The Emergency Is Outcome-Based Constitutionalism

Two points about the National Emergencies Act, on which President Trump would presumably rely to declare an emergency for purposes of building a border wall without Congressional authorization, are clear. One is that Congress meant to curtail, not license, broad executive claims of emergency powers. The second is that Congress evinced no intention of courts litigating what constitutes an emergency. If legislators feel President Trump has abused the powers the law delegates both to him and, it is worth recalling, to future presidents of different parties, it is up to them to bodycheck the executive.

That was apparently not the intention of Rep. Adam Smith, a Washington State Democrat and the chair of the House Armed Services Committee, who suggested that judges would do legislators homework for them. “In this case,” he said on ABC’s This Week, “I think the president would be wide open to a court challenge saying where is the emergency? You have to establish that in order to do this.”

Not really. You have to declare an emergency “in order to do this,” but the law neither defines the word nor provides the courts with criteria specific enough to impose their own definition. The judgment of what constitutes an emergency is entirely political in nature. Courts would have no basis on which to resolve such a dispute except imposing their inexpert judgment of whether a genuine emergency obtains.

It is wholly true that President Trump should account for the fact that he will not always occupy the White House and that powers he invokes today will be used for purposes of which he would disapprove tomorrow. After all, the statute that authorizes the president to divert funds to military construction projects during emergencies licenses such activity in cases of danger to “health” and “the quality of the environment,” not just national security.

But his critics should also recall that they may occupy the White House tomorrow, and that they will therefore rue encouraging courts today to referee political judgments about national security. That precedent would amount to sweeping judicial superintendence of national security.

But the president is not the only political official, and as Margaret Taylor notes at Lawfare, the Constitution allows money to be spent only pursuant to an act of Congress. The primary problem is that Congress chose to delegate that power to the president on the basis of standards that are loose to the point of being limitless. If anything, a court challenge would more properly target the National Emergencies Act itself on the basis of the nondelegation doctrine, not the president’s judgment under the law that an emergency has occurred. The courts have no appetite for nondelegation, but neither should they nibble at the bait Trump critics are dangling.

That said, there is a secondary problem, which is that Congress lacks the institutional will to impose itself if it feels its delegation, whatever one thinks of it, has been abused. The proper response is to rescind the delegation. That would now take a veto-proof majority, which is all the more reason not to give authority away in the first place. But even the National Emergencies Act itself—whose purpose was to curb abuses of interminable emergency powers—provides a mechanism for Congress ending a presidential declaration by concurrent resolution.

True, control of the two chambers of Congress is split, and because members are partisans rather than institutionalists, such a resolution is unlikely. But Congress’ refusal to do its own work does not mean the courts should step in. Advocates of judicial power in such a case should consider the moral hazard it entails. Doing Congress’ work discourages Congress from doing so itself. It also encourages further delegations on the grounds that, in the enduring words of the late Senator Arlen Specter of Pennsylvania, “the court will clean it up.”  

The Madisonian assumption is that Congress will not make a mess to start with if doing so entails surrendering its own power. That requires members to behave institutionally rather than ideologically. Even proponents of a border wall should take Madisonian umbrage at the idea of the president spending money they have not appropriated.

Instead, we have outcome-based constitutionalism, under whose terms it is the policy that results, not the process that yielded it, that matters. This is not constitutionalism at all. But it is Congress’ job to fix. There are reasons for that. Maintaining the separation of powers is foremost among them. But the primacy of Congress also reflects the high value the Constitution places on deliberation and the importance of nuanced representation of the full range of political views.

That makes swift action difficult. It is supposed to be. Justice Frankfurter’s concurrence in Youngstown is apt: “No doubt a government with distributed authority, subject to be challenged in the courts of law, at least long enough to consider and adjudicate the challenge, labors under restrictions from which other governments are free. It has not been our tradition to envy such governments.”

The steel seizure was subject to judicial review because mill owners had standing to sue. It is possible that landowners subjected to eminent domain to build a border wall would as well. But Congress would not. It has two institutional feet on which to stand. It should do so.

Reader Discussion

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on January 10, 2019 at 11:06:33 am

Given that our federal courts have already created ex nihilo a new principle of jurisprudence for the Trump Era (and don't kid yourself, it is only for this era)--that the Presidential exercise of lawful power becomes unlawful when the court divines a suspect intent behind the exercise--they will have no trouble answering Smith's call. In fact, I expect there are already a host of district court judges elbowing each other out of the way in order to be the judge who gets to grandstand for the press on this matter.

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on January 10, 2019 at 11:43:44 am

Superb observations, Greg Weiner!

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Jeff Tulis
on January 10, 2019 at 12:07:44 pm

So, let's see if I got it right:
The Congress delegated Congressional authority to the President, authority which Congress should not have delegated and which the President should not exercise were either branch of government to be acting constitutionally.

