Emergency powers: None used in the past looks like Trump’s situation

U.S. and Mexico border fence
REUTERS/Shannon Stapleton
President Donald Trump is openly threatening to use his “emergency powers” to build the wall if Congress won’t authorize the power and appropriate the money to do it.

If an “emergency” is whatever the president says it is, and if the “emergency powers” of the president are whatever the president says they are, where are we?

President Donald Trump is openly threatening to use his “emergency powers” to build the wall if Congress won’t authorize the power and appropriate the money to do it. One good question would be what powers Congress has that Trump doesn’t think he can get around with his emergency powers. Second question:

What emergency powers?

The Constitution doesn’t mention the word “emergency.” Not in the preamble, the original text nor any of the amendments. It doesn’t assign – certainly not explicitly and I would say not implicitly either – any special “emergency powers” to the president. Show me where any author of the original Constitution or any of its amendments talks about this.

Presidents have occasionally asserted such powers, and perhaps some speck of emergency powers have become part of the “unwritten Constitution.” Congress has on occasions specified certain powers that it wants the president to have to act in certain emergencies. Sometimes these laws were linked to specific concerns of the moment, but in many cases the laws were left on the books after the circumstances Congress was worried about had diminished.

Elizabeth Goitein of the Brennan Center for Justice wrote a very smart piece for the January issue of The Atlantic reviewing this history and urging Congress to clean up the books and put such extra-constitutional standby powers out of the reach of potentially irresponsible presidents.

But, for the nonce, any such bills would require Trump’s signature or two-thirds majorities in both houses of Congress, and, let’s face it, that is unimaginable unless and until a huge portion of Republicans in both houses of Congress break with Trump, something very few of them have been willing to do.

Presidents have invoked emergency powers before, with the actions often reaching the Supreme Court. But we’ve never faced anything like the current situation, in which the emergency is that the president is embarrassed that he can’t fulfill his campaign promise because he’s lost support in Congress, so he’s threatening to use amorphous emergency powers that would render Congress irrelevant.

Here are three of the big “emergency power” cases from U.S. constitutional history:

  1. Abraham Lincoln claimed to have implied emergency powers when the southern states seceded — to, for example, suspend the writ of habeas corpus. Congress was not in session when the emergency began, but Congress did subsequently pass a law granting Lincoln that power. Maybe this should stand as the best possible case: a real emergency (the Civil War), in which the president took a temporary action to do something with which Congress, as soon as it was able, agreed and ratified.
  2. Soon after the 1941 Japanese attack on Pearl Harbor, and after Congress had just declared war on Japan, Franklin D. Roosevelt, in a panic, claimed to have the emergency power necessary to round up much of the Japanese-American population, including Japanese-American citizens, and hold them indefinitely behind barbed wire in “internment” camps, without the necessity of showing that any of those so “interned” were up to anything fishy. (Maybe some were. Most not.) The Supreme Court, in the disgraceful Korematsu case, ruled in FDR’s favor and the internees stayed interned. This is a bad one. The best thing you can say in its defense, according to me, is there was a real war on, and the rights of a particular minority looked small compared to the larger, seemingly existential, peril.
  3. During the Korean War, the United Steelworkers of America called a strike that would have closed steel mills across the industry. President Harry Truman, arguing that the strike would hamper the war effort, invoked emergency power to nationalize the steel mills and keep them open. The action led to rulings at all three levels of the federal judiciary within a matter of weeks. All three courts, ending with the Supreme Court by 6-3, said that basically nothing in the Constitution empowered the president to do this. Truman acceded to the ruling. The strike occurred. It was eventually settled. The Korean war was fought to a draw, with the pre-war boundary between the Koreas restored.

In these cases, there are genuine emergencies, basically wars, that strengthen the argument for an emergency action.

In the Lincoln case, Congress gave approval and ongoing authorization for Lincoln’s approach as soon as it assembled. In none of the non-Trump cases was the president acting to get around the fact that what he wanted to do lacked support in Congress.

In the current case, what we have is a Trump ego-mergency, to coin a word.

Trump is embarrassed that he can’t fulfill his wall-building promise. The shutdown to force Democrats to cave was a flop. Illegal border crossings are actually down from historical levels. There’s an old Washington saying: The president proposes; Congress disposes. Trump doesn’t get the second half of that.

If the president can do something that Congress opposes, just because he wants do, what would that do to the balance of powers among the branches of government? The numbers of illegal border crossings are actually down. Define “emergency.”

