There is definitely a crisis on your southern border, its just that a wall won't solve it. The problem is millions of displaced people that have no where to go and that problem is not going to go away. It is just going to get worse unless reasonable people sit down to find a solution not defined by politics.
I am certainly glad that our southern border is with the U.S.
5
Bad day for the narrative. Hard to deny the recent, major upswing in border crossing numbers. But the idea to correct the National Emergencies Act based on its misuse by OTHER presidents (59 declarations, so far; 31 still active) is very sound.
4
This is really simple. The President needs emergency powers only to deal with emergencies that normal legislation cannot deal with. But that means that all emergency legislation should have a sunset provision. Within 30 business days (days in which Congress is in session) all emergency actions of the executive should expire unless replaced by regular legislation.
ALSO, it is worth pointing out that when Congress first passed the National Emergencies Act it gave itself the power to end an emergency simply by approving a joint resolution to that effect. The Supreme Court took that power away in INS v. Chadha, 462 US 919 (1983) when it disapproved of the "legislative veto." That is why Trump is now empowered to veto a joint resolution. Given that Chadha has now neutered the National Emergencies Act, Congress must act to enact a sunset clause. Again, it's simple!
7
Let's be honest, Trump wants the immigration laws Congress gave us enforced and Congress doesn't.
The Congress requires that "he take care that the laws be faithfully executed." and he can't faithfully execute the laws without certain very modest spending for barriers and other items.
The Irony is that "All legislative Powers herein granted shall be vested in a Congress of the United States,", the Congress does not change the immigration laws Congress has made, and Congress does not change them to something they support.
Congress should either change the immigration laws or help the President enforce the ones we have.
Time to repudiate President Trump and his national emergency power grab to take monies from the Congressional Purse to pay for his border wall. Though Trump has never heard of the separation of powers in our government, never learned civics in school, has no respect for the power of our Constitution, it's past time for our Congress to rebuke Trump for seizing executive power against our will. His act is unconstitutional.
Mr Trump can't manage his own life and mouth; no way should he be allowed to manage every aspect of Americans' lives. Trump's border wall is a nonemergency. Fulfilling a wild campaign promise to his redmeat ignorant base by declaring a national emergency because ("I want to get it done faster!") is demented. The House Judiciary Committee. is looking at the 1976 National Emergencies Act. It will be fixed.
1
If nothing else, Trump has gotten Democrats to rethink the power of the Executive branch.
4
Looking back in time before the National Emergencies Law came into existence underscores what 45* could have meant with his MAGA motto.
[Before the law, a president could declare a national emergency and unlock formidable powers under an array of statutes, giving him authority, according to a legislative analysis, “to seize property and commodities, organize and control the means of production, call to active duty 2.5 million reservists, assign military forces abroad, seize and control all means of transportation and communication, restrict travel, and institute martial law, and, in many other ways, manage every aspect of the lives of all American citizens.”]
The fact that the law clamped down on emergencies didn’t stop 43 and 43.5 from finding a way to manufacture a crisis about WMD’s to invade Iraq and Afganistan. I wondered how that administration could endlessly fund those campaigns by simply notifying Congress without much oversight?
Post 9/11, the Pentagon and many defense contractors and energy companies, as sectors of our economy, must have ballooned in profited since then to date. How much?
I am not big on conspiracy theories, but if 9/11 was not an inside job, where are the holographic plane parts, Princess Leia?
One of our Constitution’s weakest links are the requirements to the office of POTUS with no mention of the ability to obtain and keep any level of security clearance. Justice and the Courts must, as well as members of Congress and the military do...!
1
The National Emergencies Law needs fixing so that never again can an unfit chief executive misuse it - like a fire alarm prankster, trying to get out of class.
3
Yes. Now that the problems are apparent, indeed the current law should be revised to guard against some future abuses.
Trump obviously believes "the king can do no wrong" and that he can rule by decree. Will Congress ever disabuse him of of his hubris?
2
I fail to see how The National Emergencies Act is even Constitutional and I’m surprised it’s never been challenged in the SCOTUS.
I was not aware that Congress has the right to transfer (or allow the transfer) of mandated Congressional duties created in the Constitution as an important check and balance on the Executive Branch to the control of the Executive Branch.
I believe this creates a very dangerous precedent for a partisan Congress to abdicate it’s mandated Congressional duties at whim - as has effectively been the case since Trump was elected in 2016.All of this creates an end-run for Congress around the specified methods for amending our Constitution.
@George Shaeffer
They’re actually not, as some other cases have decided. But this one has never gone before the SCOTUS...no time like the present!
I feel like something that would be far easier than defining what an emergency is or is not is to correct the real problem: the fact that a congressional vote to end the "emergency" can simply be vetoed by the very person who declared it. Why would any president not veto such a measure from congress?
If the law were to be changed such that every declaration of emergency required congressional approval within, say, 30 days or else the emergency declaration were terminated, it would allow a president to act quickly in real emergencies but not give them unlimited power. Imagine if a president could veto their own impeachment. It sounds absurd. Just as absurd as congress getting vetoed in terminating a declaration of emergency.
Democratic Party elected officials are usually reasonable men & women, no matter where on the spectrum their ideology is. Pelosi will fare much better than John Boehner.
I'd like to know how those on the left define and differentiate between a crisis and a national emergency and make their case that the issue is one versus the other.
I gave you a topic. Talk amongst yourself.
1
In addition to clarifying the terms and conditions that constitute a national emergency, any revision of the law should include a sunset provision, so that we don't continue to be in a state of perpetual emergency. Congress should be designated as the entity determining whether to extend an emergency: if they don't, then the state of emergency would automatically expire. The sunset term should be short.
2
Trump is showing us that the government has many flaws. If Democrats gain significant control over government in 2020 then a priority should be the strengthening of our laws.
If Republicans are significantly ousted then it would be a good time - a long overdue time - for amending the Constitution. Obviously we would want little Republican involvement in that. It is, after all, because of the GOP that the Constitution must be strengthened and updated.
@Tracy Rupp
Be careful what you wish for! Amending the Constitution is not effected by a single political party (see Article V of the Constitution for the process). Also, note that calls for a Constitutional Convention (for a complete overhaul) normally come from the hard political right, who see such a move as an opportunity to ban abortions (among other things).
2
Much credit is due to Donald Trump for being the person who blundered his way into revealing that America has built-in levers of fascism that can be activated at a moment’s notice.