The President can exercise the delegated power by acting within the terms of Congress' delegation, even though the delegation is unconstitutional, because Congress worded its delegation of authority loosely and carelessly, which Congress would not do were it acting constitutionally and in defense of its own constitutional prerogatives.

The judiciary should not interfere because the delegation of express authority to the president clearly gives the president the power to declare an "emergency," otherwise a Congressional power which the Congress should not have delegated but did delegate to the president and which the courts sould not attempt to define because the statute delegating the power contains no standards, Congress thereby through its legislative abuse opening the door to further abuse by either the Executive Branch or by the Judicial Branch.

The other options are a) for Congress to take back its delegation of authority which it will not do Congress being Congress and b) for the courts to declare the delegation unconstitutional which would require that the Supreme Court resurrect the constitution's crucified (by the Court,) dead and buried non-delegation doctrine, obliging the Court to cross a constitutional bridge too far even for judges and which no branch of the federal government wants to occur, neither the Supreme Court nor the Congress nor the Executive, the Court because , per stare decisis (haha)non-delegation is a closed Pandora's Box, a closed and settled matter the reopening of which would present the judiciary with frightening, unpredictable consequences for the state of legal affairs that the Court has created over the past 65 years; the Congress because resurrecting non-delegation would compel Congress to do its job (and thus force its members to spend less time campaigning,) and the Executive Branch because resurrecting non-delegation would tend to disempower the Administrative State of which the bureaucrats of the Executive Branch are the ruling oligarchy.

This is what could be called a constitutionaly colosal "failure to communicate" and abide by the meaning of the constitution.

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on January 10, 2019 at 22:03:22 pm

A few questions and observations about the shutdown immediately come to mind;

How can Trump / GOP make a valid case when an "EMERGENCY" is something that requires an immediate response. NOT one that will take 15 years to accomplish ?

Why is this an emergency NOW and NOT when the Republicans controlled the purse strings in Congress over the past TWO YEARS ?

How can a President who put children in cages make a believable "Humanitarian" defense?

Why did the President show concern for the African Americans and Hispanics jobs the illegal aliens will take during his speech but showed little concern about the 800,000 federal employees out of work because of his ego driven showdown?

Why did the RNC and Trump 2020 campaign send out a joint fundraiser immediately following the presidents speech stating "Your safety is not a political game or negotiating tactic." when obviously it is by their pleading for money?

After controlling BOTH HOUSES of Congress and the PRESIDENCY for TWO YEARS the answer to all the above is obviously the GOP/RNC like it's long bungling fight against repealing Obamacare cares little for anyone expect themselves. Their scenario is make empty promises and in the end depend on someone to blame for their inept accomplishments. If it isn't the Democrats blocking them, it is the courts or the "deep state" or the media. These past four weeks have shown contrary to the beliefs of the Deplorables Trump isn't the master negotiator his braggadocio made him out to be nor does he "Own the Left". In the political wars winning the hearts and minds of the public is a never ending struggle. President Trump's speech on Tuesday wasn't believable because over the past two years he lost all moral authority and wasted the dignity of the office with his rank jackassery.

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Bob Manderville
on January 11, 2019 at 01:26:41 am

You missed the major argument the House will make, and it has nothing to do will the Emergency Act itself. Rather, they will focus on Trump’s abuse of the (sound) Act by his claiming an emergency through false assertions and for purposes unrelated to an emergency. The “facts” so far put forward in the public sphere to justify the wall and the (comparative) dire need for it are clearly not supportable and suggest other motives. This is an unusual implementation of the Act. If a judge is willing to hear the case because of the apparent exceptional disingenuous of the Administration, then he/she can decide the case without touching Executive power or the Act itself.

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Mike Kyvik
on January 11, 2019 at 09:10:39 am

Madison offered separation of powers as a mechanism, verses mere parchment. But machines don’t run on their own power; they need a power source. What will cause the men of Congress to stand on their feet? If you say the people, then I will ask the same question. If you again turn to Justice Frankfurter, well, at bottom he seemed to be a mystic and, on my reading, his mysticism seemed finally to be only personal, subjective. Still not the juice required.

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on January 11, 2019 at 10:13:21 am

I don't know what you consider a crisis, or what counts as dire. There are something like 12 million illegal immigrants in the US, with around 8 million from Mexico and Central America. And that's just the illegal immigrants, not the legal immigrants from those countries. In 1986, the last time "comprehensive immigration reform" was attempted, there were something like 5 or 6 million illegal immigrants here from those places. That reform bill allowed them citizenship but promised "tougher enforcement" which obviously didn't happen. In addition, in recent years hundreds of thousands of unaccompanied minors from those countries have been apprehended crossing illegally. The US has absorbed something like 8 - 10% of the entire population of Mexico over the last 30 years, legals and illegals. I don't see how anyone can view these numbers and not characterize the situation as dire and an emergency. The GOP certainly bears much responsibility for the situation, but that does not somehow disqualify it or the President from trying now to staunch the flow. It is the sheer quantity that is the issue.

