March 15, 2019

We Must Restrain Emergency Presidential Powers

As readers are doubtless aware, President Donald Trump has attempted to subvert Congress’s unwillingness to fund a border wall by declaring an emergency, and, thereby, activating statutory powers allegedly authorizing him to redirect money from other appropriations to unilaterally build his wall. As of this writing, Congress has attempted to put a stop to Trump’s usurpation of legislative authority by passing a resolution of both houses, including the Republican-controlled Senate, to overturn the declaration of emergency under the terms of the National Emergencies Act.

Unfortunately, Congress’s work is not done, and the courts will soon have their own work to do in order to put a stop to this executive power grab. Trump has already declared his intention to veto this attempt by Congress to recover control over the appropriations process (in his usual dignified and statesmanlike fashion). Our courts should make it clear that Congress’s ability to control the power of the purse—the central power that the Framers expressly gave to Congress in the text of the Constitution—does not depend on its ability to overcome a presidential veto, and Congress should radically revise the statutory framework through which it has delegated profoundly unwise—and, in my opinion, unconstitutional—emergency powers to the President.

But let’s talk about history, and about how the Framers responded to that history by establishing a careful constitutional structure that is totally at odds with the events of the day.

Executive emergency powers tend not to go well. As political scientists John Ferejohn and Pasquale Pasquino Havlack have observed,  unstable democracies tend to use emergency powers far more than stable democracies, “often as a way to protect or prolong the incumbent government against political opponents.” And the usurpation of democratic law by an executive vested with the power to deal with some emergency is a recurrent theme through human freedom’s painful history. That theme spans at least the time period from Rome, where Sulla dented the republic and Caesar broke it in part by drawing on the traditional emergency office of the dictator, to Germany, where President Hindenburg used emergency powers under Article 48 of the Weimar constitution to issue the Reichstag Fire Decree, handing absolute power over to Adolf Hitler.

At the same time, emergency powers tend to be a felt necessity in the organization of governments, including ours. Enemies invade. Natural disasters devastate cities. Plagues break out and must be handled with martial measures such as quarantines. Rebellions start and need to be put down quickly. Unsurprisingly, governments across the world have made different choices about how much emergency power to write into their laws.

But historical experience suggests some structural choices that well-organized governments make to constrain emergency powers. The primary lesson is that the emergency powers of the executive should be tightly constrained. Emergency powers in the hands of the executive without ongoing supervision by the legislature inflict what economists call a “principal-agent problem”—the executive typically has superior freedom of action (due to command over troops and bureaucrats) and superior access to on-the-ground information. While this is useful for immediate response to exigent circumstances, it also means that the executive can use emergencies, real or imagined, to usurp power from the other branches of government or the people themselves.

This matters not just for the balance of power but for democracy itself. While it is true that in countries such as ours, the executive is every much as elected as is the legislature, the executive is still typically far less accountable to the people than are legislators. Legislators operate through public votes. Executives operate in darkness, through Byzantine bureaucracies and secret security agencies; requiring emergency decisions to pass through the legislature ensures that the people can know what happened and whom to blame. Thus, well-designed constitutions do not grant unbounded executive emergency powers, and willingly sacrifice a little bit of efficiency for the sake of democratic accountability.

The framers of the U.S. Constitution learned those lessons. They had more immediate examples to learn from, for prominent in the legal tradition that the framers inherited was our very own Anglo-American conflict between executive and legislature made real (and bloody) in the battles between Parliament and the Stuart monarchs a century and a half before independence. The Petition of Right that Parliament imposed on Charles I was in large part a response to the arbitrary executive use of financial powers crafted for (alleged) military exigency; controversies over similar powers continued into the Long Parliament and beyond, as Parliament continued to struggle to wrest control over government from Stuart prerogative.

In addition to condemning extra-Parliamentary financial chicanery, the Petition of Right also condemned numerous ostensible monarchical emergency powers, such as the declaration of martial law and the Stuart practice of quartering soldiers. That the Framers learned from this experience is revealed in part from the fact that that last one, of course, was carried directly into our own Third Amendment.