Now all we need to do is hope that our Congressional representatives change the law, instead of salivating over the potential to have that same kind of power at some future point in time.
I’m not holding my breath.
1
The Constitution provides the president as Commander in Chief broad powers to protect the nation from foreign invasion.
With hundreds of thousands of foreigners crossing the border illegally, the smuggling of drugs that are killing tens of thousands of Americans a year, and the crime being imported, even Thomas Jefferson and John Adams would have deployed the military to stop it.
The shame here is that Congress refused to address what is in fact an invasion. The number of people crossing the border and getting away with it has decreased, but the number of people dying from the drug trade has increased dramatically, now over 75,000 people a year. More Americans have been killed by drugs that crossed over the southern border than in Vietnam, Korea, and WWII combined. This is a national emergency if there ever was one.
Trump begged Congress to do the right thing in order to avoid using the power he had Constitutionally and by statute. But for strictly reasons of political posturing, the Democrats refused.
If Democrats don't want Trump to use his power, then all they have to do is to pass a bill to fully fund the wall. Simple as that. And in exchange, they could probably get legal permanent residency for DACAs.
Shame on Democrats.
2
@Son of the American Revolution
Unarmed migrants is not an invasion--it isn't "The British are Coming!". That's pure hysterics and not even close to the sudden invasion that the Founders had in mind.
Those drugs are coming through legal ports of entry and the trick is to improve those--Trump's wall has nothing to do with that.
1
Why didn't the Dems and NYTimes critisize this 'power' levied by Congress via 1976 legislation before now?
I realize that we don't ever question any president's actions unless their name is Trump, but when Obama declared a state of emergency in 2009 because of swine flue, it was a huge bondoggle. The State Health departments (had friends working there at the time) and the CDC (ditto) were looking for money in their budget. They didn't want to avert the millions they had for 'favorite' activities, so Obama used this to give them more budget dollars.
The crisis we face to day is much more severe, unless you believe in open borders and the non-fact that all coming in are just really nice people looking to improve the US. But, no one questioned Obama then. He wanted more budget and used the emergency declaration to get it.
PS The CDC fails it's audit almost every year.
2
@Ma
A disease outbreak is exactly the type of sudden occurrence the demands immediate action. Obama's emergency allowed hospitals to set up alternate sites to process the vaccination backlog. Your conspiracy theory is unsubstantiated by anything except your own assertion--hardly sufficient.
1
I remember when Obama did it, I kept thinking, "This is going to backfire big time someday."
2
Yes. Thank you NYT. At the same time Congress should update the provisions of AUF.
1
Better late than never! The Emergencies Act has been deeply flawed from Day One. On its face -- not even defining "emergency" -- the Act reflects the huge unwillingness of our Congresses to take any responsibility for decisive actions that could -- possibly -- prove to be mistakes.
Separately, it is not hard to see emerging emergencies while reading the excellent reports NYT reporters have written -- notably Manny Fernandez's articles, but also other reporters' work -- about life, death and abuse at the USA-Mexico border, about the facts revealed at the trial of El Chapo Guzman, and about the lives and tribulations of would-be immigrants from Guatemala, El Salvador, Nicaragua, and other Central Anerican countries.
The reports of your non-editorial newspaper professionals make a strong case -- as did then-President Obama in 2014 -- that there is a real-life, not imagined, ongoing crisis at the Mexico-USA border. A wall may or may not help relieve the crisis. Trump may or may not be the right person to manage these emergency-level conditions, with Cartels promoting an almost unending guerilla-civil-war.
But we should not pretend the crisis is phony. The denial of it is phony.
Yes, Congress definitely should shoulder the Constitutional responsibilities it so blithely gave away 43 years ago. No, we should not wish away a genuine Crisis just because it is Trump who is calling for action.
1
Blocking this emergency declaration is extremely important considering the personality of this president. Passage will establish a precedent which is a slippery, slippery slope.
Unchecked declarations can dead to dictatorship. President Trump might then press issues with a foreign power, declare police action for foreign intervention, declare a national emergency, and forestall an open and free election therefore ending a peaceful transition of power and he remains president. Just a thought.
@Roger Dodger
Yes keep imaging things that are never going to happen. Trump has been president for over two years and the sky hasn't fallen despite the left claiming that it would fall.
1
There are at least two other significant issues surrounding the National Emergencies Act which this editorial does not address:
1. The Supreme Court ruled that although the Act cedes great power to the President, the Congress cannot cancel a declared emergency with a simple majority. Obviously Trump is going to veto whatever resolution Congress passes, and an override will require 2/3rds majorities in each house.
2. As Republican Senators Tillis and Paul have pointed out, Trump's action sets a precedent to allow future presidents of any party to have more discretion to declare emergencies. And Congressional opinion seems to reverse itself depending upon the party in power. As an example, Sen. Harry Reid held a press conference to celebrate the (temporary) blockage of the PATRIOT Act when Republicans controlled the Senate and George W. Bush sat in the White House. Yet when the Act came up for renewal during the Obama administration, and Reid was Majority Leader, Reid accused Senator Paul of "aiding the terrorists" when Paul requested additional debate on the renewal.
There is probably little Congress can do to prevent a president from declaring a national emergency on anything, as the head of the Executive Branch; however, such an order or proclamation may simply be to emphasize an important event or condition, to direct Executive Branch agencies to focus on particular matters, etc.
Where Congress does need to step in - and change the law accordingly - is to outlaw by statute, even if it duplicate inherent constitutional prohibitions, to specify that a president may not spend funds unless specifically authorized by Congress or in a manner that contradicts the express will of Congress (such as Trump's wall); may not take executive actions that directly contradicts a statute enacted by Congress (such as exempting a class of aliens from the law, as Obama's DACA creation); or otherwise commits the United States to a course of action which requires express Congressional approval.
What an emergency is must be defined clearly. Yes, there are times when things will arise which will require immediate action by the president. and we must allow for that. But approval should be required by an actual vote by Congress (within a limited time frame) not just "notification"; if Congress disapproves then the action must cease.
Writing it will be tricky, but the presidency has acquired far too much power and must be reined in.
1
A really bad idea that can be abused will over time be abused worse and worse. That is what we see here.
Immediately after WW2, the country embraced some of the "lessons" of the war that suggested vast government authority could accomplish great things. It can, but they went overboard, perhaps out of trust in the specific leaders.
