The National Emergencies Act allows the president, after finding that a “national emergency” exists, to take money already allocated by Congress for another purpose and spend it to meet the national emergency. The act had a laudable and limited purpose. When a national emergency suddenly arises, action might be needed before Congress, which might not even be in session, could act. The president was given authority to address the emergency.

Normally when the president wants to take action that requires money, he must convince Congress to allocate the money. He cannot just take the action without congressional authority. President Eisenhower wanted an interstate highway system in part because he thought it would aid our national defense. These roads required money. Eisenhower had to persuade Congress to authorize the construction. If he had been unable to convince the legislature, he could not have built the roads. A constitutional branch, co-equal to the executive, would have properly exercised its discretion against the highway system.

Congress has considered the problems at our southern border. No emergency has arisen which the legislature has not had time to examine. Congress has exercised its constitutional power and decided how much should be spent on a border wall. Through the national emergency declaration, Trump seeks to disregard or overrule that congressional decision and usurp the constitutional power of the purse given to Congress.

As far as I know, this is an unprecedented use of the national emergency authorization. No president before has sought to use the National Emergencies Act to do what Congress has expressly decided against. (Trump’s action in a broader sense, however, is not unprecedented. In what we call the Iran-Contra affair, Reagan sought to do what Congress had expressly forbidden, and, unlike Trump’s action, tried to do it in secret and without a fig leaf of a law supposedly allowing the president’s actions.)

The defenders of the president say that even if his action is unprecedented, it is authorized by the National Emergencies Act, in which Congress gave him legislative powers. This reading of the National Emergencies Act raises an important constitutional question. The Constitution’s Section 1 of Article I states, “All legislative Powers herein granted shall be vested in a Congress of the United States. . . .” Congress legislates; the president executes. That was the design of the Constitution. Can Congress change that and cede its powers to the president so that the president can both legislate and execute?

Congress, in fact, put unusual provisions into the National Emergencies Act to constrain a president’s power. That law originally said that a presidentially-declared national emergency ceased if “Congress terminates the emergency by concurrent resolution. . . .” That Act put strict time limits on the consideration of an emergency-termination resolution. That proposed resolution had to be reported out of committee within fifteen calendar (not business) days and voted on within three calendar days. If it passed in one House, the other House had to report it out of committee within fifteen calendar days and voted on by the second House within three calendar days. The requirement for a vote meant that Senators could not filibuster the resolution. If the provision passed by the Senate did not match the one passed by the House, the Act required a conference committee report within six calendar days and the Senate and House action on the conference committee report within another six calendar days.

These provisions worked together so that a congressional minority could not block the rescission of a president’s emergency declaration. A minority could not bottle it up in a committee, and Senate or House leadership or a minority could not prevent a vote. If a majority in each body wanted the termination of the declaration, it would be terminated. And because the concurrent resolution did not require the president’s signature to take effect, the president could not veto it. President Trump, however, has vetoed the present congressional rescission of Trump’s “emergency.” If thirty-four percent of only one house does not vote to override the veto, a national emergency stays in place, as this one has because the House did not override the president’s veto. The National Emergencies Act was structured to prevent such minority power. How did that change?

Time to bring in that third branch of government and the Supreme Court’s 1983 decision of Immigration and Naturalization Service v. Chadha. The Immigration and Nationality Act allowed the Attorney General under certain circumstances to suspend deportation of an individual if the deportation would cause “extreme hardship.” Under that Act, however, either house of Congress could veto the AG’s determination and then the deportation would have to occur.

In Chadha, the Supreme Court held this veto unconstitutional. The Court decided that the veto was legislation, and a proposed law must be passed by both Houses and presented to the president for a possible veto. With the Chadha case in mind, Congress in 1985 amended the National Emergencies Act, leaving all the congressional termination provisions intact so a congressional minority still can’t prevent a vote on a termination resolution, but changing “concurrent resolution” in the original law to “joint resolution.” This joint resolution is the equivalent of a law and has to be presented to the president who can veto it. If it is vetoed, as Trump has done, a minority in one house can thwart the majority in both houses. The president will have legislative authority and power over the purse that the Constitution gives to Congress. Can the Constitution be changed in such fashion without an amendment?

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