William C. Banks Authors OpEd on Southern Border Crisis for Newsday
Opinion: Declaration would defy Congress and abuse power
By William C. Banks
(Newsday | Feb. 10, 2019) President Donald Trump has described the congressional negotiations over his request for $5.7 billion to fund a Southern border wall as a “waste of time.”
He has repeatedly insisted that he can and will build the wall after declaring a national emergency at the border. If the president proceeds, he will undermine the role of Congress in our constitutional system and make a mockery of the uses of this extraordinary emergency power as exercised by modern presidents.
Rhetoric and politics aside, consider a dispassionate assessment of what the law permits. In the end, Congress may already have given Trump the authority he needs to build his wall.
The president exercises whatever powers he has from the Constitution or an act of Congress. The Constitution does not confer any general emergency powers, and only permits suspending the writ of habeas corpus “when in Cases of Rebellion or Invasion the public Safety may require it.” When it comes to appropriating public funds, the Constitution anchors the power in Congress. The Congress appropriates funds, and the president spends them.
Historically, Congress provided generous statutory authorities that allow the president to act and spend in circumstances that rise to the level of national emergency. By 1973, there were more than 470 such laws, most of them vestiges of bygone crises. In a stroke of Watergate-era good government, Congress enacted the National Emergencies Act in 1976 to repeal all emergency laws and create procedures for future presidents to act responsibly in a crisis. However, while enacted with the best of intentions to rein in misuse of presidential emergency powers, the law has, in a backhanded way, enabled considerable presidential initiatives.
The National Emergencies Act requires presidents to specify the statutory authorities they intend to use after declaring a national emergency, make public notice of the emergency declaration and renew such authorities annually in writing to Congress. However, the law requires Congress to act (with a two-thirds majority to overcome a presidential veto) to terminate a declared emergency and allows declared emergencies to be renewed annually by the president.
Intended to stop the practice of endless states of emergency, the law gave them new life. Today, there are 28 national emergencies, renewed for decades by presidents, supported by 136 statutes the president can invoke after an emergency declaration. Congress has never attempted to terminate an emergency declared pursuant to the National Emergencies Act.
Nor are there criteria to guide or limit the president in deciding what constitutes a national emergency. Could Trump declare a national emergency at the Southern border? Yes, unquestionably. Could he then find the funds from among the 136 statutes to order construction of the wall? Yes, arguably ...