Matthew T. Mangino
GateHouse Media
February 15, 2019
Congress and the President Donald Trump reached a bipartisan
deal to avert a government shutdown. The recent 35-day shutdown was the longest
in U.S. history. The deal only includes $1.375 billion for border barriers and
increased border security - far short of the $5.7 billion President Trump had
demanded.
President Trump will not take no for an answer when it comes
to his signature campaign promise to build a wall. Trump has decided to fund
his wall unilaterally - during Rose Garden remarks on Friday, the president
declared a “national emergency” on the southern border.
Unknown to most Americans, our Constitution’s system of
checks and balances can be easily swept away when a president declares a
national emergency.
According to Elizabeth Goitein, writing in The Atlantic,
“The moment the president declares a ‘national emergency’ - a decision that is
entirely within his discretion - more than 100 special provisions become
available to him.”
There are legitimate reasons to declare a national
emergency. Usually, those reasons are clear and beyond debate - a catastrophic
natural disaster, a threat from a foreign nation or war - but, a border wall?
The U.S. Constitution does not address the emergency powers
of the president. It does, however, provide emergency powers to Congress. For
instance, the Constitution permits Congress to suspend the writ of habeas
corpus - allowing the government to imprison people indefinitely without due
process.
However, the lack of authority to act has not stopped
presidents from exercising authority they did not have. President Abraham
Lincoln suspended habeas corpus during the Civil War.
Chief Justice Roger Taney issued a ruling that President
Lincoln did not have the authority to suspend habeas corpus. Lincoln didn’t
respond, appeal or release any prisoners. Lincoln was defiant, insisting that
he needed to suspend the writ in order to save the union.
Five years later, the Supreme Court held that only Congress
could suspend habeas corpus and that civilians were not subject to military
courts, even in times of war.
Lincoln was not the first or last president to ignore the
law during times of legitimate crisis. Hundreds of thousands of Japanese
Americans were sent to internment camps by order of President Franklin D.
Roosevelt following the attack on Pearl Harbor and throughout World War II.
It took the federal government 40 years to address
Roosevelt’s abuse of power. Each camp survivor was awarded $20,000 in
compensation by the government.
President George W. Bush’s programs of warrantless
wiretapping and torture after the 9/11 terrorist attacks have also been
acknowledged as an abuse of presidential emergency powers.
Although the courts have often found a way to justify an
abuse of executive authority or just look the other way - the High Court, in a
ruling out of Youngstown, Ohio, did overturn President Harry Truman’s bid to
take over steel mills during the Korean War. This case, having been the
exception provides little guidance on the limitations of presidential power.
The Constitution is relatively silent on the issue, but
Congress has been anything but quite. Over the past century, Congress has
repeatedly passed laws granting the president emergency powers that would
otherwise have been reserved to itself.
Lorelei Laird wrote in the ABA Journal that President Trump
will use the National Emergencies Act of 1976 to declare his national
emergency.
Is there hope that the president’s emergency powers will be
held in check?
The U.S. is currently under 31 concurrent states of
emergency about a host of international issues, according to a CNN review of
documents from the Congressional Research Service and the Federal Register.
The National Emergencies Act is woefully limited. First it
doesn’t define what an emergency is and requires only that the president
specify the statute under which he’s acting. Second, the Act provides that
Congress must meet every six months to vote on whether the emergency
declaration is still necessary, a task the Congress has never taken up since
the law was enacted.
Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by
McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino.
To visit the column CLICK HERE
No comments:
Post a Comment