It’s still early, but it seems quite possible that all the court challenges to Trump’s wall declaration will run up against the argument that the 1976 Emergencies Act gives the President broad power to define an emergency.
From a constitutional standpoint, is there an argument to be made the Congress can’t give away its power of the purse, which it appears that they did?
From a tactical standpoint, who has standing to make that argument?
The relevant bit of the Constitution would seem to be:
IANAL, but it seems to me that the money being withdrawn from the Treasury is pretty directly “in consequence of appropriations made by law” (that law being the National Emergencies Act / 10 U.S. Code § 2808 authorizing the President to re-direct some military construction funds).
It seems like a losing argument to me, but YMMV. I don’t have a clue on the standing question.
IANALE(ither). But I think that the Emergencies Act is basically an amendment to Article I – in essence saying, No money shall be drawn (“except if the President declares an emergency, and in that case no appropriation is necessary.”) And Congress can’t amend the Constitution on its own.
Oh yes. The War Powers Act. What if . . . some invasion or something threatening our immediate national security flares up, but all those pesky Congressmen are on vacation? Even though it says Congress must declare war, at this day and age, by the time you get all those guys together in the same room World War III could be OVER! THEREFORE! We get the law that allowed Lyndon Johnson to continually pour U.S. teenagers into the meatgrinder of Vietnam! Oh, yes. And we mustn’t forget. The awful military threat LBJ responded to was a HOAX perpetrated by HIS administration. It was an emergency hoax!
Any court decision will certainly take that little lesson in history into account. However, it is already precedent that the WWIII concept is accepted as reality, and a mechanism for the executive branch is required. In cases like these strict constructionist interpretations of the Constitution fall to the wayside and “what the authors intended” replaces it. Our forefathers didn’t intend for us to lose our country in some lightning fast world war, therefore… Another factor to consider is the court tends to try not to make things bigger than they have to.
SO, I predict the court will find Donald’s emergency, by his own public admission, is not the sort of emergency the forefathers had in mind when they intended what they intended in writing the Constitution. whew The last thing they will do is find the concept of emergency powers unconstitutional. I am prepared to be wrong on this, but I never take that well.
It seems to me that any power implicitly includes the power to delegate that power. The National Emergencies Act, wherein Congress delegated some of its power the President, might have been unwise, but I don’t think it’s unconstitutional.
Which doesn’t, of course, stop challenges on other grounds.
Agree with those who have said, if it comes before the Court they will at most and at best try to address it as narrowly as possible to judge the forms, substance and circumstances of *this specific alleged emergency * and of the specific actions taken in response to it, rather than the whole idea of emergencies and emergency powers.
But, to be a bit of a devil’s advocate, the separation of powers is a vital part of our constitutional system. If Congress passed a single law saying that the President could spend whatever money he wanted on anything that Congress was permitted to spend money on, then we no longer have separation of powers.
I haven’t made my mind up on this, but I am leaning against Trump’s position. By its plain text definition, an emergency is just that: an unexpected event that requires immediate action such that it is dangerous or impractical to follow the normal channels of legislation. Say the sneaky Canadians invade and the President needs to build fortifications and landing strips for airplanes to respond to the threat.
Once there is time, however, for Congress to weigh in on it, then by definition the immediacy has passed. If such a time has passed and that body with the power of the purse says no spending on that airstrip, then that should be the decision that is made:whether that decision is good or bad.
A contrary interpretation could cause all sorts of “emergencies” like a war on drugs, guns, poverty, lack of affordable health care, climate change, a “threat to traditional marriage” and probably any policy issue out there. Banana republics work on states of emergencies that last for decades. Once there is ample time to consult Congress, the emergency is over and it is now simply an issue to be dealt with according to democratic norms.