Friday, January 11, 2019

National Emergencies: The Big Picture

by Michael C. Dorf

Donald Trump and his spokespeople have repeatedly floated the possibility that, if Democrats in Congress do not accede to his demand for $5.7 billion of border wall funding in exchange for ending the partial government shutdown, he will declare a national emergency and divert previously allocated funding to building his border wall. The proposal raises numerous legal questions. Do the statutes that allow the declaration of such an emergency really vest that much discretion in the president? How have previous presidents used this authority? Are there judicially enforceable rules or standards about what constitutes an emergency? How much, if any, deference, would the president receive, assuming the courts were willing to subject the declaration of an emergency to judicial oversight? What party or parties would have standing to challenge an emergency declaration leading to the shifting of funds to wall construction? What cause(s) of action could be brought? What kind of relief could a court order?

These and other questions are interesting and potentially important. Depending on the course of events, I may address one or more of them. But they are fundamentally lawyers' questions. Debating them in a sense concedes way too much to Trump and his apologists, much in the way that focusing on legal questions always risks obscuring the policy and moral stakes. Consider Trump's travel ban. In Trump v. Hawaii, the Supreme Court addressed the question whether, in light of the deference traditionally shown the president, the third version of the travel ban was so clearly unlawful as to justify judicial invalidation. The answer should have been yes, so the Court got it wrong, but the legal questions never should have even arisen. Yet because of the tendency in the US to equate legal and policy questions (a longstanding tendency that even Tocqueville noted in Democracy in America), Trump was able to claim that he was vindicated by the Court when, judged from a policy standard only, the travel ban was and is grotesque.

Accordingly, I want to set aside most technical legal questions to ask some basic questions about Congress, the president, and national emergencies.

The statutory authorities that Trump would invoke to build (part of) his southern border wall cede power to the president in a way that is hard to square with the spirit of the Constitution--even in normal times with a normal president. Why do I say that? Because Sec. 202 of the National Emergencies Act says that when the president declares a national emergency--and thus invokes special powers that come with such a declaration--the emergency remains in effect until either the president or Congress ends it.

That's the wrong default. The whole point of permitting the president to unilaterally declare an emergency and therefore invoke extraordinary powers is that some crises require immediate action, leaving insufficient time for deliberation in Congress. But--with a categorical exception to which I'll return below--in just about any crisis that does not require a response on the order of minutes, hours, or at most days, Congress can convene in time to deliberate and decide on a response. Congress declared war on Japan the day after the attack on Pearl Harbor. Congress authorized force against the perpetrators of 9/11 one week after that attack.

Judged by that big-picture standard, it should be crystal clear that there is no emergency warranting unilateral presidential action to build a border wall. By that I don't mean just that the number of unlawful border crossings is substantially lower than it was in recent years--although it is. Nor do I mean just that a border wall would do little to address drug trafficking (because drugs mostly enter at ports of entry) or the uptick in Central American migrants seeking to present themselves to file asylum claims--although that's also an obvious problem with Trump's wall. No, mostly what I mean is simply this: Even if one thought that a southern border wall (made of concrete, steel, stones, bricks, or sticks and chewing gum) were vitally important to national security, building such a wall is a project that would necessarily unfold over a long period that can easily accommodate congressional deliberation. And indeed, that's what's happening. Congress is deliberating. The president doesn't like the current outcome of those deliberations, but in a constitutional republic with separation of powers in which the legislature has the power of the purse, a disagreement between the legislature and the executive does not constitute an emergency warranting unilateral executive action. If it did, there would be no real legislative power.

Accordingly, I regard the National Emergencies Act itself as a big part of the problem we currently face. Through that Act, Congress has ceded to the president power that it should have reserved for itself. A unilateral presidential emergency declaration should expire after a short period, unless ratified by Congress. That Congress has acquiesced in a practice of decades-long "emergencies" is shameful. It probably does not violate the Constitution as construed by the SCOTUS, because it would be judged under the essentially toothless nondelegation doctrine. Still, even if the National Emergencies Act complies with the letter of constitutional doctrine, it violates the spirit of the Constitution. That violation has not been previously tested, because we haven't previously had the misfortune to endure a president as shameless or authoritarian as Trump.