Well, in time we got leaders we can't trust, more and more of them, worse and worse of them, abusing us more every turn of the election cycle.
2
As the New York Times is reporting, the Border Patrol is detaining 76,000 border crossers per month, or 912,000 a year. At this rate, the migrant detainee population would exceed the current population of Las Angeles in five year and the current population of New York City in just over 10 years. Of course, 76,000 is just the number caught; the Department of Homeland Security estimates the Border Patrol catches only about 52 percent of illegal border crossers.
In pervious decades, most illegal border crossers were Mexicans, who could be swiftly returned go Mexico after spending only a few days in custody. Today, most are Central Americans who cannot be speedily deported. The Customs and Border Patrol says “The system is well beyond capacity, and remains at the breaking point,” but Democrats claim there is no border emergency.
More than half the migrants are crossing the border in the Rio Grande Valley sector of Texas. This is where Trump wants to add 200 miles of new border fence that the Democrats say is not needed because there is no emergency on the border. That’s absurd. Presidents Clinton, Bush and Obama built the existing 700 miles of border fence; Democrats only object to adding 200 miles of fencing only to prevent Trump from meeting a campaign promise. Their vendetta against Trump has turned a crisis into a. emergency.
9
@WilliamCase. Yes, you have accurately described a crisis at the border and money is needed for that crisis and not for a wall. A wall will not stop asylum seekers who turn themselves in.
5
@Fabienne Caneaux
The Border Patrol says the existing border fence, which protects the California, Arizona and New Mexico borders, has significantly reduced illegal border crossings. It stopped a caravan of thousand of asylum seekers at Tijuana. The fence will also work in the Rio Grande Valley.
3
@Fabienne Caneaux
"A wall will not stop asylum seekers who turn themselves in."
Expect that not all these poor downtrodden folks are asylum seekers. Most of the folks trying to cross aren't asylum seekers and most of the folks that are making that claim aren't but instead just are repeating the words that they've been told to parrot by the left in order to slow down their deportation.
3
Actually, Trump's declaration is dangerously close to facing a veto proof majority. 15 Republicans have signaled opposition on constitutional grounds. That might not translate into votes. However, we're within striking distance of a two-thirds majority in the Senate at least. What happens in the House could change depending on the Senate vote.
Right now, McConnell is desperately seeking a way to amend the resolution and sending it back to the House. The law needs amending but this is not the right way to do it. McConnell is simply trying to save Trump from embarrassment.
If Democrats were smart, they would introduce a House bill right now amending the Emergency Act along the lines Republicans are suggesting. Lamar Alexander, among others, suggested a time limit on emergencies.
As I've mentioned before, we do the same thing with military authorization. The president can execute war for 30 days without going to Congress. If Congress doesn't approve within 60 days, the President has 30 days to with draw. 90 days total. Seems like a fair enough standard.
The House introduces a time limit. The Senate passes the veto proof resolution. The resolution goes back to the House for a veto proof vote. Trump's emergency officially ends. We pass the time limit bill by the same margins. Everyone saves face and it's up to Trump whether he wants to try declaring a second emergency. Done.
The Supreme Court has not had occasion to review the constitutionality of this bill. It has also never ruled that the executive cannot declare a national emergency on its own. Even in Youngstown v. Sawyer the Court simply limited the executive's reach when declaring a national emergency. I can see the Court using Youngstown as precedent on the question of separation of powers. I simply don't expect that the Court will ever limit the executive's right to determine what is a national emergency, especially this Court.
Websters defines Emergency as follows"
"An unforeseen combination of circumstances or the resulting state that calls for IMMEDIATE ACTION"
"An urgent need for assistance or relief"
Several news reports in the Times during the past few days DO CONFIRM that there is a "crisis" at the border that OVERWHELMS OUR BORDER AGENTS and OUR SYSTEM OF LAWS to the point that THERE IS A NEED FOR IMMEDIATE ACTION to provide assistance or relief.
So, Congress does not have to define what an emergency is when Websters and other cohorts have done so for us.
Also, the Times has chronicled how women "pay with their bodies" to Coyotes, thereby compromising their lives and dignity. We need to do all we can do stop this from happening going forward.
A wall may not stop this madness but will certainly put brakes on the momentum that is leading to this crisis.
So, I say do what it takes to #BUILDTHATWALL
1
The NY Times Editorial Board is foolish to justify revision of the National Emergencies Act by using Trump’s border declaration as its prime example of how the law is broken. The Board says Trump took advantage of the act to declare a border crisis “contrary to all evidence”. Well, the evidence is on the front pages of the Editorial Board’s own newspaper. The NY Times yesterday, and still does today, describes our southern border as “at the breaking point” with record numbers of Central American families flooding into the US in February, with even more expected this spring. That sounds like an emergency to me and it sounds like one to most people in this country. Democrats, aided by editorials like this in the media, continue to look like they have their heads in the sand. Or that worse, they are encouraging illegal immigration. I guess they no one has learned the lessons of 2016 after all. The issue of illegal immigration put Trump in office. And it will again in 2020 too if Democrats don’t come up with real solutions.
@John
It's at the "breaking point" because we need more capacity to process asylum applicants. That means more courts, judges and holding facilities; it doesn't mean a wall.
The Supreme Court is soon to face the biggest challenge to its legitimacy in rulings on the emergency statute and on Congressional oversight demands. Its challenge will be answering the question where does its customary deference to the president end and its endorsement of presidential supremacy to the law begin.
With five male Catholics making up a majority, I have my doubts whether they are temperamentally, philosophically, or judicially able to justify any restrictions on the person whom they are likely to view as the democratic Pope.
1
@Michael L Hays Maybe; maybe not. From what I've read, most Court observers think the conservatives will rule against Trump. It's happened very often before that justices buck the person who appointed them.
The basic problem with the current emergency bill is that the President can veto an attempt by Congress to withdraw support for emergency.
The bill should be redrawn to require the congress to approve an emergency in one months time. This way the President could act quickly in a true emergency, but congress could have a veto proof way to shut down a phony emergency like the one Trump has declared on our border
1
He should have quit while he was ahead when he won the nomination for the party he went on to destroy. Someone should have told him that eventually all his illegal dealings, lies and crimes would be uncovered. What a shame that so much time and taxpayers money is being wasted exposing this fake president whose BFF are autocrats who he believes over the intelligence community. He hasn't a clue how to be Presidential, but he does know how to be a vulgar clown. This entire administration is a sham and a disgrace.
