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.