I think the editors of the Washington Post have gotten hold of the wrong end of the stick on the debate about President Trump’s exploitation of the National Emergencies Act to build the wall he promised:
SIXTEEN STATES, led by California, have filed suit in federal court to block any construction of a wall along the southern border using reprogrammed funds pursuant to President Trump’s declaration of a national emergency. Their complaint presents a persuasive case against the president’s move, to the effect that it runs contrary to the constitutional rule that the executive branch may not spend money without Congress’s permission. And, in this case, Congress has explicitly denied Mr. Trump funds to build any barrier except for 55 miles of bollard-style fencing in a specific area of Texas. Not only is there no national emergency, the complaint argues, but also the wall would not meet the definition of “military construction” in the statute Mr. Trump claims as authority for $3.6 billion of his proposed spending.
Convincing as they are in policy terms, however, the states’ arguments face an uncertain future in court. Though Mr. Trump’s emergency declaration flunks the common-sense test, it might actually pass legal muster, because the relevant law — the National Emergencies Act of 1976 — includes no definition of “emergency,” and courts might be loath to second-guess this president for fear of limiting the discretion of future ones.
What’s more, Congress has already provided a means of checking executive overreach, in the aforementioned National Emergencies Act, through the termination of a declared emergency by a simple majority vote of both chambers. If the Democratic House disapproved Mr. Trump’s declaration, the Senate would be required to vote on the matter, too, within 18 days. Crucially, such a resolution would be considered “privileged” and could not be filibustered.
Democratic leaders in both the House and Senate have pledged to oppose Mr. Trump’s declaration “using every remedy available,” and they should certainly use this one — despite the fact that it comes with a huge disadvantage: Mr. Trump retains the power to veto a joint resolution. Therefore, Congress could terminate the emergency only by overriding his veto, with a two-thirds vote of both houses.
but that doesn’t promote the rule of law. It promotes micromanagement along political lines. If the Congress can muster enough votes to override a presidential veto in the interest of declaring the situation at the border a non-emergency, they can do so to repeal the National Emergencies Act entirely which is the right thing to do. No president should have the sort of discretion provided by the National Emergencies Act and Congress should not have the ability to delegate that authority.
I don’t believe that a wall on our southern border is the sine qua non of immigration control but there are people of good will who do. President Trump’s declaration of a national emergency to accomplish his promise of a wall is no more illegal than President Obama’s DACA decision or his executive orders that extended refugee status to battered wives and people fleeing gang violence.
Supporting some executive overreach while rejecting others is no support of the rule of law. Neither is dragooning the courts into settling policy differences. Congress needs to summon the courage to fulfill its constitutional responsibilities itself rather than relying on the executive or judicial branches to do it for them.
If every member of Congress should be required to vote on President Trump’s use of the National Emergency Act to build a wall, they should also be required to vote, straight up or down, on whether they think that refugee status should be extended to battered wives, those fleeing gang violence, or those who just want a better job as well.