The fact is that all "enforcement" is problematic to certain political elements of the US people. Preventing entry requires some degree of force and violence. Rounding up those already here and sending them back requires some degree of force and violence. All the media need to is show an image of a crying child, even if it is not due to rough handling by US border agents, and people flip out. A wall might or might not be effective but it seems reasonable to try it as all other methods have failed.

This is not necessarily germane to the technical constitutional-legal issues presently under discussion. But I don't see how anyone can look at the numbers and not see the situation as dire.

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on January 11, 2019 at 16:06:03 pm

"NOT one that will take 15 years to accomplish ?"

I suppose by those standard WWII would not constitute an emergency because it took 4 years for the US to end it; or the civil War.

BTW: You may want to consult the list of "emergencies" that are currently on the books, some of which date back to the Eisenhower administration.

Now you are correct about the GOP failure to resolve the immigration EMERGENCY, and it most certainly is an emergency, for two years while they controlled the Congress and the Executive. HOWEVER, it would appear that in the world in which we live, and I may add, the world that is preferred by Leftist s AND Never Trumpers, the Judicial Branch is the SUPREME arbiter of poilcy - not the Executive.
BTW2: The fact that Never Trump GOP and the usual GOP country club cowards and dandies did not resolve the immigration EMERGENCY may very well be the reason that the GOP does not now control the House.

And once again, it all comes down to dignity for self styled elite such as yourself.
How dignified was it for the GOP dandies to NOT pass effective immigration legislation?
How dignified was it for these same dandies to dawdle, delay and otherwise avoid confronting the problems of illegal immigration?

By all means let us be dignified as we allow the Leftist loonies to swing wide the gates and allow into our political community all manner of other countries "deplorables"
Why is it the burden of the United States to ameliorate the declining, and already desperate social / economic conditions of our neighbors.
Why is it proper for Mexico to completely ignore the welfare of its citizens UNTIL they arrive ILLEGALLY in the United States. OMG, then, and only then, does the Mexican oligarchy extend the assistance of the Mexican government to its poor emigres.
Hey, Mexico! How about you show the same concern PRIOR to their departure from your borders.

And, yes, it is all so very proper and dignified, isn;t it?

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Guttenburgs Press and Brewery
on January 11, 2019 at 23:25:01 pm

Guttenberg :
Franklin Roosevelt and Abe Lincoln DIDN'T declare an emergency they declared WAR ! You are extremely naïve if you equate one with the other. Many of those other emergencies that date back to the Eisenhower administration are no longer emergencies but have simply been forgotten to be repealed.

Since when has a Deplorable been concerned about "DIGNITY"? But try to stay on topic here. My question didn't ask about dignity in immigration reform it inquired about the incompetence of the GOP and Trump to build it's sacred wall to keep out their feared brown horde while they had control of Congress and the White House. It also addressed the hypocrisy laced argument Trump made during his Tuesday speech for his ego satisfying monument that was only provoked by getting bettered by two women.....Nancy Pelosi and Ann Coulter.

You can only blame us NeverTrumpers and the country club Republicans for so long but the truth is much of Trumps bull spit is political fodder aimed at the gullible followers NOT legitimate policy proposals. The gullible fall for it just like they did with the kabuki dance the party gave about needing to control Congress in order to repeal Obamacare and once achieved nothing was done. The "CRISIS" is Trump is being exposed as an incompetent liar and they (both Trump and the GOP)need to use the gullible to sustain their jobs come 2020.

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Bob Manderville
on January 12, 2019 at 10:11:15 am

"Ole Bob" at it again, the man whose intellectual contribution consists of asking obviously pejorative rhetorical questions (which slurs by definition and custom require no answer) and then actually answering them with derogatory, if confused, rhetorical answers just in case we didn't get it. But then again, Ole Bob does seem to be speaking from Democrat Party talking points and accustomed to addressing a Democrat audience.

Of such perspicacity, perspicuity and literary skill doth modern Leftist journalism and academia consist and for which are all Washington Post reporters and most university professors paid.

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on January 12, 2019 at 12:50:02 pm

"You are extremely naïve if you equate one with the other. Many of those other emergencies that date back to the Eisenhower administration are no longer emergencies but have simply been forgotten to be repealed. "

It was sarcastic, genius!
And whether repealed or not, they are still in effect and the Executive, yes, even this Executive MAY, if he so chooses, exercise those delegated authorities pursuant to the "outdated" emergency powers.