But the heart of the Seventeenth-Century conflict was about the nexus between emergencies and finance. Then, as now, the executive tried to abuse financial powers designed for emergencies to subvert the legislature’s control over the power of the purse. The controversy over ship money, a form of executive taxation without Parliamentary authority, is the most famous example. Ostensibly, ship money was a royal power to tax coastal areas to procure naval funds for the defense of the realm, but Charles tried to abuse it to impose inland taxes, on the basis of dubious emergencies, without Parliament’s consent. Ultimately, this dispute fueled the conflict between King and Parliament that led to the English Civil War, and, with Parliament’s victory, the removal of Charles’s head and the foundations of true English democracy—and of American democracy.

With these events in recent memory, our Framers wisely wrote very limited emergency powers into our constitutional structure, and, critically, required the active participation of Congress in those emergency powers it created. The most prominent emergency power is the power to suspend the “great writ” of habeas corpus, which is located in Article I, among the powers of Congress, not those of the President — and is located among the limitations of the powers of Congress, because the power to suspend the writ is cabined by strict substantive limitations. Justice Scalia, in his dissent in Hamdi v. Rumsfeld, explained the history of the suspension of the writ, and makes it clear that it is located in Article I, and considered a strictly legislative power, because of the lessons the Framers learned from British constitutional history.

The other key emergency provision in the Constitution is the Guarantee Clause in Article IV, which provides that the United States will protect the political integrity of the states against invasions, insurrections, and the like. The Guarantee Clause doesn’t say whether the President or Congress has the primary responsibility to handle those emergencies, but it still betrays the views of the Framers about whether dealing with emergencies is a legislative or an executive power, because it specifies which branch of the state government gets to ask for federal help:

The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.

As I read this, the Framers didn’t accidentally decree that only when the legislature is full-on unavailable is a state governor allowed to ask the federal government to send troops to quell domestic unrest. The state legislature, not the state executive, is in the driver’s seat, because the Framers knew their history and knew that this power is safer in the hands of a legislative body.

The only executive power in our Constitution that is explicitly written to deal with emergencies is the power to convene a legislative session. Article II, section 3, provides that the President “may, on extraordinary occasions, convene both Houses, or either of them…” That’s it. The only explicit constitutional Presidential emergency power — to call Congress to give the President his or her marching orders on how to deal with it. (To be sure, the Framers did not speak with one voice on questions of presidential power. Some of Hamilton’s writings in particular can strike the reader as downright monarchist. And in Federalist 74, Hamilton claims that the pardon power is an emergency power of the President because of its capacity to serve as an expedient tool to quell civil unrest. But the constitutional historian Jack Rakove, in a 2007 article called Taking the Prerogative Out of the Presidency: An Originalist Perspective, does a fine job explaining how Hamilton’s views diverged from the public meaning of the Constitution.)

Note the care taken in these arrangements. The Framers recognized the need for emergency powers to do things like suspend habeas corpus or use troops domestically, but structured the Constitution so that the legislature, not the executive, would decide whether an emergency existed and invoke those drastic powers. And the legislature could exercise those powers only under strict, narrow, conditions; for example, suspension of habeas corpus is permitted only “in cases of rebellion or invasion.”

Compare this wise constitutional design to the overbroad emergency powers that Congress wrote into the statute books. The Brennan Center has tracked down 123 powers that the President, whomever happens to sit in that office, can invoke upon his or her unilateral declaration of a national emergency. The powers that the Brennan Center found in the byzantine collection of legislation on these subjects range from the banal (waive weight limits for trucks transporting jet fuel to an air base in Maine, use an island in the Panama Canal Zone for other than the research purposes it’s designated for) to the authoritarian (seize any boats in U.S. waters, sell property owned by foreigners without the judgment of a court, order patented inventions kept secret), to the downright apocalyptic (permit testing of biological weapons on human subjects (!!!)).

