https://www.nationalreview.com/2019/01/trump-national-emergency-declaration-constitutional-twilight-zone/
The prospect of Trump declaring a national emergency to fund construction of a border fence puts us in a constitutional twilight zone.
When the subject of the president’s potential declaration of a national emergency arose during our recording of The McCarthy Report on Wednesday, Rich Lowry rightly chuckled in mock amazement when I observed that there was a difference between what should happen and what will happen. He’s right — isn’t there always?
We were discussing the position ardently held by several smart commentators, not least our friend David French, that such a declaration would be illegal: the manufacture of an emergency in order to justify — or, if you prefer, as a pretext for — repurposing Defense Department funds for the construction of physical barriers (are we still calling it “the wall”?) along the southern border.
National Emergencies and Congress
As I hope I made clear in my post on Tuesday about executive legislating through the hocus-pocus of national emergency declarations, I am with David, Charlie Cooke, Jonah Goldberg, and the rest of my fellow editors on the “ought” question. In our constitutional system, Congress is supposed to do the legislating, which includes determining the conditions — emergency or otherwise — that call for legislation. Unfortunately, that fundamental “ought” question is not the one on the table today.
The presumption in our law, whether we agree with it or not, is that this power to declare emergencies and, in effect, legislate measures to deal with them has been delegated to the president by Congress in numerous statutes. With the rise of progressivism and the consequent expansion of executive power in the 20th century, this wayward practice became such a staple of federal law that Congress eventually enacted a regulatory scheme for it: the 1976 National Emergencies Act (codified in Chapter 34 of Title 50, U.S. Code). While the NEA was actually an attempt to rein in executive lawmaking, it explicitly endorsed it. As Rich and I discussed in the podcast, regardless of whether this is right, it is routine.
If I had my druthers, the whole concept would be revisited. Alas, that is a more fundamental question for another day. For now, Section 1621 authorizes the president to declare national emergencies and invoke any powers Congress has delegated by statute for such emergencies.