — is that Trump’s attempt to bypass Congress’s “power of the purse” is unconstitutional on its face. If this were true, an out-and-out resistance victory would be in the offing and all our lawyers could soon pack up and go home. Sadly, it’s not that simple.
Other laws passed by Congress come into play and, so, complicate the constitutional questions. First among these complications is the National Emergencies Act (NEA) of 1976. The purpose of the NEA was to clear the federal slate of still-in-effect national emergencies declared previously by presidents and to give Congress the ability to rescind presidential declarations of emergencies once they were issued. The act itself turned out to be a case study in unintended consequences.
Although the NEA provided a mechanism for Congress to undo a president’s decision to declare a national emergency by a simple majority vote, in 1983 in a case called INS v. Chadha, the Supreme Court found all such “legislative vetoes” unconstitutional. If Congress wanted to undo a presidential emergency declaration they would have to muster the good, old veto-proof 2/3 majorities in both chambers to do so.
So, if Congress fails to get the votes to override the emergency action and if legal action is pursued questioning its validity, then it’s up to the federal courts to make the call. The problem — at least for those opposing the emergency declaration — is that the courts, not wanting to take what they view as an executive responsibility on themselves, usually defer to the president to determine what is and is not a national emergency. The net effect is that the NEA has placed the question of what is and isn’t a national emergency back in the hands of the president. This is similar to the deference commonly paid to the commander-in-chief by the courts in national security concerns as well.
There is some hope that Trump’s Rose Garden declaration that there was no real time urgency in his decision to seek creative funding for his border wall might undo him in the courts. Maybe this will be the case. But if experience with Trump’s travel ban is any indication, meandering comments made in speeches may count less than the actual language that he (or, more accurately, his lawyers) will use in their legal filings. At least when the matter comes before this Supreme Court.
But the NEA is not, in and of itself, a funding mechanism. Even with a hard-to-defeat declaration of emergency in place, a president still has to find money to pay for his desired emergency response, in this case a border wall. Here Congress, once again, has come to the president’s rescue.
The Brennan Center has identified 123 statutory powers that may become available to the president when he declares a national emergency under the NEA, including two that might offer some legal cover for his wall-building ambitions. It’s enough to take a look at one of these to understand where this analysis is heading, and that would be the suitably titled section of the U.S. code: “Construction authority in the event of a declaration of war or national emergency.”
The salient point here is that this act gives the president the ability to use “funds that have been appropriated for military construction, including funds appropriated for family housing, that have not been obligated.” Note, that these funds have already been appropriated by Congress, a fact that readily undercuts opponents who are relying on the Appropriations Clause of the constitution to turn back Trump’s wall-building objective.
The opposition case will depend on challenging whether the president’s spending meets the law’s requirement that the funds “are necessary to support such [emergency] use of the armed forces.” As mentioned above, the courts have traditionally been reluctant to second guess a president’s rationale with regard to national security matters. It’s likely that this Supreme Court will defer to Trump’s claim that troops which he has dispatched to the border need a wall to assist in their mission there. And so the screw turns.
The upshot of all this analysis is that, in my opinion, the prospects of opponents of Trump funding his border wall by way of declaration of emergency are going to have a hard time prevailing in court. Some of this is due to the fact that the High Court is now packed with Republican appointees. But most of it is due to the problematic legal framework put in place by Congress over the last several decades.
This framework did not come about without good motivations. Since the Cold War, there has been an agreed-upon understanding that the president’s has to be able to take military action in a timely fashion. Likewise with responding to the urgency required to address natural disasters or public health emergencies, for example. What Congress did not anticipate is the the office of the president would one day be occupied by a liar and a cheat the likes of Donald Trump.
The border wall won’t be Trump’s first miscarriage of the National Emergencies Act; he used a similar machination to threaten tariffs on Canada and our European allies on “national security” grounds. And Trump isn’t the first president to exploit the NEA to political advantage. But his border-wall project will stand as the most egregious abuse of that legislation. And that is more the reason for Congress to begin rethinking about how future emergency declarations should be handled.
