President Trump opened a Pandora's box of legal questions when he declared a
national emergency in order to fund his border wall.
Living here today both immigrant and U.S. born. Everybody's gonna be happy. Can future presidents,
perhaps Democratic ones, issues similar orders over climate change? Or guns? Or
minimum wages? And what does the national emergency say about the separation of
powers between the Executive and Legislative branches. We might get
answers soon. Some 16 states just sued the federal government over the national
emergency setting up a big legal battle with the White House. We're at the very
beginning I think we have fairly drawn out an extensive litigation process. You
know, I don't think we've seen all the lawsuits that we're eventually
going to see arising out of the president's actions. According to Vladek,
most of the legal arguments fall into two categories.
The first kind might force the courts to litigate the facts on the ground.
Basically, asking the courts to decide whether what's happening on the U.S.
border with Mexico is actually a national emergency. The second track gets
into the nuts and bolts of the National Emergencies Act, the law that President
Trump is using in this specific instance. Some of these lawsuits are challenging
the validity of the emergency itself and whether the president was justified in
invoking the National Emergencies Act. And then I think some of these lawsuits are
also looking much more specifically at the effects of the emergency declaration.
And the specific statutory authority the president has unlocked by declaring a
national emergency. Especially this military construction statute section
2808 of title 10. You know some of lawsuit have both of those claims. Some of the
lawsuits have other claims but to me I think those are the two big ones to keep
an eye on. To better understand what's happening, let's head back to September
1976. President Gerald Ford had just beat out Ronald Reagan in the GOP primary and
the Viking 2 spacecraft had just landed on Mars. Congress also just passed the
National Emergencies Act. At the time, it was an attempt to limit the scope of the
executive branch's emergency powers. After all, just two years before,
President Nixon resigned in disgrace amid the Watergate scandal. One of the
real irony's about the National Emergencies Act is that when it was
enacted, it was thought to be an important constraint on the president. We
had had lots of examples prior to 1976 of emergency declarations for all kinds
of purposes. And so Congress tried to create at least procedural regularity
for national emergencies by basically bringing them all within the ages of the
single statute by requiring the president to formally declare these emergencies in
the Federal Register, by having emergencies expire after one year if the president
didn't re-authorize them or re-declare them and by creating a mechanism
for Congress for the first time to terminate a national emergency before
that one year is up. Even before the president had decided
whether to reauthorize it or not. What's happened since I think then what hasn't
been appreciated until the last couple of months is that the check, the
termination mechanism, really got watered down in the 1980s. So as initially
enacted the statute would have allowed a termination of a national emergency upon
a majority vote of both houses, what's called a concurrent resolution. With no
input from the president. After a Supreme Court decision held that this kind of
legislative veto is unconstitutional, Congress I think rightly revisited the
National Emergencies Act. But I think wrongly replaced that prior termination
mechanism with a much more onerous mechanism. Where now not only do you need
both houses of Congress, but you need the president. And so if the president vetoes a
termination resolution, and President Trump has said he would if Congress
terminates this emergency, you need an override in Congress which means
two-thirds of both houses. So at the time it was an enacted, the statute was meant
as a constraint. I think because of the dilution of the termination mechanism
it's now not nearly as much of a constraint as the draft of the statute
wanted and would have intended 43 years ago. More than 30 of the 59 national
emergencies declared since 1976 are in effect. Things like freezing assets
for terrorists or drug traffickers are examples of ongoing "National
Emergencies" as is the proliferation of weapons of mass destruction. What happens next?
The fight over Trump's national emergency declaration could go in
several different directions and all at the same time. There's a short-term
legislative effort to block the current emergency declaration.
There's long term efforts to reform the national emergency act itself and
there's potential for at least one of the ongoing lawsuits to end up before the Supreme Court.