Earlier I said there should be a categorical exception to the principle that Congress oughtn't to give the president emergency power that lasts for longer than a few days to a week. The exception should apply in circumstances in which Congress cannot convene due to some catastrophe, such as war, terrorist attack, or enormous natural disaster. Accommodating such a principle in a narrowed National Emergencies Act would be simple: A presidential declaration of emergency would expire automatically within seven days of its issuance, unless Congress is unable to convene during that period, in which case it would remain in effect until such time as Congress re-convened and had an opportunity to act.

Accommodating the possibility of catastrophe in law should thus be fairly simple. Accommodating it in reality, however, presents a substantially greater challenge. In his terrific 2017 book Raven Rock: The Story of the U.S. Government's Secret Plan to Save Itself --While the Rest of Us Die, Garrett Graf recounts how, since the early days of the Cold War, the government has planned for catastrophes, mostly on the scale of nuclear war. Here are three points I took away from the book:

(1) As the subtitle suggests, while particulars have changed over the last seven-plus decades, the core Continuity of Government, or "COG", plan has been more or less the same: Get the president or his successor and other high-ranking government officials out of harm's way to a hardened bunker and then rule by decree from there. Most of the civilian population will be left to fend for themselves. In other words, most of us will duck, cover, and probably die.

(2) Although COG plans were formulated for Congress and the courts, the assumption behind COG  planning was essentially that for some substantial period after a major catastrophe, the executive branch would act unilaterally. No one seriously attempted to harmonize such executive unilateralism with the Constitution, because of the assumption that compliance with the Constitution would be impossible in a sufficiently large catastrophe.

(3) Scary as it sounds, rule by executive decree is probably an unduly rosy scenario of the post-apocalyptic hellscape. COG plans have been and remain woefully inadequate. They failed in repeated drills and, when tested by 9/11--a horrific attack to be sure, but nothing like the scale of a nuclear war--they failed again. Graf pretty clearly implies that disaster planning on the scale that has been envisioned is futile. If such a disaster strikes, we will find ourselves governed, if at all, by street gangs and warlords, not by any designated survivor.

I am tempted to conclude with a joke about how a randomly chosen gang leader or warlord would likely do a better job governing than Trump, or perhaps a different joke about how Trump's fatuous inconsistency has jeopardized the continuity of government (by shutting much of it down) even without any externally caused disaster.

However, I don't want to understate the seriousness of the situation we face. There is a real possibility that Trump could get away with declaring a bogus emergency in order to build his stupid wall--get away with it in the sense that the courts might not block it. If so, Congress, having delegated too much power for even a normal president in the National Emergencies Act, would bear at least some partial responsibility for that fact.

But in such circumstances, the stupidity of Trump's wall would be only a small part of the problem. The real core would be the risk to constitutional democracy. Since ancient times, real and imagined emergencies due to external threat have enabled tyrants to supplant democratic rule with authoritarianism. Some of those tyrants were even dismissed as self-important clowns.

The government shutdown is exacting genuine pain. Some observers have suggested that by declaring an emergency, Trump can save enough face with his diehard supporters to sign a bill reopening the government without wall funding. In the short run, that may seem like the least unlikely path out of the current impasse. In the long run, however, the precedent of a pretextual emergency would pose an existential threat to our republic.

22 comments:

Marty Lederman said...

Mike: Does this critique depend on the notion that the delegation itself is predicated on an "emergency," suggesting that Congress's intent was only to cover situations in which it did not have time to act? If so, Congress abandoned that notion long ago, didn't it?: Think of IEEPA, which requires a presidential declaration of a "national emergency'" from an "unusual and extraordinary threat" in order to trigger its authorities (which are more liberty-restrictive than those we're discussing now). IEEPA is virtually never used in a case where Congress lacks time to act, and yet both political branches (and the courts) have acquiesced in a practice of robust presidential "emergency" findings under it--and they often last for decades.

