Geoffrey Manne and Seth Weinberger’s Article on Presidents’ Powers to Declare National Emergencies

ICLE President & Founder Geoffrey Manne along with Seth Weinberger, Professor at the University of Puget Sound, published an article titled, Time to Rehabilitate the Legislative Veto: How Congress Should Rein in Presidents’ “National Emergency” Powers at Just Security. Read the introduction below:

Last week we learned that the Senate has likely scraped together the four votes needed to join the House in passing a joint resolution to overturn President Trump’s declaration of a national emergency on the U.S. border with Mexico. The House passed its resolution with the votes of just 13 Republican members, all of them joining the Democratic majority over the vigorous efforts of Republican House leaders to prevent any defections. It is a virtual certainty that Congress will be unable to muster the two-thirds majorities in both houses required to override the president’s promised veto of the measure.

That the national emergency declared by President Trump has awakened even this much opposition in Congress is an anomaly. But the current declaration of emergency is substantially different from earlier ones only in scope, not in kind. Prior to Friday’s declaration, presidents going back to Jimmy Carter have declared a total of 59 emergencies. Thirty-two of these are still active, and all but three of them could hardly be called “emergencies” in the way that term is commonly understood. Even without the partisan political context of the current dispute, any of these should have been sufficient to raise the question of whether Congress had delegated too much of its power to the president.

As a practical matter (if not a political one) these “emergencies” could certainly have been effectively addressed through the normal legislative process. The three possible exceptions are two in response to September 11, 2001 and one in 2009 that relaxed certain regulations to allow hospitals to better address the swine flu epidemic. The rest dealt with sanctions on individuals such as terrorists, drug dealers, state officials, or states themselves, none of which would, assuming a functional legislature, seemingly require the unique energy and speedy action of the unitary executive.

Yet most of the declarations were not even nominally objected to by majorities of either party for the simple reason that they produced politically expedient, short-term results that were acceptable to Republican and Democrat alike. But it beggars belief that no one considered the bigger picture.

Indeed, as the current “emergency” demonstrates, congresses and presidents that delegate or receive broadened power must be careful what they wish for. After all, the power you give to “your president” will eventually be in the hands of “their president.”

To be sure, some circumstances are indeed true emergencies that can benefit from (temporarily) expanded presidential power. But the relatively narrow needs of a specific emergency don’t justify the wholesale abdication of a constitutional structure aimed at mitigating the excessive agglomeration of power in a single branch of government. What is required is a realistic process that allows for a president to take extraordinary action when truly needed, while preserving the ability of Congress to check abusive executive action and to protect its authority in the legislative arena.

Click here to read the full article.