Complicity in Trump’s Bogus Emergency

After Congress denied him most of the funding he requested for a border wall last week, President Trump declared a national emergency, thereby invoking power to shift funds that were originally appropriated for other purposes. To state the obvious, no emergency exists. Illegal border crossings are down, and while there has been a recent increase in the number of Central Americans seeking refuge from violence in their home countries, those migrants seek to enter the US at recognized border crossings; a wall would do nothing to address that problem.Meanwhile, even if a border wall were a reasonable policy proposal, there is no justification for unilateral presidential action. A president sometimes must act without first consulting Congress, because time is of the essence. For example, Congress was not in session when Confederate forces fired on Fort Sumter in April 1861, but President Lincoln, while promptly calling for a special session, quite properly did not wait for Congress to reconvene before commencing his defense of the Union. Needless to say, the southern border is not under armed attack, and President Trump has had plenty of time to obtain congressional funding for a wall. A president not getting everything he wants from Congress does not constitute an emergency in any ordinary sense of the word.Accordingly, various persons and institutions have filed or plan to file lawsuits seeking to block Trump’s ability to divert funds from their appropriated purposes, to exercise the power of eminent domain over private and tribal lands, and otherwise act on the basis of his bogus emergency. These lawsuits will likely delay work on the border wall, but whether they ultimately succeed remains to be seen.The fact that there is even a slim chance that Trump will have his way is remarkable. The US Constitution grants the president no emergency spending powers. Indeed, it specifically forbids money from being “drawn from the treasury, but in consequence of appropriations made by law.” How, then, is it possible that Trump has any wiggle room at all to circumvent Congress?The short answer is that while Trump himself bears the largest share of responsibility for this latest shameful undermining of constitutional democracy, he could not have accomplished it without assistance from Congress, the courts, and the People.Emergency Power Run AmokPrior to the adoption of the National Emergencies Act (NEA) in 1976, presidents had declared emergencies even without congressional authorization. The NEA’s purpose was to terminate prior declared emergencies and to prescribe limits on the duration of subsequent declared emergencies. Yet ironically, that Act and others have had largely the opposite effect: delegating to the president a somewhat open-ended power.The original version of the NEA allowed Congress to terminate a presidentially declared national emergency by a concurrent resolution—that is, by a bill passed by both houses of Congress, without the need for a presidential signature. However, in the 1983 case of INS v. Chadha, the Supreme Court held that legislative vetoes violate Article I, Section 7 of the Constitution. The Chadha case invalidated a unicameral legislative veto, but subsequent decisions applied its rule to invalidate a bicameral veto as well.Accordingly, in recognition of the unconstitutionality of the concurrent-resolution procedure for terminating a national em