The Best Things

The very best thing about the Trump presidency is that it is causing Democrats to see the virtues of federalism and the separation of powers. When the National Emergency Act was enacted, for example, there was a Democratic president, Democrats held a majority of the seats in the House, and Democrats held a veto-proof majority of seats in the Senate. It seemed perfectly sensible to pass a law delegating sweeping and vague powers to the president.

Fast forward 42 years, give the Democrats a narrow majority in the House, a minority in the Senate, and a notionally Republican president whom they despise in the White House and the National Emergency Act starts to look as vile, unconstitutional, and lawless as it always has been.

The best reaction would be for the Congress to join together to repeal the National Emergency Act with enough votes to override the inevitable presidential veto. No one, most especially me, really believes that will happen. The second best reaction would be for the Supreme Court to declare the National Emergency Act unconstitutional. That isn’t likely, either. It is more likely for the ultimate decision to rest on narrower grounds which will be not a bit better in terms of rule of law and the separation of powers than the present situation. Judges should not be micromanaging policy. That isn’t the job of judges but if they rule on narrow grounds that’s just what they will be doing.

4 comments… add one
  • steve Link

    Its a Republican Supreme Court anyway. They won’t rule it unconstitutional. I theory people like Goresuch should see it as bad law, but he will fall in line.

    Steve

  • Gray Shambler Link

    but he will fall in line

    I worry about that too, as Roberts fell in line with progressives over the Obamacare tax. But we can always pray and let our representatives know we support the President.
    Dave. So we would need a vote of both houses for funds in the event of say, a major earthquake?

  • CuriousOnlooker Link

    I am skeptical about the premise; I will be convinced if Democrats still want to repeal the National Emergency Act and other executive powers delegated by Congress when they next hold the Presidentcy.

  • Dave. So we would need a vote of both houses for funds in the event of say, a major earthquake?

    Yes. But keep in mind that primary responsibility for responding to such events belongs to the state governments. And that the president still has power over the military as commander-in-chief.

Leave a Comment