Must they? Or, like Congress as a whole, can they just sit on the sidelines and punt? Marc Thiessen argues from principle that Donald Trump’s emergency declaration attacks the balance of power in the federal government and arrogates far too much power to the executive. Even if Trump wins in court, it’s a loss for limited government, Thiessen predicts in his column at the Washington Post:
Now, the smart move for Trump would have been to pocket that $1.38 billion and bolster it with an additional $3.1 billion he could arguably use without a declaration of a national emergency — by reprogramming $600 million from the Treasury Department’s drug forfeiture fund and $2.5 billion from the Defense Department’s drug interdiction program. That would have given him $4.48 billion in wall funding — nearly the full amount he was demanding from Congress. Then, in December, he could demand more money with leverage over Democrats when an automatic sequester kicks in, forcing $55 billion in across-the-board cuts to domestic discretionary spending unless Trump agrees to raise spending caps.
Instead, Trump has made the wrong move once again — declaring a national emergency, despite warnings from Senate Majority Leader Mitch McConnell (Ky.) and other Republicans that it could provoke a backlash from within his own party.
His order will face an immediate court challenge, which means he won’t be able to spend the emergency funds anytime soon, if at all. And if he prevails in court, it will be a disaster for the cause of limited government. If Trump can declare a national emergency to build a border wall Congress refused to fund, then the power of the president to override Congress’s power of the purse will be virtually unlimited. As Rep. Cathy McMorris Rodgers (R-Wash.) pointed out, a future liberal president could declare climate change a national emergency and “force the Green New Deal on the American people.” Or, as House Speaker Nancy Pelosi (D-Calif.) suggested, a Democratic president could one day declare the “epidemic of gun violence in America” a national emergency thanks to Trump’s action.
Thiessen counts noses in the Senate and comes up with a dozen who might vote to pass a resolution of disapproval, the mechanism by which Congress can reject a declaration of national emergency. The Hill counts ten Senate Republicans who might assert legislative primacy over federal appropriations. The first problem that arises with these calculations is that the resolution may well pass, but Trump gets a veto over it, too. Even if twelve Senate Republicans crossed the aisle, that would only get an override to 59 votes, eight short of success. How many of these Senators would cast such an initial vote if an override was impossible in their own chamber, let alone in the House?
It doesn’t matter, Thiessen argues. It’s not a rebellion against Trump, but Trump himself who created the problem for Senate Republicans:
Trump’s defenders will argue that Republicans should not deliver such a rebuke to their president. In fact, the opposite is true: It is Trump who should not be forcing Republicans to choose between fidelity to their president and fidelity to the Constitution. And if forced to choose, they must choose the Constitution.
Granted, emphatically. If that’s the choice in an unprecedented situation, Senate and House Republicans absolutely should honor their oath to the Constitution rather than any loyalty they may or may not feel to a president of their own party. (The same goes for Democrats, obviously.) However, this situation is not all that unprecedented, as it turns out, and Congress gave up the constitutional ghost on this 43 years ago. They passed a law that authorizes presidents to do precisely what Trump is doing now — and have done nothing as every president since Jimmy Carter has used the mechanism regardless of the nature of the “emergency.”
In my column for The Week, I ask readers to guess how many concurrent states of national emergency existed prior to Trump’s action. Hint: It’s as many as Baskin Robbins has flavors:
Unfortunately for Coons and other Democrats — and a handful of Republicans protesting Trump’s actions — that precedent was set decades ago. While this may be the first time a president has used the National Emergencies Act passed by Congress in 1976 to bypass Congress’ appropriations process, the law does indeed contain a grant of authority for presidents to spend money without appropriation from Congress. If Congress challenges Trump’s novel use of the NEA, it might have to explain why the law allows for his move in the first place — and why Congress remained uninterested in policing this authority until now. …
Until now, Congress not only hasn’t objected to the use the NEA for purposes that could easily have been addressed under normal conditions — such as applying sanctions in Belarus in 2006 — it hasn’t had much interest in using its authority to close out emergencies and restore its own standing.
That brings us back to the question of what it feels like to live in a state of national emergency. Of the 59 national emergencies declared by presidents since 1979, more than half remain in effect today. The still-extant “emergencies” include:
- Regulation of the Anchorage and Movement of Vessels with respect to Cuba (1997)
- Prohibiting Certain Transactions with Respect to the Development of Iranian Petroleum Resources (1995)
- Blocking Sudanese Government Property and Prohibiting Transactions with Sudan (1997)
- Blocking Property of Persons Who Threaten International Stabilization Efforts in the Western Balkans (2001)
In all, we were living in 31 concurrent states of emergency even before this latest declaration. Of the 28 emergencies no longer in effect, not a single one was revoked by an act of Congress.
None of this disputes Thiessen’s theoretical point, by the way, nor to discount the novel context in which Trump used the NEA. Until now, no president has used it to get around a budget fight with Congress, and that context does make this more offensive. However, the NEA unlocks more than 100 specific authorities for presidents, according to the Brennan Center, among which is the power to redirect funding “without regard to any other provision of law” to undertake military construction dealing with the emergency (10 USC 2808). Presidents have used that authority in previous emergencies without any objection from Congress, or even any attempt to curtail that authority by ending “emergencies” stretching back decades.
Congress passed the buck to the White House in 1976. They’re just unhappy that Trump decided to spend it on a border wall after a shutdown. And they should be, as Thiessen notes, but their anger should be directed at themselves. They have abandoned their constitutional duties to deal with significant issues and take tough votes at times in favor of giving the White House the authority to let them off the hook.
So what to do now? A good start would be to repeal or greatly limit the scope of the NEA and its constituent statutes. And after that, perhaps Congress should do their jobs and pass normal legislation to deal with the other 31 “emergencies” they’ve ignored for years. If Congress wants Trump and the public to respect their prerogatives, they should start by respecting those themselves.
Update: My math was initially off in counting votes for an override. Twelve Republicans would be added to 47 Democrats in the Senate for a total of 59; for some reason I added the Republicans to the Republican caucus of 53 for a total of 65. I’ve fixed it above.