Donald Trump

The Vote To Terminate Trump's National Emergency Is More Than Symbolic, Even If Trump Vetos It

Congressional override locks in a few key legal positions, and that might be important to one conservative justice in particular.

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The Senate is set to vote Thursday on the House resolution to terminate Donald Trump’s national emergency. The resolution should pass, as enough Republican senators have already indicated that they will vote to terminate. Assuming they do, the resolution will go to Trump’s desk, where he will likely veto it — the first veto of his presidency. It is unlikely that there are enough votes in the House or the Senate to sustain a veto override of the president.

This likely set of events has made many argue that the vote to terminate the national emergency is merely “symbolic.” If Congress can’t override the president’s veto, what is the point?

As a philosophical matter, I’m sick to death of people who think that voting to follow LAWS doesn’t matter unless Republicans in Congress agree. It’s the intellectual equivalent of saying that we shouldn’t have laws because criminals won’t follow them. At some point, the Republican unwillingness to defend Constitutional government is not a reason others shouldn’t try to defend it.

On the specific issue of Trump’s national emergency, the vote, and forcing a presidential veto, is far from mere symbolism. There are live legal issues about Trump’s authority to steal funds to build a wall with money that Congress didn’t appropriate, and those issues are made more clear if Congress votes to terminate.

The most obvious legal issue is the value in clear Congressional objection to Trump’s use of funds. We’ve talked before about Justice Robert Jackson’s concurrence in Youngstown v. Sawyer. There, Jackson outlined that executive power was at it’s “lowest ebb” when it goes against the expressed will of Congress.

I don’t think there is much debate left about whether Congress wants to fund Trump’s wall. It does not. But voting to terminate a national emergency designed to fund Trump’s wall would be the clearest statement yet that Trump is trying to fund the wall over expressed Congressional objection. A vote to terminate the national emergency leaves Trump with his executive powers, and only those powers. That might matter to a judge or justice.

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But I also think the vote matters on a more fundamental level of separation of powers and the constitutionality of the entire National Emergencies Act.

The NEA is, on its face, a violation of nondelegation doctrine. Congress is not supposed to give away its essential legislative functions, and spending money is among the most “essential” Congressional functions in the Constitution. Now conservatives will tell me — at least they would have told me back when conservatives had principles — that we violate nondelegation doctrine all the time and it’s terrible. Liberals would tell me that violating nondelegation doctrine is fine, so long as Congress can take their power back, whenever they want.

The original NEA was written with this “take backsies” save in mind. In the original law, Congress could vote to terminate a declared national emergency, and that vote was NOT subject to presidential veto.

But then, Chadha v. INS happened. The Supreme Court ended the concept of a “legislative veto” of executive action. In response, the NEA was amended to require a joint resolution to terminate a national emergency, and joint resolutions must be signed by the president.

I would argue that the NEA wasn’t severable from its original termination clause. I would argue that once the president was given the power to veto a resolution terminating his national emergencies, then the whole law became an unconstitutional violation of separation of powers. (There’s a whole cannon of law that deals with whether the requirement of supermajority, as in the case of a veto override, is in fact a retention of Congressional power. It’s not clear and I don’t want to give Westlaw any more money to really dig into that.)

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IF the president can take over the appropriations function of Congress, AND the president can veto Congress’s attempts to take the power back, then the president can overcome Article I of the Constitution by saying: “Abracadabra Emergency!” And that can’t really be the constitutional separation of powers that the framers imagined.

Who might agree with me on my view? Well, Neil Gorsuch might. He really might.

The Supreme Court is currently deliberating Gundy v. U.S. The case involves the sex-offender registry and whether Congress can delegate its control over it to the Attorney General. At oral arguments, Gorsuch expressed a lot of skepticism that Congress could delegate its power in this way. From SCOTUSblog:

The fact that the delegate here is the attorney general evidently concerned Justice Neil Gorsuch, who commented that he had “trouble thinking of another delegation in which this Court has ever allowed the chief prosecutor of the United States to write the criminal law for those he’s going to prosecute.”

The Gundy case could be a reassertion of nondelegation doctrine.

We also know more generally that Gorsuch has a lot of issues with “Chevron deference,” the concept that the Courts should defer to executive branch interpretations of Congressional acts.

The progressives on the Court can be trusted to stop Trump based on the fact that it’s not a “real” emergency, but Gorsuch is a Republican who voted for the Muslim ban. We know that he thinks the president has the power to be bigoted and wrong to whoever he wants if he clicks his heels and says “national security” three times.

But everything in Gorsuch’s history suggests a jurist who is hostile to the executive branch taking over powers that belong in Congress. The Senate override vote matters because it gives Gorsuch a hook to hang his vote upon. Congress tried to stop the president, and if they can’t, Gorsuch is the kind of guy who might spike the whole NEA as unconstitutional.

Call me crazy, but I could see the justice Trump appointed to a stolen Supreme Court seat being the fifth vote to block Trump’s national emergency wall.

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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