Isn't it more accurate, then, to view these simply as broad delegation statutes, e.g., "the President may repurpose DOD funds when he thinks there's a really important reason to do so"? If they were phrased that way, I'd be surprised if you'd say that they violated the spirit of the Constitution, right? They'd be understood merely as very broad delegations to the POTUS, on the assumption that the executive (at least when it's not being headed by someone such as Trump) knows better than Congress and/or ought to be afforded the flexibility to shift things around more quickly than the slow moving gears of legislation allow.

I suppose what I'm asking, then, is whether your concern is based upon the assumption that this ignores congressional intent or a more general unease with broad delegations writ large.

Michael C. Dorf said...

Marty: Thanks for the question(s). To some extent, your questions are the sorts of lawyer's questions I mean to bracket. That said:

Yes, I have little sympathy for efforts to revive the nondelegation doctrine, which, together with attacks on Chevron, I regard as aiming at, or at least likely to have the effect of, hamstringing the administrative state. See, e.g., here: https://verdict.justia.com/2017/02/08/judge-gorsuchs-misguided-quest-end-judicial-deference-administrative-agencies .

I don't think it follows, however, that my complaint is simply that a declaration of an emergency to build a border wall would exceed the scope of authority delegated by the various statutes. I do think that, based on the definitions in those various statutes, but I also think that Congress has contributed to the problem with delegations that go too far in a policy sense. Think of my critique here as of a piece with John Ely's objections to congressional shirking of its responsibilities via the War Powers Resolution (and in other respects). Ely (in Democracy and Distrust) advocated a somewhat revitalized nondelegation doctrine in response. I don't go there, but mostly because, in Larry Sager's terms, I think there is a constitutional nondelegation norm that has particular strength with respect to matters like war and peace, but that it is properly under-enforced by the courts. Thus, I wouldn't advocate a court invalidating the National Emergencies Act or any of the various statutes that it triggers, but I do think that Congress has a (judicially unenforceable) duty to be more circumspect in its delegations in this area.

David Ricardo said...

From a public policy point of view one fervently hopes that Trump does not try to use Emergency Powers to divert funds at DOD to build a wall and does not try to use eminent domain to secure the private land with which to do so. The wall proposal is stupidity at a level one could only get from a person like Trump, Fox News, Limbaugh and Coulter.

From a political point of view one hopes that he does go down that path, as it will place the professional conservatives in the position of having to choose between their principles and their party and for elected Republican office holders, their political future. We have already seen that great advocate of limited government and narrow interpretation of the Constitution, Lindsey Graham, completely abandon any pretext of intellectual consistency in the name of sucking up to Trump and preventing a primary challenge in his next election. One has not heard from people like Rand Paul, but it will be interesting to see what position he takes. The truly consistent conservatives/strict constructionists like those who post at the Volokh Conspiracy have already shown they are principled, coming out against the legality of using emergency powers the same as they came out against the ridiculous (from a legal perspective) decision that invalidated ACA.

Finally, from a judicial point of view, the legal community should welcome the declaration of emergency power and the subsequent court fight. This will be a fascinating legal confrontation and will educate the public as to many details of the law, procedure and legal reasoning. Besides, the issue of the ability of the Congress to delegate Article I powers to the executive branch has a long needed judicial discussion. Bring it on!

Craig J. Albert said...

I'd like to expand on the sec. 202 procedure, and if you'd like I'll post something longer.

The National Emergencies Act makes continuing review of emergencies a regular and priority business of Congress. My back-of-the-envelope research reveals that this is routinely ignored. Congress has the power to end a national emergency by joint resolution, which requires the President's signature or a veto override. (Before INS v Chadha it was a concurrent resolution without a presidential signature.)

If I were Nancy Pelosi, I'd introduce the termination resolution the minute after I receive the President's declaration. It becomes the priority business of the relevant committee. The committee will hold embarrassing hearings featuring red-faced cabinet officials. The resolution passes the House makes its way to the Senate, where it automatically becomes the business of the Senate, regardless of what McConnell wants. Again, embarrassing.