The Goitein/Brennan Center piece says, referring to the laws that create various standby powers for presidents to use in case of emergencies:

This edifice of extraordinary powers has historically rested on the assumption that the president will act in the country’s best interest when using them. With a handful of noteworthy exceptions, this assumption has held up. But what if a president, backed into a corner and facing electoral defeat or impeachment, were to declare an emergency for the sake of holding on to power? In that scenario, our laws and institutions might not save us from a presidential power grab. They might be what takes us down.

I mentioned above the worst of the three cases, when presidential emergency powers were used to put Americans of Japanese descent in camps after Pearl Harbor. And I mentioned that the Supreme Court upheld that action.

Goitein borrowed Justice Robert Jackson’s dissent in that 6-3 ruling, dissenting, I might note, against an action by the very president who had put him on the bench. Jackson was concerned that once Congress allows an emergency power to be created, that each such power “lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”

Any hope that Congress would stand up for the idea that an “emergency” should be a real emergency would have to be broadly bipartisan. MinnPost alum Sam Brodey, now writing for the Daily Beast, reported Tuesday that:

Congressional Republicans don’t love the idea of President Trump declaring a national emergency to secure funding for his border wall. But GOP lawmakers on both sides of the Capitol signaled they wouldn’t do anything to try and stop or shame him.

Comments (15)

  1. Submitted by Ray Schoch on 01/30/2019 - 09:39 am.

    One (among several) words that might accurately characterize Republican attitudes toward a Trump power grab to build his promised wall on the basis of illusory “emergency powers” is “craven.” Another that works almost as well is “corrupt.” Democracy dies when people in power who SHOULD oppose these kinds of power grabs fail to do so. When it comes to Mr. Trump, Senator McConnell has proven himself to be spineless.

    • Submitted by Henry Johnson on 01/30/2019 - 11:39 am.

      ” Democracy dies when people in power who SHOULD oppose these kinds of power grabs fail to do so. When it comes to Mr. Trump, Senator McConnell has proven himself to be spineless.”

      You nailed it in one paragraph Ray. I think to me the most disappointing thing about the last 2 years is how the Republican party shamelessly traded away it’s own professed values in a heartbeat the minute an idiotic reality TV show host became President – not even a SHOW of the republican congress retaining it’s place as a co-equal branch of government – immediate and total surrender to a dictator-wanna-be.

      • Submitted by Frank Phelan on 01/30/2019 - 09:27 pm.

        Traded away what? Far and away their two biggest priorities are tax cuts for billionaires and corporate friendly judges. Check and check. The rest was all just window dressing.

  2. Submitted by Paul Yochim on 01/30/2019 - 10:02 am.

    You failed to mention then President Clinton ordering the American Airlines pilots back to work because the airlines was on contract to USPS.

    A more accurate depiction of FDR’s actions after the Pearl Harbor attack would be the capture and internment and seizure of property of American citizens of Japanese descent without due process. Let’s not whitewash history.

    • Submitted by Ray Schoch on 01/30/2019 - 01:46 pm.

      Agreed, in both instances.

    • Submitted by Jim Camery on 01/31/2019 - 12:48 pm.

      I think Clinton’s thing was different. He ordered the pilots back to work with a 60-day cooling off period, as allowed by federal labor law. He didn’t claim a national emergency (and of course it had nothing to do with spending money that hadn’t been allocated by Congress).

  3. Submitted by Tom Christensen on 01/30/2019 - 10:37 am.

    I think Trump is looking for an off ramp from his stupid campaign promise. A promise that has morphed from the Mexicans paying for the wall, fence, barrier, take your pick, to you and I paying for it. He will try the emergency powers approach, it’ll get challenged, the court will deny it, and Trump will have escaped only looking stupid. He will have mostly avoided the fiscally irresponsible part of the equation.

  4. Submitted by Paul Brandon on 01/30/2019 - 10:51 am.

    Congress has the ultimate counter control vested in the 25th Amendment and impeachment.
    If crying wolf and wasting finite and expensive resources on imaginary threats becomes severe enough, Congress has these avenues available.
    It also has the power of the purse, although that is limited to funds not yet appropriated.

  5. Submitted by Henry Johnson on 01/30/2019 - 11:54 am.

    Let’s be honest, the only ‘crisis’ or ’emergency’ here is a PUBLIC RELATIONS CRISIS that Trump has with his dumb-ass followers, who he promised a magical wall to that would keep everything ‘bad’ out of this country, and which he’s failed to deliver – even when the republicans had the house, the senate and the presidency.

    Now that’s incompetence.