Perhaps, you Bobbie Boy, may want to stay on topic and like your NeverTrump minions stop trying to establish THE narrative. As you once again raised the ogre of "dignity" I thought it proper to play off of that. AND your country club GOP types were far less than dignified when they failed to exercise their institutional prerogatives as Legislators to resolve the issue of illegal immigration and instead chose to hide behind all manner of parliamentary tactics.
AND you wish to blame Trump for this? In case you missed it in civics class, the Executive does not pass Legislation. The Congress does and they failed to do so. So, Yes, they do deserve the blame and the scorn for once again buckling under to the pressures of the "oh-so-very dignified" media and the polling establishment. Dignity in the Legislature would seem to require some adherence to (her we go) expected "norms and mores"- e.g. deliberation, decision, compromise and Yes, Sweet Jesus, an actual VOTE. As none of this was done by the Never Trumpers and the Country Club dandies, one could argue that they deserve neither respect nor deference and they are certainly not dignified. Cowardice, physical or moral is not, good Sir, ever dignified.

The CRISIS is not Donald Trump - it is the fact that the GOP, Speaker Ryan chief among them, FAILED TO HONOR THE PROMISES THEY MADE. Trump has attempted to do so.

Also, Bobbie Boy, it would appear that the deplorables are not quite so gullible as are you, fixated as you are on some false standard of decorum, which in fact NOT ONE SINGLE EXECUTIVE has ever actually lived up to; you see, the deplorables stayed away in droves during the recent midterms - not as an indictment of Trump BUT as an indictment of YOUR brand of GOP - the moral cowards of modern politics.

How dignified was it for Bill Clinto to engage in fellatio in the Oval Office?
Or JFK having serial affairs with interns during his "Blessed" days in the White House?
I could go on but....
I see none of this with Donald Trump.
Only a flawed man attempting to honor his promises - and for this he is pilloried.
Now keep your pince nez glasses midway between the tip of your nose and the eyebrows while keeping the nose thrust straight up into the air. All the better, Dear Bobbie to look down upon the deplorables while simultaneously avoiding the sight of all those deplorables from other countries slipping under the gates of our border.

Tsk, tsk!!!!

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Guttenburgs Press and Brewery
on January 12, 2019 at 12:57:30 pm

Something you clearly do not realize. There is no option, at least legitimate option, for the Courts to intervene. The Emergency Act provided for a "Legislative Veto" over any Presidential declaration of "Emergency." SCOTUS declared this unconstitutional abridgment of separation of powers in INS v. Chada.
And clearly, SCOTUS has repeatedly declined to interfere with purely Executive Powers exercise under the rubric of his inherent military authority. See Andy McCarthy today at NRO"


Of course, as there now appears to be a new judicial doctrine, "Trump Jurisprudence", wherein base motives purported to underlie anything that The Trumpster advocates, it would not be at all surprising that the New Policymakers, ie.e. the Judiciary, decides to intervene; but they do so without proper warrant.

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on January 12, 2019 at 14:50:59 pm


Tap,tap,tap, ...hello anyone home ? Maybe you should stay away from the Brewery because you obviously misread my post as defending the GOP that I said was inept while having control of the government. But then you seem to be one of the gullible ones that can not only pin the blame on anyone but your orange God but believe it was the Deplorables staying away this past midterm that cost you the House. You see Trump as attempting to honor promises he made while in reality he spends an astounding amount of time back tracking ( and being humiliated) on false comments that he made and covering his absurd spur of the moment policy decisions that later the administration and the GOP have to provide ex post facto justification for. DIGNITY? Talk about naïve ! Over the past two years he threw away any credibility he had with the public and Congress due to his incompetence and adolescent jackassery . That is why HE LOST the House last November and that is why he is losing the publics support every time another story breaks.

BTW: Just for the record it is easy for you to assume I am for an open border but on the contrary I believe the wall is useless and the money can be better spent on more Border patrol agents and more sophisticated methods of controlling our borders. Just as I feel the GOP is useless but putting all your hopes on an incompetent, inept, corrupt idiot is asinine. I'll keep my pince nez glasses firmly between my eyebrow and the tip of my nose if you pull your head out.

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Bob Manderville
on January 15, 2019 at 12:10:58 pm

Well looky here (Jan 15, 2019): A federal judge on Tuesday rejected the Trump administration's plan to add a U.S. citizenship question to the 2020 census, the first ruling in a handful of lawsuits nationwide that claim the question will hurt immigrants. U.S. District Judge Jesse Furman in Manhattan said U.S. Commerce Secretary Wilbur Ross concealed his true motives in adding the question last March, ostensibly to help the government enforce the federal Voting Rights Act.

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on January 29, 2019 at 06:17:42 am

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on January 30, 2019 at 07:26:52 am

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on October 14, 2019 at 06:17:06 am

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on October 15, 2019 at 02:21:51 am

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