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01/13/2019

More on the President's Delegated "Emergency" Power
Michael Ramsey

At Dorf on Law, Michael Dorf: National Emergencies: The Big Picture.  Here's the core of the argument:

The statutory authorities that Trump would invoke to build (part of) his southern border wall cede power to the president in a way that is hard to square with the spirit of the Constitution--even in normal times with a normal president. Why do I say that? Because Sec. 202 of the National Emergencies Act says that when the president declares a national emergency--and thus invokes special powers that come with such a declaration--the emergency remains in effect until either the president or Congress ends it.

That's the wrong default. The whole point of permitting the president to unilaterally declare an emergency and therefore invoke extraordinary powers is that some crises require immediate action, leaving insufficient time for deliberation in Congress. But--with a categorical exception to which I'll return below--in just about any crisis that does not require a response on the order of minutes, hours, or at most days, Congress can convene in time to deliberate and decide on a response. Congress declared war on Japan the day after the attack on Pearl Harbor. Congress authorized force against the perpetrators of 9/11 one week after that attack.

Judged by that big-picture standard, it should be crystal clear that there is no emergency warranting unilateral presidential action to build a border wall. By that I don't mean just that the number of unlawful border crossings is substantially lower than it was in recent years--although it is. Nor do I mean just that a border wall would do little to address drug trafficking (because drugs mostly enter at ports of entry) or the uptick in Central American migrants seeking to present themselves to file asylum claims--although that's also an obvious problem with Trump's wall. No, mostly what I mean is simply this: Even if one thought that a southern border wall (made of concrete, steel, stones, bricks, or sticks and chewing gum) were vitally important to national security, building such a wall is a project that would necessarily unfold over a long period that can easily accommodate congressional deliberation. And indeed, that's what's happening. Congress is deliberating. The president doesn't like the current outcome of those deliberations, but in a constitutional republic with separation of powers in which the legislature has the power of the purse, a disagreement between the legislature and the executive does not constitute an emergency warranting unilateral executive action. If it did, there would be no real legislative power.

Accordingly, I regard the National Emergencies Act itself as a big part of the problem we currently face. Through that Act, Congress has ceded to the president power that it should have reserved for itself. A unilateral presidential emergency declaration should expire after a short period, unless ratified by Congress. That Congress has acquiesced in a practice of decades-long "emergencies" is shameful. It probably does not violate the Constitution as construed by the SCOTUS, because it would be judged under the essentially toothless nondelegation doctrine. Still, even if the National Emergencies Act complies with the letter of constitutional doctrine, it violates the spirit of the Constitution.

I'm sympathtic.  But in the comments Marty Lederman asks what strikes me as a pretty devastating question:

Does this critique depend on the notion that the delegation itself is predicated on an "emergency," suggesting that Congress's intent was only to cover situations in which it did not have time to act? If so, Congress abandoned that notion long ago, didn't it?: Think of IEEPA, which requires a presidential declaration of a "national emergency'" from an "unusual and extraordinary threat" in order to trigger its authorities (which are more liberty-restrictive than those we're discussing now). IEEPA is virtually never used in a case where Congress lacks time to act, and yet both political branches (and the courts) have acquiesced in a practice of robust presidential "emergency" findings under it--and they often last for decades.

Isn't it more accurate, then, to view these simply as broad delegation statutes, e.g., "the President may repurpose DOD funds when he thinks there's a really important reason to do so"? If they were phrased that way, I'd be surprised if you'd say that they violated the spirit of the Constitution, right? They'd be understood merely as very broad delegations to the POTUS, on the assumption that the executive ...  knows better than Congress and/or ought to be afforded the flexibility to shift things around more quickly than the slow moving gears of legislation allow.

This seems right -- in this context "emergency" is both overused and overemphasized.  The question is whether Congress can permit the President to spend money that has been authorized for one project on an entirely different project that has not itself been authorized.

Professor Dorf has a response (also in the comments) but it seems a bit weak -- he concedes that he's not generally sympathetic to nondelegation claims but thinks there's a problem here and in similar national security areas.  That seems it too much like trying to have it both ways -- "delegation is fine for things I like, but not for things I don't like."