Monday, August 26, 2019

Congress Should Fashion a Jeffersonian Fix to Trumpian Royalism

by Michael C. Dorf

Just days after Donald Trump likened himself to a Biblical King of Israel, he asserted a power that might be better associated with the King of America. Miffed that China was taking the predictable and predicted step of responding to Trump's tariffs on Chinese goods with tariffs on American goods, Trump tweeted the following remarkable edict: "Our great American companies are hereby ordered to immediately start looking for an alternative to China, including bringing our companies HOME and making your products in the USA."

"Start looking for an alternative to China" is sufficiently nebulous that one might think or hope that the order was meaningless, but no, later the same day Trump followed up with a tweet that showed he had spoken to someone in the administration with some legal training who had told him how he might justify enforcing some sort of actual trade restriction. He invoked the Emergency Economic Powers Act (EEPA) of 1977.

To be sure, when asked a question at the G-7 meeting in France, the mercurial Commander in Chief acknowledged having "second thoughts" about his escalation of the trade war with China. But then a White House spokesperson claimed that the only second thoughts Trump was having regarded whether to escalate even further. And then Trump announced a new round of trade talks with China, while praising Xi Jinping. Whether Trump attempts to follow through on his ostensible order should those talks fail to produce a deal is thus entirely unclear. I won't hazard a prediction of what will happen five minutes after I publish this column. Instead, I'll focus on the legal and policy questions raised by the initial assertion--that the EEPA gives him the authority to order US companies to cease doing business with China.

The operative statutory delegation of power to the president is breathtakingly broad. When properly invoked, it authorizes the president to
regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States.
That authorization pretty clearly includes the power of the president to command US-based companies to start looking for alternative trading partners not based in China (or any other country); indeed, it authorizes more than that; it authorizes the president to block actual transactions between US firms and Chinese firms.

However, as the immediately preceding Code Section states, the broad powers of the EEPA can only be "exercised to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat." The logical meaning of that limitation is that there must actually be an "unusual and extraordinary threat" and that the president must declare a national emergency. Assuming Trump were to go through the process of declaring a national emergency through some mechanism more formal than a tweet, does the factual predicate exist? Are the Chinese tariffs "an unusual and extraordinary threat" to the the US economy?

The answer should be no. The fact that a president must first declare a national emergency in order to invoke the EEPA provides some indication that whatever else amounts to an "unusual and extraordinary threat," there must be something sudden or unexpected about it. That is not true here. Trump imposed tariffs on Chinese goods and, predictably, China imposed proportionate retaliatory tariffs. Even setting aside the concern that a president ought not to be allowed to create his own emergency, there is simply nothing unusual or extraordinary about a trading partner imposing retaliatory tariffs in response to US tariffs.

Meanwhile, a Congressional Research Service Report produced earlier this year provides some context by cataloguing the sorts of circumstances in which the EEPA has been invoked. Nearly all involved sanctions against regimes and national actors in regimes that posed a national security, trafficking, or related threat. Nonetheless, it is possible that the breadth of the statutory language and its prior use in a wide range of circumstances could lead the (increasingly Trump-packed) courts to uphold Trump's use of it. As the Report states with regard to tariffs, "No President has used IEEPA to place tariffs on imported products from a specific country or on products imported to the United States in general. However, IEEPA’s similarity to [the Trading with the Enemy Act], coupled with its relatively frequent use to ban imports and exports, suggests that such an action could happen."

Also troublingly, the Report notes that "As of March 1, 2019, Presidents had declared 54 national emergencies invoking IEEPA, 29 of which are still ongoing." That is appalling, reflecting gross neglect of Congress's oversight duties. Given that Congress has so little appetite for terminating emergencies, it ought to amend existing law to shift the default in the way that I recommended back in January in connection with Trump's (then-only-proposed) use of the National Emergencies Act to fund his border wall. What I wrote there applies with equal force here:
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. 
[T]here 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. 
In a September 1789 letter to James Madison, Thomas Jefferson (who was then nearly done serving as US Ambassador to France and thus witnessing the French Revolution) argued that all laws and thus all constitutions ought to expire after nineteen years. He arrived at that figure by using the actuarial tables of the day to calculate the time it would take for one mature generation to be diminished by half. With greater life expectancies today the number might be a bit larger, but the Jeffersonian principle that "the earth belongs to the living" can still be invoked in favor of including sunset provisions in legislation.

To be sure, there are both principled and practical objections to implementing something like Jefferson's proposal. As a matter of principle, so long as legislation can be repealed, one might think sunsets unnecessary. Moreover--as the states that were in the process of ratifying the US Constitution concluded notwithstanding Jefferson's advice--even difficult-to-repeal provisions might be justified if one values stability in a governmental framework to a greater extent than Jefferson's earth-belongs-to-the-living principle. As a practical matter, anything like a universal sunset requirement might have just barely worked in the early Republic but would not work today. Congress lacks the capacity to revisit all legislation on a regular basis.

Yet if the general Jeffersonian sunset principle should not and cannot be implemented, a related principle can be applied to presidential declarations of national emergencies. Such a principle--as outlined in my proposal quoted above--would not implement the earth-belongs-to-the-living idea, but it would implement a different and equally Jeffersonian idea: that the president of the American Republic ought not to be vested with powers better suited to a king.