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:
- 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.
- 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.
- 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.