2
American paper headlines today screamed about a crisis on the Southern Border. Illegal arrests up 98 percent. Looks like Trump was right afterall.
Trump's the victim here. He's all about making congress the bad guy. He'd say: Look at what they made me do, folks, can you believe it? Only I care about you. Trump, like Nixon, who are men with certain "issues", they don't care about what some law IS. It's about what is can be made to look like. Nixon said, “When the president does it, that means that it is not illegal.” Oh, and Nixon was a lawyer.
This is just the latest example of the fact that the US President, no matter who he/she is, has WAY TOO MUCH power thanks to Congress over many decades shirking its duty to make decisions.
The solution will only come about when we elect people to Congress who are ready, willing and able to make (oftentimes hard) decisions instead of constantly punting the decision to the President who has been all to happy to oblige the Congressional cowardice and gather ever greater power into the executive.
12
@William Kelly
Newspaper headlines in America today scream about a human crisis on our Southern Border. Illegal arrests up
almost 100 percent and 78,000 last month. That's a national emergency no matter how you define it. We can't handle the influx which is expected to increase.
1. "The National Emergencies Act ended that regime, established limits on the duration of national emergencies and put an end to four longstanding emergencies — one of them dating to the start of the Korean War that the government had used as late as 1972 to justify actions in Vietnam."
Let's not long forget ... Gerald Ford was a Republican. He ended "that regime".
2. 76 thousand illegal immigrants crossed the border into the United States this month alone (as per NYT); therefore, it seems like there is some problem/emergency/crisis at the border.
3. This article leans so hard left it could be Beyonce (to the left, to the left).
I wonder if some "powers" are encouraging migrants to cross the boarder illegally to prove the "attack on America" requiring a "wall" to protect us? DJM
This is head spinning.
Trump said he wanted a wall because he said there was a crisis at the border.
Pelosi said there was no crisis, along with the rest of the Democrats in Washington (I am a Democrat). So did fact checkers and editorials from the Times and other places.
Then today comes the report of "staggering" numbers of migrants (WaPo's words) at the border. It's a front page story at the Times.
So now the crisis that wasn't one is one. But Trump calling it an emergency is so egregious that the law allowing him to declare one should be revoked.
I understand if you don't want a wall. But you can't say it's because there's no crisis and then say there's a crisis. And then say but that doesn't mean it's an emergency, so you'll remove any president's power to declare one.
24
@Talbot, And you're saying the best way to deal with this immediate and temporary crisis at our border is to start building a wall that won't be completed for a decade if it is started at all. Illegal border crossings are at a 40 year low. If Trump had any brains he would be touting these numbers and taking credit for the decline. But he doesn't want people to be happy and secure, he needs them angry and fearful. It helps if they were that way before he came on the scene.
15
@Rick Gage I'm not saying that or anything like that. But you're putting words in my mouth and saying it's a stupid idea.
9
@Talbot
It's an emergency if it requires action within hours, or possibly a few days. Otherwise, the President has to go to Congress to get authorization. The border situation is not a matter of hours or days, it's the result of long-term inaction, it calls for Congressional action (long overdue) to increase our processing capacity for immigrants, and it is not an emergency.
14
In the artwork showing a suitcased-Trump, I wasn’t quite sure what was seen in the lower right corner of the suitcase—
Could they be giant bone spurs that finally ruptured out of his shoe, as he doesn’t wear white socks with his long runway red tie and white shirt.
1
Leave it to Donald Trump to find a way to use an old piece of legislation, flawed, and bring it out of the closet so he can use it for his own selfishness. All those presidents before him, perhaps thought of it, but wouldn’t do it. But he crosses that line of “why not” when he can.
Maybe we should be thanking him for his untoward ways. If there’s something sneaky, he’ll fetch it so we can fix it.
1
@MIMA You make it seem like he got it out of mothballs, when in fact Obama, Bush and Clinton all used it as well. At least now maybe Congress this ability of the Executive to make de facto laws.
"based on observable facts." That's a landmine with this current administration.
And it's also not just Trump and the National Emergencies Act, it's both Houses of Congress and, yes, the Constitution.
Nothing lasts forever. Even the bible has been rewritten and re-phrased time and again. That revolutionary template of manufacturing, the Model T, no longer rules the road.
Without change, the United States is not going to last even the average lifespan of those democracies that preceded us.
There is a national emergency. Bet your belt buckle on it.
But it is not the southern border, and it is not even that Donald Trump is an ignorant, preening caricature of the worst possible president that a fiction writer could imagine.
No.
The emergency is that Republicans have systematically taken a wrecking ball to democracy.
Republicans love rules, values and morals, when it comes to policing the behavior of democrats, women, immigrants, liberals, environmentalists, do-gooders, non-white ethnic groups, gays and lesbians and young people - in sum, the unwashed masses.
But they feel the rules should not apply to them. Worse, they feel they win when the public buys their lies, when they systematically suppress voting, when they demonize and marginalize the poor, the brown, the people with accents.
They substitute lies for facts, and repeat them with propagandistic zeal.
They want purity.
They want blind loyalty
- an acidic combination that, at a minimum, erodes the foundation of society and fosters hate and violence.
Trump is a fearsome, cartoonish manifestation of the emergency. The great manipulators- Lee Atwater, Roger Ailes, Newt Gingrich, Karl Rove, Dick Cheney, the Koch Brothers, Fox news, Rush Limbaugh and others of their ilk - they have created a virulent, post-truth political base. They have infected the body politic.
They are the emergency.
The National Emergencies Act ("NEA") imaginatively reconciled the Constitution's demand for separation of powers with a national 'need for speed' (the need to respond quickly to emerging crises), by empowering Congress to unwind a Presidential "national emergency" declaration through a two-house, majority-vote ‘legislative veto’ (not subject to Presidential veto). The NEA called this a "concurrent resolution".
That put the President in the same Constitutional position as if Congress could instantaneously consider any Presidential request for authorization to address a perceived crisis: In that instantaneous hypothetical, no "national emergency" could be declared unless a majority in each House voted in favor of the requested authorization.
Then in INS v. Chada (1983), while declaring unconstitutional an unrelated ONE-house ‘legislative veto’, the Supreme Court extraneously remarked that a two-house ‘legislative veto’ wouldn't have worked either. Law professors call this “dictum” [short for “obiter dictum”] – a judicial observation not actually binding as legal precedent.
