Congress is right to strike down national emergency declaration

Congress is right to strike down national emergency declaration
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Before Washington became consumed with Michael Cohen testifying on Capitol Hill about the misdeeds of Donald TrumpDonald John TrumpWarren: 'White supremacists pose a threat to the United States like any other terrorist group' National Enquirer paid 0,000 for Bezos texts: report Santorum: Trump should 'send emails to a therapist' instead of tweeting MORE, a majority of the House of Representatives voted to overturn the national emergency declaration on the southern border. The measure looks likely to pass in the Senate, but there are not enough votes in either chamber to overturn a possible veto by the president. This raises a important question. Is this effort worth the time when so many other issues command attention from Congress?

The answer is yes. Numerous lawsuits have already been filed seeking to challenge the validity of the national emergency declaration. Some of the plaintiffs are landowners on whose property are federal plans to build pieces of the border wall. Some are states seeking to dispute both the basis for the national emergency declaration and executive authority to redirect military construction dollars without the approval of Congress. It is rather likely that in at least one of these cases, a court will consult a precedent in which the Supreme Court considered a executive claim of power that shares more than a few parallels with the current situation.

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In that case, known as the steel seizure case, President Truman sought to nationalize steel mills in the midst of the Korean War to avoid labor strife that the administration believed might affect security and production. Supreme Court Justice Robert Jackson, in a concurring opinion, sketched out a framework for judicial review of executive claims of emergency authority to which the courts have continued to refer. Jackson saw executive action falling into one of three categories.

In the first category, the president acts with the consent of Congress. In these circumstances, courts should be reluctant to overturn executive action, as the president can rely on both the authority granted to him by Congress and whatever power the Constitution affords him. In the second category, Jackson placed executive actions about which Congress shows indifference, expressing neither approval nor disapproval. He cautioned courts to tread lightly in reviewing the validity of actions in this category, for the circumstances will likely involve exigencies that Congress has had no time to consider and which judges might be poorly suited to assess.

In the third category, Congress has acted so as to deny the president the power he claims. Here, Jackson explained, claims of executive authority may be weakest because this is when the president acts against the will of Congress and relies only on his own constitutional powers. In light of a constitutional preference for legislative decision making, Jackson advised that, when reviewing actions that fall into this category, courts should withhold deference they would otherwise accord the executive branch.

Jackson put the executive action by Truman to nationalize the steel mills into the last category. Though Congress granted the president authority to take private property in certain situations, none of those laws explicitly permitted the executive action in the steel seizure case. Furthermore, the legislative history showed that Congress had considered and rejected broader grants of power to the president. This is precisely why the effort within Congress to oppose the declaration by Trump may be significant.

Lawyers for the federal government will argue that statutes authorizing the president to declare emergencies and to redirect military construction resources for national defense purposes support the executive action by Trump. However, none of those laws expressly contemplate spending devoted to a project like the border wall. Within the past three months, Congress has also refused the president funding for his version of the wall. If the current resolution passes the Senate, a majority of Congress will have publicly memorialized their clear disapproval of the national emergency declaration, a fact that will remain unchanged by a veto.

This means that, with respect to the wall, the president cannot claim the support of Congress or even its indifference. Instead, the courts would face a situation like the steel seizure case, with a president acting against the will of Congress, relying only on his own constitutional powers. The Supreme Court viewed the claim of Truman of inherent authority to take the steel mills with appropriate skepticism. The courts hearing challenges to the national emergency declaration by Trump should thus do likewise.

Lawrence Friedman is a professor at New England Law in Boston, where he teaches constitutional law. He is the author of “Modern Constitutional Law.”