Government

The National Emergencies Act Makes No Goldurned Sense

Why do they need to override a veto?

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(Photo by MANDEL NGAN/AFP/Getty Images)

As the president continues the Weimarification of the U.S. Constitution with his “national emergency” ploy to secure funding for building a wall along the Southern border to address the crisis he didn’t seem to care about for the last two years, his opponents have already ramped up informal whip counts to determine if Congress has any chance to put an end to all this. It’s baked right into the National Emergency Act of 1976, a law designed by the legislature to grant executive leeway to take constitutional powers that should rest with Congress in order to respond to pressing emergencies. But as an extra-constitutional power grant, the legislative branch maintained the power to rescind that authority on the strength of a joint resolution.

And here comes the wrinkle: while there appear to be enough sympathetic, small government Republicans to pass a resolution terminating the president’s power to brand “The Wall” as a national emergency, political reporting is swift to remind us that there probably are not enough votes to override a presidential veto of that resolution.

Wait… why would a law granting the president powers that the office should not be able to have then grant the president an added advantage in protecting those powers from their rightful constitutional keepers?

NYU’s Rick Pildes explores this question in a recent Lawfare post focusing on INS v. Chadha, a case that does not deal with the National Emergencies Act, but finds itself at the heart of the weird power grab we’re all watching.

At issue in Chadha was an immigration law provision that allowed Congress to rein in executive agency authority based on “legislative veto” — basically the joint resolution process at issue in the NEA:

In the Chadha decision, however, the Supreme Court declared all legislative vetoes unconstitutional. The court concluded Congress could not act through concurrent resolution, but only by enacting a new law, through the process of bicameralism and presentment to the president—which provides the president with an opportunity to veto (as President Trump surely will do if the House and the Senate vote to reject his emergency declaration). While Chadha arose under another statute, the decision destroyed the carefully wrought scheme Congress had created in the NEA for sharing power over determining when emergencies existed. But Chadha’s effects went beyond just the NEA, because the decision invalidated the legislative vetoes in all of the nearly 200 federal statutes that contained them. Perhaps no Supreme Court decision has struck down as many acts of Congress in one fell swoop.

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It does seem as though the NEA should reside in a more rarefied air than an immigration statute. Where there Congress was trying to exert long-tail authority of the execution of its laws — an overstep of the traditional notion of separation of powers — the NEA is the opposite. The NEA is a congressional deferral of power to the executive to allow the president to take legislative acts in the face of rapidly shifting events. One might wonder, post-Noel Canning, how a conservative could argue there can ever be an emergency in the modern age that justifies a president acting without congressional action, but that would require believing there was some sort of “principled stance” behind Noel Canning.

One thing that the Pildes article doesn’t address, and something that deserves a thorough hearing in the eventual challenge to this specific emergency, is severability. In Chadha, Congress had explicitly included, in Section 406, a provision laying out that if any particular provision of the Act is held invalid, the remainder of the Act shall not be affected. So when the Court struck down the legislative veto provision, the immigration and naturalization regime of the United States could keep on trucking uninterrupted.

But there’s no such non-severability clause in the NEA. Indeed, it’s hard to imagine a law designed to lay out the balance of constitutionally legislative powers being deferred to the executive without assuming the joint resolution mechanism was central to the whole enterprise. If Congress can’t kill this on a simple majority vote, then the whole NEA should be struck down.

This wouldn’t necessarily stop the president. Before the NEA, presidents declared emergencies in a willy-nilly manner — indeed, that was the impetus of the NEA — but that power was always a little suspect and a Court with a true originalist bent would have a hard time justifying a presidential power grab like this without the fig leaf of the NEA. At the end of the day, it’s all about severability, because the White House needs the NEA to survive as a shell of its intended self. His opposition needs either the statute fully restored or fully junked. It’s really hard to imagine any good argument that this procedure is severable in the context of a law that’s short enough that even the notoriously non-reading current chief executive might take it all in.

On the other hand, the conservatives on the bench are very clever when it comes to manufacturing logic out of whole cloth.

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The Supreme Court’s Contribution to the Confrontation Over Emergency Powers [Lawfare Blog]

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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