Inexplicably, Congress took that dictum to heart in 1985, amending the NEA by converting "concurrent resolution" to "joint resolution". As a result, Congress’s ‘power to unwind’ is now subject to Presidential veto.
Had Congress ignored the dictum in Chada, today's Supreme Court might well have supported as Constitutional the original NEA's innovative solution to the 'need for speed'.
Thanks for the late-PM lob down the middle of the plate – a perfect nightcap...
A National National Emergency Emergency...
Or is it...
A National Emergency National Emergency...
In either case, I’m shocked – SHOCKED...
Round up the usual suspect...
Good Night and Good Luck...
Congress does not have to be slow to act. They declared war on Japan one hour afterFDR spoke on Dec 8th. Years ago they were able to grant citizenship to some foreign athlete in two days so they could participate for the US in the Olympic’s.
This whole thing reminds me of the elders of Israel who demanded a King because they didn’t want to act. (1 Samuel 8)
1
Totally apart from Trump himself, and apart from this immigration issue, I abhor Trump's declaring this a national emergency because his doing so strikes serious blows at critically important key constitutional support beams holding up our country. Although I believe that Trump will wisely decide not to veto the joint resolution of Congress that is about to hit him, I hope he does veto it. Because then the issue will quickly be placed before the Supreme Court and what happens there will be a great civics lesson to the huge number of people in this country who apparently need it, including Trump. And once that is done with, Congress must revisit the law itself, just as these comments from the editorial board of the Times wisely recommends. And that legislative debate will be a second much-needed and highly valuable civics lesson as well.
2
I’ve often said or typed this: Trump is showing us just how out of control the executive branch is, both when republicans have power and democrats do. Let’s hope Congress can get its act together and rein in some of those delegated powers.
2
@Joseph
Trump is only using the powers that Congress gave him. If they don't like they can change it. Too simple.
1
The notion of a national emergency was born out of war, hot and cold. World War II, for example, was a true national emergency and required massive mobilization and sacrifice. Thus, the extreme measures cited in the article.
The concept of a national emergency shows the danger of a permanent state of war (and militarism) to a democracy. Congress tried to limit the president's power even though the country was yet in the throes of the Cold War.
Jump to today. Although the Cold War is over (except for Putin and nationalistic Russians), American paranoia and fear are still rampant. Like anti-intellectualism, fear runs deep in the American psyche. Congress would be wise to close loopholes.
1
The author's 'allowing a president to declare emergencies only when threats to the national interest are imminent and based on observable facts' still creates a situation where those are in the eye of the beholder. One man's uncontrolled migration is another's indentured workforce.
Let's get our priorities straight and let's retire the electoral college. It's how we got into this mess.
I have less of a problem with Trump's order than the NYT but have far more of one with the systematic erosion of the power of the legislative branch to the executive since the New Deal and possible before. Emergency powers, undeclared wars, unelected bureaucrats making laws. The founding fathers envisioned a far stronger legislative branch and a weaker executive than we have today. Presidents of both parties have taken more and more power with little pushback from congress for decades.
6
Like the War Powers Resolution the National Emergency Act's purpose was to politically shield a cowardly Congress from being held accountable - outsourcing the political "heat" to the President. Both should be repealed in full.
4
Seems to me a simple approach could be:
1. President declares emergency (because Congress is to slow to act)
2. Congress has 18 days or 30 days or some reasonably brief be deliberative period of time to vote a simple majority in support of the “emergency”.
3. If both houses do not vote in support of the emergency then there is no emergency. If both houses support the emergency declaration then the President’s desired actions/remedy remain in place for 90 days (?) while Congress arranges suitable legislation to adequately address the emergency in a longer term solution
@Jeff Smith
I agree that allowing the President to veto congress's vote overturning the emergency declaration is absurd, but we're stuck with it. The Constitution specifies that all votes and actions by congress are subject to the veto.
I'd argue that in this case congress is granting a power to the President so they can set the framework for how that power should play out but I don't think the courts would agree.
@todji
I believe the long-standing power of the President to declare an emergency is an outgrowth of the theory that the executive, as a replacement for a monarch, potentially retained the prerogative power inherent in a monarchy.
Since statutory overturning the emergency powers of the presidency, something of long-standing existence and use, would be an attack on the previous understanding of how our system works, and any legislation would be subject to a presidential veto anyway, such a statute could not be written without the President insisting upon assuring the continued existence of a vigorous emergency power. After all, all Presidents are institutionalists when it comes to the rights of the presidency.
@todji I guess indeed technically the only way they can vote on something is if it is a Bill. So a process by which the Presidential declaration instantiates a Bill. Congress votes. If it doesn’t pass then the emergency declaration doesn’t stand. The Bill didn’t pass thus there is nothing to veto.
I’m certainly not a Constitutional lawyer and nothing simple ever seems to be how legislators like to do things
Power corrupts. When someone already corrupt gains enormous powers, there are few limits to their predation, greed, whims, and malevolence.
The founding fathers pledged their lives, fortunes, and sacred honor to the cause of American independence.
The United States Constitution they drafted with great care sets limits and defined a system of checks and balances to protect this country from exactly what is now happening: a tyrant who abuses power and denies the rights of the people.
Further, he is violating Congress's Constitutional power of the purse, gratuitously misusing the military, and essentially stealing monies already legally appropriated for military construction to erect a vanity wall. It involves seizing the lands of thousands of American farmers, ranchers, Native Americans, and other private land owners and detaining thousands including children.
The last president popularly elected twice by large majorities of people once taught Constitutional law. Will he be the last president who honors the Constitution?
As a French monarch who claimed absolute power claimed: After me, the deluge.
4
@SMB
Our last president nearly lost some of the power of recess appointments by trying to force recess appointments upon the Senate when it was clearly still in session. The well-reasoned argument by the DC circuit court that potentially reversed the practice of the previous 100 years that the President could use a break of more than ten days to make a recess appointment, required the Supreme Court to intervene and return the situation to its previous place.
@SMB
Trump is only using the powers that Congress gave him. If Congress doesn't like they can change it today
The example of Puerto Rico would not be rectified by these suggested changes to the Emergency Act. There is little doubt that it was and emergency but not treated as one sufficiently and for political reasons, namely it's populated by brown people.
What is to stop another president from failing to declare an emergency in, for instance, a state dominated by the other party, or for pulling money and resources by declaring an emergency that isn't one also to curry favor?