At the end of the very accelerated congressional process, it doesn't matter whether or not the resolution passes. Focusing attention and forcing action is the key.

Joe said...

I appreciate the discussion and the last comment.

I question the staying power of any declaration of emergency given the scope, domestic nature (e.g., the property rights of various individuals and perhaps Native American tribes will likely result in court challenges) and controversial nature. Any serious enterprise here would be a very costly, years long enterprise. OTOH, it is far from unlikely that the Administration is more concerned about some Potemkin Village enterprise as well as the sense of conflict & "win" this would bring.

But, including clicking a link provided to Lawfare, the matter goes beyond this one issue. The serious oversight suggested by the last comment should be par for the course.

Craig J. Albert said...

I'd be happy to have any member of Congress explain why this required oversight happens almost zero times. My quick - and very incomplete - research this morning uncovered only one resolution that was ever introduced to terminate a national emergency. (It was introduced by George Miller to end a George W Bush emergency that had suspended the requirement to pay prevailing wages on federal projects during the Katrina recovery. It sat in committee and when Miller tried to bring it up, it was tabled and it died.)

My own feeling is that Congress doesn't do this oversight because nobody wants to be the person whose name is first on the end-the-Iran-sanctions resolution or whatnot, so Congress simply ignores this procedure.

David Ricardo said...

Here is what I believe to be the relevant section. Question: It would seem that the resolution must be voted on. Is this correct? If so it would appear Mitch (Hiding in the the Witness Protection Program) McConnell could not block a vote, that a vote on cloture is not required and so every member of the House and Senate would be on record.

"50 U.S. Code § 1622 - National emergencies

. . .

(b) Termination review of national emergencies by Congress
Not later than six months after a national emergency is declared, and not later than the end of each six-month period thereafter that such emergency continues, each House of Congress shall meet to consider a vote on a joint resolution to determine whether that emergency shall be terminated.

(c) Joint resolution; referral to Congressional committees; conference committee in event of disagreement; filing of report; termination procedure deemed part of rules of House and Senate

(1) A joint resolution to terminate a national emergency declared by the President shall be referred to the appropriate committee of the House of Representatives or the Senate, as the case may be. One such joint resolution shall be reported out by such committee together with its recommendations within fifteen calendar days after the day on which such resolution is referred to such committee, unless such House shall otherwise determine by the yeas and nays.

(2) Any joint resolution so reported shall become the pending business of the House in question (in the case of the Senate the time for debate shall be equally divided between the proponents and the opponents) and shall be voted on within three calendar days after the day on which such resolution is reported, unless such House shall otherwise determine by yeas and nays.

(3) Such a joint resolution passed by one House shall be referred to the appropriate committee of the other House and shall be reported out by such committee together with its recommendations within fifteen calendar days after the day on which such resolution is referred to such committee and shall thereupon become the pending business of such House and shall be voted upon within three calendar days after the day on which such resolution is reported, unless such House shall otherwise determine by yeas and nays.

(4) In the case of any disagreement between the two Houses of Congress with respect to a joint resolution passed by both Houses, conferees shall be promptly appointed and the committee of conference shall make and file a report with respect to such joint resolution within six calendar days after the day on which managers on the part of the Senate and the House have been appointed. Notwithstanding any rule in either House concerning the printing of conference reports or concerning any delay in the consideration of such reports, such report shall be acted on by both Houses not later than six calendar days after the conference report is filed in the House in which such report is filed first. In the event the conferees are unable to agree within forty-eight hours, they shall report back to their respective Houses in disagreement."

Craig J. Albert said...

Yes, that's my reading, but as you may know from the change in the cloture rules re judges' nominations, the majority changes rules simply by voting and setting a precedent. It's not subject to unlimited debate because it's the "pending business" and is scheduled for a vote by statute; there's no need for cloture - a motion to end debate in 30 hours - because it's debated for up to 72 hours and then automatically voted on. It's not a voice vote because of the "yeas and nays".

