Hoist By Your Own Petard

At The Hill Jonathan Turley makes an observation in rebuttal of the present debate about whether President Trump has the authority to build his wall without Congressional approval by declaring an emergency:

Congress has refused the funds needed for the wall, so Trump is openly claiming the right to unilaterally order construction by declaring a national emergency. On its face, that order would undermine the core role of Congress in our system of checks and balances. I happen to agree that an emergency declaration to build the wall is unwise and unnecessary. However, the declaration is not unconstitutional. Schiff, now chairman of the House Intelligence Committee, insists that Trump “does not have the power to execute” this order because “if Harry Truman could not nationalize the steel industry during wartime, this president does not have the power to declare an emergency and build a multibillion dollar wall on the border.”

The problem is Trump does have that power because Congress gave it to him.

I would be completely delighted if President Trump started building his wall without Congressional authorization, the case were challenged in court, and the Supreme Court issued a broad ruling striking down all similar abrogations of authority to the executive as unconstitutional.

Getting elected to Congress should not be a lifetime sinecure. It should be so difficult and exhausting a job that no one wants to hold it for a lifetime or, indeed, is able to. Congress should not be able to escape its responsibilities by delegating them to a president whom they find congenial only to panic when a president they despise takes office. Sadly, the Court is disinclined to issue such sweeping opinions, a case of the Court’s delegating its own authority to the Congress by showing excessive deference to a Congress unwilling to do its job.

3 comments… add one
  • PD Shaw Link

    The Atlantic had a breathless article last month about all the things Trump could do with emergency powers, noting that the Courts have often supported them with the Youngstown Sheet & Tube case being the notable outlier. However, most of the article dealt with Congressional laws, which have been the most significant source of Presidential emergency powers. “Thirty states of emergency are in effect today.”


  • Andy Link

    The chickens are coming home to roost.

    I guess I shouldn’t be surprised that this has generated little in terms of a reevaluation of Executive power. Most people still seem to love lots of Executive power, just not when the person they hate is in office.

  • Guarneri Link


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