I realize that congress is the slower, deliberative body and not the best arm of government to declare an emergency but there needs to be a check on the president's failure to call an emergency so situations like Puerto Rico don't happen ever again and checks to ensure that emergencies are not political footballs to be kicked around by a rogue president using the Gingrich weponization of anything to grab power.
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@no one special
The Federal government poured tens of thousands of tons of supplies into Puerto Rico quickly and efficiently but not initially enough service members because the Federal Government did not anticipate the horrible condition of the roads and electrical distribution system and that it could not, therefore, rely on the local leadership to be able to properly distribute the aide piling up in the ports.
The problems which became so evident in Puerto Rico in the aftermath of the hurricanes in September 2017 had been building for decades. Race had nothing to do with it.
An emergency needs better definition as suggested here. It should only last as long as it ought to take Congress to pass legislation that addresses it. 90 days seems ample time. But also, there needs to be a neutral third party that can arbitrate as in the current situation. Giving the president veto power as if passing emergency legislation or objecting to it as if it was simply another bill puts us right into the current situation. As we’ve seen too often in the last 2 years, there are no “objective facts” where this administration is concerned. It brings its own “facts.” Thus the need for a third party. But where do you find such a beast?
1
The National Emergencies Act seems to be clearly unconsititutional as applied by Trump. But we shouldn't have to rely on the courts to avoid this sort of constitutional overreach. The act should be revised to set parameters on the definition of "emergency." In addition, the act should provide that any emergency declaration made under the authority of the act will expire automatically after 2 weeks unless Congress passes a bill authorizing the "emergency." Any such Congressional authorization should only last 60 days before expiring.
The whole point of giving the President emergency powers is to allow the President to act quickly when Congress is too slow to keep up. Emergency powers should not be used as an end run around the normal process for enacting legislation.
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@James Grosser
So that's where we are at? Constitutional for me but not for thee.
@James Grosser Congress declared war on Japan less than 24 hours after Pearl Harbor. It can and does act quickly when there is a real, verifiable emergency. The power to do so resides in the legislative branch.
For years Congress has been passing along messy policy issues to the Executive Branch, now suddenly they get Constitutional?
Exhibit #1. Immigration reform. The issue is far too important than a solution to the Parties of Incumbency
1
once again, the media can be satisfied with just a symbolic head-fake in their direction instead of a meaningful action. Oh sure, we all know that it won't pass, and that the republicans who will vote for it are the ones worried about a challenge from the center, and the ones who will vote against it are the ones worried about their right flank, but at least we're all getting the symbolism we want! Democracy!
1
Against the backdrop of a rampant trend towards excessive misuse of executive authority specially of emergency powers, not only is it time to review and fix the flawed emergency clauses of the constitution but to give effect to serious legislative checks on future misuse of such powers vested in the ececutive. It is in this context that the Congressional resolve to go ahead with the joint bipartisan resolution to overturn the Trump declared border emergency assumes importance. This should be followed by a serious bipartisan dialogue which can lead to a consensus on the review and fixing of the national emergency clause of the US constitution.
8
I think that any law giving the president or the congress the discretion to toss out entire sections of the Constitution for hazily defined reasons is itself unconstitutional in the most basic way. The entire emergencies law should be examined and probably tossed.
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Maybe we need to go back to Justice Potter Stewart’s statement about pornography “ I can’t define it, but I know it when I see it.”
Well, most “thinking” Americans may not be able to put into words a precise definition of what constitutes “a national emergency” but I think they (and Congress) know one when they see one, and despite Trump’s lies and fearmongering the “Wall” does not qualify.
I would say however, after watching more of Trump’s CPAC speech last weekend, and without meaning to be facetious in the least, that having such a clearly unhinged individual in the Oval Office really does qualify as a national emergency.
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The '76 statute had flaws, but it also had a key check on the president's power, in the legislative veto. By passing a concurrent resolution, congress could overrule the president with a resolution he could not veto. It also ruled out the senate filibuster. That was ended in '83 by the supreme court in INS v Chadha which gave the president veto power and undermined checks built in to this and a bunch of other statutes. Without that SC decision, the resolution that's shortly going to pass would have ended this. I think that's a pretty key piece of information for an article on this topic.
I also think the fact no other 'emergency' has resulted in a congressional attempt to override is a reflection of trump's unprecedented abuse of the statute rather than congress's failure to conduct oversight.
Clearly though, it does still need fixing and should have been fixed in '83. I'd suggest the statute bring the legislative branch back in by requiring congress to be called into emergency session within a week to confirm the declaration to take the veto out of the equation again, and also subject the declaration to judicial oversight on the facts to determine it's truly an emergency that can't be dealt with by the normal processes. You can't really define in advance what an unforeseen emergency will be, or even all the things it isn't, but you can take the decision out of the hands of the executive alone.
7
The idea of sending the emergency declaration back to Congress for confirmation is excellent, but the time span suggessted (within one week) is probably too short, depending on the nature of the emergency and the moment. On the other hand, there is no doubt that now is a great time for repairing that law: enough Republican conservatives are worried of what a progressive President could do with it that there is a good chance of getting them to participate in a bilateral action.
8
You’re never going to be able to define what constitutes an emergency— there are too many possible circumstances to list them all. Instead, Congress should define what is NOT an emergency. And first in line is when the President wants to override what Congress has done. If the President wants to reverse Congressional action, he has the power to veto. Declaring an emergency instead violates the limitations of the veto power.
12
Flaws? Well, if you call unconstitutional a flaw, then yes. The Congress cannot sign away its constitutional rights and responsibilities. Congress decides on where and how money is to be spent. Period.
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@Marsden Whinney
When the President declares war, he dictates all manner of Congressional spending. The Constitution contemplates that in true emergencies, Congress will yield its power over the purse.
3
@michjas
The President does not have the power to declare war. That is another Congressional power that has been de facto usurped by the Executive. As far as I can tell, the last time the US declared war legally was after Pearl Harbor.
2
Congress declares war, not the president
1
As I read this editorial, I thought about the best ad I've ever seen selling billboard advertising that I saw by the side of the highway tonight - Use Your Outside Voice! - it bellowed.
It made me think - we use our voices in these pages to protest Trump's crimes, his lies, his environment-destroying deregulation, his racism - and we've called him out, loud and clear, for abusing the framers' separation of powers to declare a border emergency where there was none before he took office (and I mean took with Russian help, not elected).
