House Starts Process To Terminate National Emergency

But let's talk about the 'Legislative Veto' overturned by Chadha.

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The House of Representatives introduced a resolution to terminate Trump’s national emergency.

We’ve talked about the process before. The National Emergencies Act itself gives Congress the power to terminate a national emergency, via a joint resolution. The House has started that process today. If it passes — the vote is scheduled for Tuesday — it goes to the Senate where the Senate must hold a vote on it. There may or may not be enough Republicans to pass it through the Senate. But if it does, Trump will surely veto the resolution. And there may not be enough Republicans to hold a veto-override in the House and Senate.

But again, we’ve covered this. So let’s get to something new that’s percolating around the legal fringes of this issue: INS v. Chadha. Chadha is the 1982 case where the Supreme Court ruled that a “legislative veto” is unconstitutional. The National Emergencies Act was actually amended, in light of Chadha, to call for a “joint resolution” instead of a simple vote of Congress.

Chadha is one of the most important Supreme Court decisions ever, and I have a documented history of never thinking about it. Really. I was taking an exam in law school and flipping through my notes near the end of the eight hours, I realized that I completely forgot to analyze the annoying-ass prompt in the context of Chadha. Time running low, I picked a relatively random point in my answer and wrote “INS v. Chadha does not apply here.” I… got a B.

The right has been thinking about Chadha a lot. From the National Review:

Chadha ushered in a constitutional distortion. In the NEA, Congress made the president’s unilateral authority to declare national emergencies contingent on Congress’s unilateral authority to terminate the emergency. The president’s NEA authority remains intact, but Chadha removes the contingency. There is no check on the president, even though Congress clearly intended that there be one.

To be sure, there are important differences between the Chadha case and what’s at issue today. Chadha did not involve the declaration of a national emergency. Congress had given the executive branch the authority to suspend deportation of aliens, subject to a legislative veto. Once Congress establishes a deportation process, however, the decision whether to carry out that process in particular cases is executive in nature (just like the decision whether to prosecute a criminal violation is a unilateral executive function). That is, Congress in Chadha was not vesting the president with legislative authority; if anything, Congress was improperly meddling in the president’s execution of immigration law.

In the border situation, by contrast, Congress has delegated to the president the power to declare that a national emergency requiring legislative action exists. This power belonged to Congress in the first place – unlike the innately executive power at issue in Chadha. It is thus understandable that Congress attached legislative strings to this delegation, even if the Supreme Court eventually cut the strings.

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I, uhh, do not think INS v. Chadha applies. Congress here isn’t trying to short circuit executive action via legislative veto, they’re trying to stop it by power of the statute they themselves wrote.

There has been a lot of talk about how the president has “inherent” powers to declare a national emergency, but that’s a bit of a Constitutional red herring. Of course the president can declare a national emergency. He can declare pretty much anything he wants. “It’s Tuesday.” “It’s a national day of thanksgiving.” “When you’re a star they let you do it. You can do anything…. Grab them by the pussy. You can do anything.” We’re not actually fighting over what the president can declare.

We’re fighting over when the president can suspend the normal order of Constitutional governance to address his declarations. The president has no inherent power to act beyond the scope of the Constitution. Any exceptions to the Constitution are governed by… the Constitution and statute. The NEA dictates not whether a president can declare an emergency, but what powers he or she has available to them upon such declaration. If Congress can grant the president extraordinary powers by statute, certainly it can take them away by operation of the same statute.

And if they can’t, if Chadha does apply and President Trump can take the appropriations power unto himself and there’s nothing that Congress can do about it… well, then the whole NEA is an unconstitutional violation of the separation of powers. Congress cannot delegate its essentially legislative functions, even if it wants to. So if Chadha is going to be a thing, then the entire scheme of the NEA is unconstitutional and wrong and needs to be thrown out. And that leaves the president only with his inherent powers to be like “IT’S AN EMERGENCY” without any power to suspend or supersede the Constitution in order to address it.

I’ll take that A now, Professor Tribe. Thank you.

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Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.