Fortunately, up until now, we’ve mostly had relatively responsible, serious, presidents who have largely used those powers in ways that don’t threaten immediate constitutional crises. The overwhelming majority of declared states of emergency that have persisted into the Trump days have been for the purpose of enforcing sanctions against foreign states, such as Iran. But our good luck in this regard has evidently run out, and we now face the prospect of those same powers being used to fund an appropriation, paired with a policy change, that Congress has declined to permit.

Congress ought to have been more aware of the dangers of the executive powers it wrote into numerous statutes. It failed to provide sufficient safeguards against abuse, and hence failed the American people. Tragically, the Supreme Court too has failed the American People. In INS v. Chadha, the Court ruled that Congress cannot reserve for itself a “legislative veto” over the exercise of powers delegated to the President — instead, Congressional efforts to control the powers delegated to the President must go through the ordinary legislative process, including, alas, “presentment,” i.e., the proferring of a bill to the President himself to sign or veto, and the obligation to override that veto with a 2/3 vote of both houses of Congress.

As Andrew C. McCarthy rightly recognized in the pages of National Review, Chadha destroyed one of the few responsible checks on executive power that Congress had built into the National Emergencies Act, the power to reverse an emergency declaration by joint resolution without going through the burdensome veto and override process. McCarthy’s explanation is worth quoting:

Chadha ushered in a constitutional distortion. In the NEA, Congress made the president’s unilateral authority to declare national emergencies contingent on Congress’s unilateral authority to terminate the emergency. The president’s NEA authority remains intact, but Chadha removes the contingency. There is no check on the president, even though Congress clearly intended that there be one.

The mess we’re now in could have been predicted. Indeed, it was. Justice White, dissenting in Chadha, recognized the consequences that would follow:

The prominence of the legislative veto mechanism in our contemporary political system and its importance to Congress can hardly be overstated. It has become a central means by which Congress secures the accountability of executive and independent agencies. Without the legislative veto, Congress is faced with a Hobson’s choice: either to refrain from delegating the necessary authority, leaving itself with a hopeless task of writing laws with the requisite specificity to cover endless special circumstances across the entire policy landscape, or, in the alternative, to abdicate its lawmaking function to the Executive Branch and independent agencies. To choose the former leaves major national problems unresolved; to opt for the latter risks unaccountable policymaking by those not elected to fill that role.

Justice White recognized that the complexity of the environment in which our nation must operate in the contemporary world means that Congress must often delegate broad authority to the executive, but also recognized that the vision of separation of powers laid out by our Constitution means that Congress must retain ultimate control over the powers it delegates. Tragically, the rest of the Supreme Court did not listen, and Chadha stripped that control away.

The failures of Congress, in granting excessive emergency powers to the President against our constitutional design, and of the Supreme Court, in gutting those efforts Congress did make to ameliorate the dangers of its delegations, have finally brought us to the extremity that Justice White predicted in 1983.

Nonetheless, all is not lost. There are still plenty of sound legal reasons for our courts to enjoin Donald Trump from diverting money to build some wall without genuine legislative authorization. For example, they may deploy the doctrine announced in Justice Jackson’s famous concurrence in Youngstown Sheet and Tube v. Sawyer to recognize that, Congress having refused to authorize precisely the acts Trump is now proposing to undertake, the President cannot constitutionally adopt an aggressive interpretation of the various emergency statutes Congress has enacted in order to subvert its will. The courts should so rule. Moreover, the Supreme Court should overrule the disastrous Chadha decision, and Congress should withdraw the emergency powers it has unwisely granted.

We’re confronted not with ship money, but with wall money, and the money is not looted directly from citizens but diverted from its lawful appropriations — but the attempt by the executive to wrest arbitrary power from under the nose of the legislature and under the cloak of an overbroad grant of emergency authority persists. Congress and the Supreme Court must deliver us a new Petition of Right, and protect us from Presidential power gone out of control.

Photo credit: Michael Vadon [CC BY-SA 4.0 (]