It's a great procedure. They should use it.

Michael C. Dorf said...

Thanks all. Craig: I think you're right about all of this, AND that the experience of the last several decades shows why, post-Chadha (and maybe even pre-Chadha), the default rule needs to be sunset.

Craig J. Albert said...

This practice has been ignored for so long that I question whether Nancy Pelosi even remembers that it exists.

The other point that I would have made in a full post is that I think the prospect of a federal court enjoining the declaration of a phony emergency is close to zero precisely because 202(c) delegates to Congress the power of review. Any member of Congress foolhardy enough to file that suit would be met with the question, "Have you introduced a resolution yet?"

David Ricardo said...

Yes the Senate can change its voting rules but it would seem that they cannot do so in this case because the voting rules are set by statute and not Senate rules. A Senate majority could agree not to vote,

"shall be voted upon within three calendar days after the day on which such resolution is reported, unless such House shall otherwise determine by yeas and nays."

but that is essentially the same as voting since presumably a vote not to vote is a vote against the resolution in the Senate (assuming the resolution was first passed in the House). It would (will?) be interesting to see how a strict Constitutionalist such as Rand Paul and endangered 2020 Senators and Senators representing states where the very unpopular eminent domain is required for the wall would (will?) vote. If all Dems vote as a block it would take only four GOP defections to pass the resolution.

A National Emergency Declaration; bad policy but late next summer, great political theater!

Craig J. Albert said...

Well, it would pass but the President would veto it. It's the theater aspect that's important, which will create the impetus to pare back the authority or to impose sunsets as Michael suggests above.

On sunsets, I think that when Congress created the 1-year sunset with an optional extension by declaration, they never imagined that these emergencies would be extended every single year or that nobody in Congress would ever introduce a resolution on which to hang the 6-month review. We're now in, what, the 40th year of the Iran emergency? When the NEA was passed, we were in the 43rd year of the Great Depression emergency. The NEA terminated 4 national emergencies, I believe. We now have 28 national emergencies in effect.

On the procedure in-house, look to what happened in 2005. Bush declared the emergency in September. Miller introduced HJRes 69 on Oct 20 and the resolution went to a committee, which started the 15 day clock. After 15 days expired on Friday Nov 4 and nothing happened, Miller (a Democrat in the Republican-controlled House) moved on the next business day to discharge the committee, which would bring the bill to the House floor for a vote. A very junior Democrat moved to table the discharge petition, and the motion was adopted (Probably in front of an empty room.) Dead bill, no yeas and nays.

David Ricardo said...

Okay, even if this is the case

"Any member of Congress foolhardy enough to file that suit would be met with the question, "Have you introduced a resolution yet?" "

the House can act immediately to start the process, which would take about a month or so to reach a conclusion one way or the other, and then the legal process can begin. Admittedly a court could rule that because Congresss could terminate the Declaration the court does not have jurisdiction, but, the Congress does not have to be the only plaintiff in legal action. There are four border states affected and one can easily see California or New Mexico or a border muncipality or county having standing and filing a lawsuit. Any landowner facing eminent domain would also seem to have standing. As I understand the law one does not have to wait for action that would damage a party for that party to start to try to avoid it.

And think of all those conservatives going against the landowners who are fighting government taking of their property. If the Dems play this smart (always a questionable case) this could be a big win for them (and for the rule of law which is actually the more important thing at stake).

David Ricardo said...

Point of clarification, the statute does allow the House or Senate to change the rules of the statute, but again that just means that the Senate has a majority to vote against the resolution in a different form.

But if the resolution did pass it seems unclear in the statute that a Resolution requires Presidential approval, Isn't a Resolution by Congress in general not subject to Presidential approval, signing or vetoing? On the other hand the statute does say that the pertinent Resolution must be 'enacted into law' which might be interpreted as subject to a veto. On the other other hand there is nothing in the statute that says the termination is effective upon signature of the President.



