But my larger claim — that Congress’s delegation to presidents of vast, essentially unconstrained power to declare national emergencies has been an irresponsible surrender of its constitutional responsibilities — does not depend on whether my assessment of this particular case is correct. Not since the New Deal has the Supreme Court struck down a statute for this kind of standardless delegation of legislative authority to administrative agencies, but the Roberts court — activist, conservative and suspicious of broad delegations of power to agencies — recently reached out to review a case, Gundy v. United States, that gives it an opportunity to revive the long-dormant and doubtful non-delegation doctrine.
Another way to make the National Emergencies Act more compatible with the rule of law is through a procedure that would broaden participation in all future decisions to declare national emergencies. Under one such reform, the president would have to consult with the leaders of both parties in Congress before issuing a declaration. Even if Congress could not override such a declaration, members would have to take a public position on the facts and reasons invoked as justification by the president. If time were of the essence (not so in this case; Congress has legislated about a wall for more than a decade), their responses would have to be expedited. With such a procedure in place, judicial review of the declaration could be narrow, if at all.