    I think most Americans outside of the mentally challenged Trump base know that almost all of the drugs entering this country comes in thru legal ports of entries- cars, trucks where drugs are smuggled in with legitimate goods, airplanes, fishing boats, cargo ships, and tunnels.

    A new wall does nothing to stop any of those routes, yet Trump claims the wall will stop most of that traffic – sorry dimwit, airplanes can fly over walls, boats avoid them at sea, tunnels go under them, and there are these holes in the wall called a port of entry or checkpoint thru which huge amounts of drugs are smuggled every day.

    And much of the illegal immigration is from people who come in with a legal visa, and then just stay! The magic wall is mostly an illusion as a big solution.

    Better port of entry inspections using better technology, more border agents, more ICE agents, all of these would do more to control the problem than a new wall.

    I don’t think the senate republicans want another shutdown – it hurts their poll numbers too much.

    It will be interesting to see if they go along with this ‘national emergency’ crap, or wise-up and realize they need to start distancing themselves from their master Trump.

    I think almost all of them, except for maybe a few like Graham, know as well as the rest of us that this “emergency” stuff is nonsense, but let’s see if they have enough backbone to not go along with the Trumpster on that, or whether they’ll continue to be spineless lap dogs.

  6. Submitted by Misty Martin on 01/30/2019 - 12:20 pm.

    Eric:

    Thank you AGAIN for another informative article – well written, btw. I always learn something from your knowledge about history and our Constitution. The sad thing about President Trump wanting to fund his wall this way, is that so many of his supporters are perfectly willing to let him. They don’t seem to care about the lack of a necessity for such a wall, whether it will even serve its purpose, or whether or not their grandchildren, great grandchildren or even great, great grandchildren will stay be paying for it! And the national deficit is already beyond one’s wildest imagination – it’s staggering to think about the amount of debt that this great country owes by now. And to put MORE onto that debt!!! And for what? It doesn’t make sense from a man who declared bankruptcy six (6) different times on businesses he owned/was in charge of, etc. And this wall topic is causing even more hatred stirred up in this great country of ours. Did anyone read where some customers at a restaurant recently wrote on their bill “we don’t tip immigrants!” or something like that? And their waitress/server was born here, the restaurant owner went on to say? No one needs to be stirring up even more hatred/bigotry. But not to fear: I hear that POTUS is boosting a bill that would bring back courses in public schools that would teach the Bible, and that the Bible is his favorite book? I’m all in favor of such a bill, but it would be convincing coming from someone like Vice President Pence, who might actually “know” something about the Bible. Still, vice presidents don’t have that power. I just know that the evangelicals will be singing POTUS’ praises even more now. Hmmmm, that wouldn’t be “why” he did it now, would it? Especially with the Presidential election in 2019 coming up? Boy, that’s close isn’t it?

    • Submitted by Misty Martin on 01/30/2019 - 12:21 pm.

      I meant “still” not “stay” be paying for it. I miss the old days when you could check out your reply before posting it on this site, lol.

    • Submitted by Misty Martin on 01/31/2019 - 09:02 am.

      I meant the election in 2020. Mistakes, mistakes. I’m getting too much like P.O.T.U.S., lol.

  7. Submitted by Neal Rovick on 01/30/2019 - 09:54 pm.

    Like so many other “firsts” of the Trump era, this further denigrates the ordinary processes of government. Why bother with having an assessment of security threats if it doesn’t have your “favorite emergency”? What do the experts know, anyway?

    • Submitted by Frank Phelan on 01/31/2019 - 09:17 am.

      It may not be all that different than the way VP Cheney and his crew of geniuses (We’ll be welcomed as liberators) manipulated intelligence to “prove” Saddam had WDM.

  8. Submitted by Paul Udstrand on 02/05/2019 - 10:39 am.

    Whatever. Trump can do this in the sense that no one can stop him from making a “declaration”, but he’ll get the wall built that way.

    I expected him to this to end the shut down a few weeks ago when he said he was going to make a big announcement, but I overestimated his intelligence… again. It would “work” in the sense that it might get him out of the jam he’s created. He could claim victory (He certainly has to problem making false claims) and move on. Most of his supporters would take him at his word and roll on thinking the wall is going to get built… mission accomplished. Done.

    Of course the wall will never get built this way. Apparently Pelosi can block it rather easily, and I’m sure the House will do just that.

    https://www.washingtonpost.com/opinions/2019/02/04/if-trump-declares-national-emergency-pelosi-can-jam-republicans-heres-how/?utm_term=.2e329f800a98

    But Trump can always just lie and claim he’s building it anyways, like he’s already claiming to be building it.

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