So it seems we might have another Court issue as to what Congress intended with respect to a Presidential signing when it enacted the Resolution process, given the confusing and contradicting language "there is enacted into law a joint resolution terminating the emergency".

Signed: Confused in Asheville

Craig J. Albert said...

Correct points, all of them. I think the strongest case is the eminent domain one because the takings rule is constitutional, not statutory, and there's a clear path for a court to at least examine whether this is a valid "public use".

Craig J. Albert said...

On the resolutions question, it depends. A "joint resolution" is essentially the same as a bill; it requires a presidential signature, presidential inaction, or a veto override. A "concurrent resolution" does not require a presidential signature at all. When the NEA was first passed in 1976, it required a concurrent resolution, but it was changed in 1985 to a joint resolution.

David Ricardo said...

Okay, good

A "joint resolution" is essentially the same as a bill; it requires a presidential signature, presidential inaction, or a veto override

because that makes us a little less confused. One wonders if that was the intent of Congress since it makes an end to the Declaration subject to the voting margins of a veto over-ride rather than a simple majority. If a President was willing to end a Declaration he can do so with a simple proclamation, so why have the Congress go through all that the statute requires just to do what the President can do with a simple statement.

But this would not be, of course, the first time the Congress enacted something it didn't understand or intend.

But even so by the House passing a resolution it would put the Senate on record, whereas now some Republicans are trying to have it both ways, that is, questioning whether we should have a Declaration while at the same time not saying they are opposed to it.

Craig J. Albert said...

They knew what they were doing. The law was changed in 1985 because of the INS v. Chadha case that Mike and I mentioned above. (https://supreme.justia.com/cases/federal/us/462/919/#tab-opinion-1955151). Mike, do you have a clear view as to whether Congress actually needed to do that, given the fact that in this two-house veto, Congress was simply reviewing a temporary delegation to the President of additional powers?

David Ricardo said...

Thanks, appreciate your taking the time to clarify this. These posts that have explored and explained the legalities of the issues to those of us unfamiliar with the complexities of Congressional veto power are a major reason those of us follow this Forum.

So on a practical level Congress cannot really end a Declaration, but the important thing is that they can put Republican members of the House and Senate on the record if one were to be declared. And given the latest news one wonders if the Republicans told Trump he should not make the Declaration because it would put them on the record and harm them politically.



Joe said...

This would make an interesting Verdict column with further discussion of other usage of the practice. See also, the Lawfare article cited. Thanks again for the discussion.

All is well though. Trump aka Hannibal Smith says he has a "plan" to get thru the shutdown. Meanwhile, federal workers (including many Secret Service agents) are denied pay and so on. To underline what is at stake.

This is a major reason why the likes of Lindsey Graham probably want him to declare a national emergency -- long term, he probably figures nothing much will come of it directly (use of the power will have consequences) and it will allow us to have a budget. As I noted when he was elected, the whole thing is a big triage operation.

Shag from Brookline said...

Assuming a president in good faith believes that there exists a national emergency crisis, how long can a president sit on this before making a formal declaration? How would Article II's "Tax Care" clause apply? Trump has threatened to declare a national emergency concerning the situation at America's souther border with Mexico. It was thought Trump might make such formal declaration on Friday, Jan. 11, 2019, as his TV oval office speech on Tuesday, Jan. 8, 2019, failed to get Congress to act to Trump's wailing for a wall funding. On Friday, Trump did not make a formal declaration, stating he wanted Congress to do what he considered to be Congress' job, reserving the right to make a formal declaration. Is Trump fiddling while the emergency continues like an American Nero? Who is the audience for his fiddling? Congress took off for the weekend. Did the national emergency exist on the day of the partial government shutdown? That's just over three weeks ago. Congress may not be in a position to act to Trump's satisfaction that quickly. What does "textualism" inform us as to the statutory meaning of national emergency in the federal act involved? Might the facts suggest bad faith on Trump's part?

David Ricardo said...

I love it when a plan comes together!