But the Democratic Party is so divided that we won't stand with one voice against Trump. We're squabbling, disorganized and actively undermining candidates who are not to progressive enough or moderate enough. But we all know that every single Democratic presidential candidate is better than Donald Trump by a landslide. Every single Democratic commenter here knows it. But if we don't use our outside voices, all together, Trump is going to walk right in and take 2020.
I don'ttakes how progressive you are or how centrist you are or how progressive the ultimate Democratic nominee is or how corporate they are. We need to vote for the Democratic nominee to get Donald Trump out of office. We need to restore the most important voice we have - our vote - and we can never take it for granted again like we did in 2016.
Use Your Outside Voice to protest Donald Trump - our national emergency - and vote him OUT of office.
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@common sense advocate
We, as a country, were as you describe when Pearl Harbor was bombed.
So how did that turn out for Tojo?
Now we have Tojo in the Oval Office. But as Americans all we can take him down also.
Despite everything to the contrary we are still the UNITED States of America.
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@common sense advocate
Well said! Democrats must pull together or they will lose and their individual rights and interests, whether trans rights, pro life, climate change, school funding, black lives, tax reform, gun control, etc. will continue to be whittled away
Let the nomination process work out and then stand together.
2
@Texexnv
According to a history book I read, the Japanese attacked Pearl Harbor and then declared war. Apparently they were afraid that if they declared war first, news would leak out and the sneak attack would not work.
I can see were the changes in the parameters may lead to problems when the Dems take over in 2020. They just may have to use what is there to clear up some of the huge problems that t-Rump has laid on the country. Just saying.... It could also backfire.
4
Remember a few years ago when Republicans were all decrying President Obama's "imperial presidency," for bypassing Congress by his use of executive orders? Every Republican repeated this talking point for years. Of course, the fact was Obama issued fewer executive orders in eight years than his predecessor, George W. Bush, and had the lowest average since Grover Cleveland. Not only that, should President Trump be reelected and stay on track, he will surpass President Obama.
I bring this up to give additional perspective on President Trump's use of the National Emergencies Act to bypass Congress. Mr. Trump is the most authoritarian, anti-democratic President this country has ever seen, and one can only hope, ever will see again. Unfortunately, the only reason Republicans would amend the Act is to prevent a Democrat in the White House doing exactly what they currently support President Trump doing. Their support of Mr. Trump's misuse of this law is shameful and hypocritical in the extreme.
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One could argue that Obama was forced to use executive orders to get things done when Republicans controlled Congress and our government was gridlocked. But for the first two years of Trump's presidency, Republicans controlled the House, Senate and White House, and Trump still governed with executive orders. Those who believe executive orders have been overused should find that way more offensive.
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@Thomas Lynch
Excellent point. The Republicans attempted to make sure President Obama could get absolutely nothing done, and then used that to say he was ineffective. When he turned to executive orders (always staying within the limits of his powers), the Republicans then said he was acting like a king. That is a far different situation from what President Trump faced his first two years in office.
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@jrinsc
Trump is only using the powers that Congress gave him. If they don't like they can change it. Too simple.
1
Speaking of the cynical use of executive powers - The Trump administration also levied tariffs @25 percent on Canadian steel and aluminum in the name of national security - a bogus excuse for a punishing action with tremendous ongoing consequences for US/Canada relations -
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@Leigh Like what? Are Canadians rushing the border and throwing their milk, cheese, gravy, soft wood products, and metals at us? No. I say, “If you can’t stand up to Canada who the heck will you stand up too?” The answer is obvious- no one. Join me in cheering for the USA.
Long overdue editorial.
Yes, Congress in its desire to remedy one bad law created another. The very vagueness of the National Emergencies Act presupposed that any person elected president would have the common sense and sense of honor to know what constitutes an emergency.
Enter Donald Trump who never met a loophole or flaw in a law that he wouldn't exploit. While other presidents who called on this Act did so for worthy reasons--budding epidemics, weather disasters, severe droughts, terror attacks, food shortages, and the like--not so this one who cynically exploited the Act's general language to do an end run around Congressional funding.
The law requires clarification, if nothing else to "Trump-proof" its use for only genuine emergencies.
In fact, Congress would do well to revisit the language of other executive powers that might be misused by a president for his own political ends.
Wouldn't it be something if one positive thing Donald Trump ends up doing is forcing Congress to amend other vaguely worded laws to prevent future presidential power grabs?
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@ChristineMcM Please send your thank-you notes to DJT at the White House. He is just exposing poor Congressional policy making, bill drafting, and oversight. And somehow he’s the bad one here? I blame Congress solely for this mess. If they had read the very Constitution that they claim to protect and defend they would see plainly that the founders NEVER TRUSTED ANYONE with Power. So why did the Congress post-watergate entrust the President with these vast powers? Because they didn’t want to be the ones on the hot seat and making the tough, quick calls needed in the middle of a storm. Furthermore, this problem has been a very well known political science topic since the 1980s...this is no surprise . It’s like saying you’re surprised people gambled in Casablanca. Everyone knew this law had major flaws and for a very long time. But why fix it? Why take the time, resources, and attention away from other things? It just wasn’t a priority. The current attempt by left-wing media to act shocked is either deceitful, shows their general ignorance, or their complete lack of interest in policy. Caught out as morally bankrupt again. So here’s a free one for you - look at the Stafford Act and the power it gives for Emergencies and Major Disasters. It also allows President to dish out money for pretty minor events. Let’s see what happens next. But one thing we can’t be is shocked.
3
@Jay Sax; The only thing that shocks me is that our founders never envisioned a man quite like Donald Trump. And neither did our Congress in 1976, which they should have given the Nixon experience.
There are tyrants and then, there are tyrants. The one currently "governing" in Washington views every single action or speech he gives as an attempt to hold on to political power. That photo of him hugging the flag makes me want to barf. DJT doesn't care one whit about this country--he only cares about himself.
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@Jay Sax
I read that in the 1940s the world's greatest expert in logic, Kurt Goedel, applied for US citizenship ( he had been a war refugee from Austria) . One test question at the time was whether the Constitution had flaws that would make a dictatorship possible. The "correct" answer was no, the Constitution was perfect. But Goedel, being logical, started pointing out flaws that would allow possible dictatorial behavior. Albert Einstein, who was at the hearing, hastily vouched for Goedel and the citizenship request went through.
People need to stop deluding themselves that we have a perfect system.
