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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.

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