A Brief Primer on National Emergencies
Since the president’s border national emergency is about to be disapproved by Congress (only to be vetoed), I thought it might be useful to provide some basic insight into the constitutional law questions that will likely be center stage in the coming weeks.
The first modern case involving presidential emergency powers was the case Youngstown Sheet & Tube Co. v. Sawyer (1952) 343 US 579. During the Korean War there was a major strike at steel mills across the country. Truman ordered the Secretary of Commerce to seize and operate the steel mills. The mill owners sued arguing that Truman was exceeding his authority. What makes Youngstown so interesting is that it was a 6-3 and all six members of the majority wrote an opinion. The essential holding by Justice Black is this:
The President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied.
But the more famous bit comes from Justice Jackson’s concurring opinion. This the three levels of presidential power that you’ll probably be hearing about as this proceeds. In fact, it often comes up in Supreme Court confirmation hearings:
Jackson’s formulation was this:
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. [Footnote 4/2] In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, as an undivided whole, lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law. [Footnote 4/3]
3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. [Footnote 4/4] Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.
Under this formulation, Trump’s national emergency clearly falls into that third category. In fact, Jackson believed that Truman’s seizure of the mills also fell under that category, explaining:
This leaves the current seizure to be justified only by the severe tests under the third grouping, where it can be supported only by any remainder of executive power after subtraction of such powers as Congress may have over the subject. In short, we can sustain the President only by holding that seizure of such strike-bound industries is within his domain and beyond control by Congress. Thus, this Court’s first review of such seizures occurs under circumstances which leave presidential power most vulnerable to attack and in the least favorable of possible constitutional postures.
The national emergency we deal with today is a bit different. For one, we have the National Emergencies Act which Congress passed in the 1970s. But that act mostly deals with the process of declaring and ending national emergencies. It doesn’t really address the balance of powers issues that would be central before the Supreme Court… well, with one caveat. 50 USC 1622 allows for termination of a national emergency if “there is enacted into law a joint resolution terminating the emergency…” Originally, that provision only required a concurrent resolution by Congress to terminate the emergency (pdf, see page 11). But after the Supreme Court’s ruling in INS v Chadha (1982) 462 US 919 that “legislative vetoes” were unconstitutional, it was amended to the current language.
The Chadha case involved a case where the House passed a resolution to overturn a decision of the Attorney General regarding the deportation of Chadha. The immigration courts and the AG had determined that Chadha’s deportation should be suspended. The House passed a resolution reversing it. This single house veto was struck down as unconstitutional. However, the Court didn’t get to the issue of whether their determination would be different under a joint resolution. Given the time that Chief Justice Burger gave to the issues of presentment and bicameralism, I suspect the decision would have been the same if it was a joint resolution.
Of course, there is a very big difference between Congress acting when a president declares a national emergency in order to exercise questionable powers and Congress trying to override administrative proceedings.
In this case, I think the Court is going to be guided more by Youngstown than anything else. Trump ran on building a wall, yet for the first two years of his administration, a Republican controlled Congress did not pass any funding for a wall (while having ample opportunity to do so). Before the government shutdown, Congress considered it and clearly rejected it. After the shutdown, and before the emergency, Congress considered it again, and rejected it. Now, Congress is poised to pass a joint resolution to disapprove and terminate the emergency.
Another aspect of this we should consider is Trump’s admiration of one of our most despicable presidents: Andrew Jackson. During Jackson’s presidency, there were several cases regarding the rights of Native American tribes vis a vis the states and the federal government. Most notably was the forced removal of Native Americans from their homelands. But another case was Worcester v Georgia (1832) 31 US 515, wherein Chief Justice Marshall attempted to lay out the idea that the relationship between the Indian Nations and the US was that of nations, in doing so, the Court struck down a Georgia law requiring white people to get a license to be present on Native American lands. This is the case that led to the apocryphal Jackson quote “John Marshall has made his decision, now let him enforce it.”
This is the sort of response that would be “on brand” for Trump. And if things go this way, the only option left would be impeachment…
“A republic, if you can keep it.”