National Emergencies Act: Flawed from the Beginning
There has been much debate about President Trump’s declaration of a national emergency on our southern border. Critics complain either that no real emergency exists and/or that Trump’s actions are unconstitutional. Too often, how one feels about the issue of immigration shades one’s view of the declaration. Open borders advocates detest it and condemn the declaration, but those in favor of less immigration generally like it.
No matter where one comes down on this immigration issue, anyone holding any loyalty to our written Constitution should decry the National Emergencies Act itself. In declaring the emergency, Trump specifically relied on “sections 201 and 301 of the National Emergencies Act.” In 1976, Congress granted to the president the authority to declare an emergency and to invoke “special or extraordinary power[s].”
A careful study of Article II of the Constitution, which sets forth the president’s authority, mentions nothing about special or extraordinary powers outside of the instrument. Similarly, Article I, which deals with congressional authority, does not allow Congress to delegate power to the president nor does it grant Congress (or any other branch) special or extraordinary powers outside of those powers specifically enumerated. “The powers of the federal government,” Madison explained in the Virginia ratifying convention, “are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction.”
If it is discovered that the president or Congress needs power outside the Constitution, an amendment is the only allowable course of action. “Had the power of making treaties, for example, been omitted, however necessary it might have been,” Madison explained during the controversy over the national bank, “the defect could only have been lamented, or supplied by an amendment of the Constitution.”
Rather than go back to first principles and acknowledge the flaw in the idea of a National Emergencies Act, critics are blaming the Supreme Court for its opinion in INS v. Chadha (1983), in which the Court held that legislative vetoes are unconstitutional. Under the National Emergencies Act as originally structured, Congress could block implementation of a presidential declaration of emergency with simple majority votes in each house. These votes were not subject to a presidential veto. But Chadha requires all such legislative actions/vetoes to be submitted to the president under the Presentment Clause, which then gives the president an opportunity to use his constitutional veto authority. Congress can only override his veto with a two-thirds vote in both houses. And in the present case, Congress is woefully short of a super-majority to kill the wall project.
Bottom line: Legislative vetoes might be useful tools and could make the National Emergencies Act more palatable. But the real problem here is that the National Emergencies Act recognizes extra-constitutional assumption of powers. Let’s not blame Chadha for bad legislation.