Matthew T. Mangino
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.
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