I could not agree more with William Galston’s advise in his Wall Street Journal column:
“Our great American companies are hereby ordered to immediately start looking for an alternative to China,†President Trump declared last week in an instantly famous tweet. When skeptics questioned his authority to issue such an order, he cited the International Emergency Economic Powers Act of 1977, or IEEPA.
People who followed the ensuing debate among international-trade lawyers were likely surprised; I know I was. The president may well have the legal power to enforce much, if not quite all, of his tweet. Although he cannot literally compel U.S. companies to repatriate their enterprises from China, he can make it all but impossible for them to continue doing business there.
The language of the IEEPA is amazingly broad. In brief, once the president declares a specific emergency, he may block economic transactions of all kinds between the foreign countries or entities named in the emergency declaration and any party subject to U.S. law. The president is required to consult with Congress before instituting the block, but congressional consent is not required.
As originally enacted, the law allowed Congress to block the president’s action with a resolution not subject to presidential veto (a “legislative vetoâ€). Five years later, in the case of Immigration and Naturalization Service v. Chadha, the Supreme Court held legislative vetoes unconstitutional. So to block an emergency declaration, Congress now has to muster a two-thirds majority of each house to override a president’s veto.
For Congress and critics of sweeping emergency powers, the bad news doesn’t stop here. Because the IEEPA doesn’t include a sunset clause, any amendments the president opposes will also require support from two-thirds of both the House and Senate.
The authority Congress has surrendered will be difficult to reclaim—unless the political parties unite to take it back or Americans elect a president who questions the wisdom of his expanded powers.
Those powers should be questioned.
The media’s take on this, as has so often been the case lately, has been wrong. The scandal is not that President Trump should say such outrageous things but that the Congress should attempt to delegate to the president such outrageous power and that the Supreme Court should defer to Congress’s power to delegate its own authority.
I would think it is obvious that you should give no power to Jimmy Carter that you wouldn’t give to Ronald Reagan and you wouldn’t give any power to Bill Clinton that you wouldn’t give to George W. Bush but apparently not. There is no such thing as a permanent partisan lock on the White House. That is a persistent fantasy but it will remain a fantasy.
Now Trump has that power.
The text of the law is here. There are presently more than 30 active emergencies under the terms of the act. All the more scandalous, it is actually a limitation on the president’s powers under the legislation it replaced, the Trading With the Enemy Act of 1917.