5
I beat you to it. A month ago I sent a letter to my three federal representatives and asked them to think a little smarter about that Resolution of Disapproval. I asked them to REPEAL the NEA.
If you're old like me, you've been waiting a long, long time for someone to step forward and end the Imperial Presidency. That phrase was used a lot with Nixon. It just got worse.
It's time. All this jawboning just proves to me that the Dems and the Republicans are on the same page with this problem, which is to say they are part of it.
11
Congress doesn't care about legislating anymore. Our representatives and senators only care about being reelected. They are perfectly happy to have the president make all the decisions. That way, they can jump on the bandwagon if those decisions are correct or criticize them if not. They won't change the 1976 statute, because they don't want the responsibility of actually deciding anything.
19
@J.S. OMG! Someone paying attention to the real cause of the mess...the self-serving, know-it-all politicians who are risk averse bandwagon riders. You are my Citizen of the Day. We need to demand more of these all hat and no cattle politicians.
When a statute does not define a key word, the dictionary definition of that word is used to explain the scope of that word. There is no dictionary definition of the word "emergency" which encompasses the situation on the border.
Narrow the scope of the Act? Do you really believe Mitch McConnell would bring the House bill up for a vote? And if he did and it passed, do you really think Trump would sign it?
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@Bob
Why does McConnell have the power to decide whether the Senate votes or not? Another flaw in the system.
Bills don't need Trump's signature. Congress can override a veto with a supermajority.
2
Sadly, this careful discussion of the national emergencies law will come to nothing. Republicans know that, between the Electoral College and the Constitutional composition of Senate members per state, Republicans can rule as a minority indefinitely.
But let's consider what will happen without such a change to the national emergencies law. The Supreme Court will again defer to Trump with his "national emergencies" declaration that is based on absolutely no facts. Recall that this Court handed him a victory for his Muslim ban without any proof whatsoever that terrorists have come from the banned countries. Regardless of Justice Roberts' protestation to the contrary, this is very much a Republican court.
But their rulings kowtowing to Trump will cause significant damage to our nation far beyond this particular declaration. By so ruling, the court will be enabling this country's first dictator. Once he understands he has unfettered power, he will declare emergencies in any situation that will guarantee his indefinite reign. Already he has said that he does not believe the 2020 election will be legitimate, and he has sent out toadies such as Kayleigh McEnany, who said on cable news shows that Dems have "zero chance at winning legitimately" in 2020. Ms. McEnany is doing nothing but sowing the seeds of distrust in our electoral system, further enabling Trump to remain in office indefinitely. He will not go quietly, and this ruling will hand him the keys to the kingdom.
20
Congress needs to stop punting difficult political issues to the Executive and restore their own power. Immigration has now been the topic of two massively unpopular examples.
Congress needs to address asylum and legal as well as illegal migration holistically. The migrants now understand the system well and come en masse via coyotes. I don’t think a wall solves that, but it can help along with policies
10
Congress abdicated much of its power, and let's face it - the members of Congress have given themselves permanent positions while ducking the responsibilities that were envisioned in the constitution.
I don't see them turning this around, and if they did try SCOTUS and the Justice Department are now lackeys for the GOP. Gerrymandering, voter suppression, Citizens United... They have given away our country to the 1% who can buy citizenships in other countries if things get too bad here.
12
The U. S. has declared 58 National Emergencies. 31 are still in affect. George W. Bush declared 13, and Barack Obama 12, most of which are in affect. Many of the above of those two Presidents have to do with blocking of property relating to a foreign entity in relation to a situation of violence, criminal, or civil rights of the populations in these countries. The length of time is from 3 years to up to 17 years, that they are in affect for, and most seem to be necessary, if you look at the issues that too many people around the world find themselves in, by way of their own government.
3
@MaryKayKlassen It is effect, as I used affect a number of times, and it was the wrong word. Thanks.
2
@MaryKayKlassen
I love that you're (or is it your?) apologizing for a word-usage problem. Most readers of comments sections accept that there (or is it their or they're?) are going to be these types of issues. As long as the meaning is clear, I don't think too many people are bothered.
1
There is in Washington a theory, "the unitary executive theory", that holds that the president is all-powerful, above any attempt to limit him. It took flower in Justice Department memos written by John Yoo, David Addington and others during the Bush/Cheney reign. It far exceeds powers granted by the 1976 act and emergency declarations that followed.
I think Congress didn't object because it relieved them of doing much beyond favors for donors and constituents. They've done the same with our many national 'emergencies'.
As long as we are addressing the Emergency Powers Act, we should finally drive a stake into the heart of the 'Unitary Executive' movement, too.
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@Charles Tiege I'm glad you brought this up. This theory undermines everything that the founders did to circumvent the rise of a king or tyrant on these shores. Far from mirroring founder intent in our constitution, this "unitary executive" theory is simply unbelievable. It leads to such things as "a president can't obstruct justice, because he's in charge of all justice." It boggles the mind, and when you consider the nature of the president currently "governing," it's a recipe for disaster.
5
I said a long time ago, and recently wrote a college paper on, a benefit of Trump as president is that Congress will finally check presidential power.
You're welcome, and apology accepted.
Way more benefits to Trump as president. That was just the first one.
5
An "emergency" only has to do with the time available for normal procedures. If you've tried the normal procedures, it's not an emergency.
Furthermore, the acts that can be done in the interim must still be acts authorized in the law. It can't be legal unless it's legal.
9
Don't fix it. Rescind it. In fact, it's not clear to me that the law is even Constitutional as written. There is no authority given to Congress to transfer any of its delineated authority to the Executive Branch.
17
@John Unfortunately SCOTUS did transfer its delineated authority and that transfer was upheld in a ruling that is as despicable as Dread Scott. It is J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928). It repudiated the non-delegation doctrine - Congress could now "outsource" its Art 1 Sec 1 legislative responsibility to the Executive Branch and avoid accountability. This decision is the root cause of the "imperial presidency." Strangely to some the "conservative (I prefer originalist/textualist) Justices are most intellectually aligned with reversal. They just need to get RBG on board.
Yes, there certainly is a national emergency here.
It's name is Trump and the Senatorial cowards who follow him in lock step.
94
I would argue that the Emergencies Powers Act is unconstitutional in that it transfers congressional powers to the president. Since the powers of each branch are outlined in the constitution, any realignment of such powers should require a constitutional amendment. Also, if the president gets to decide what an emergency is, then a would-be dictator could, with the support of just 34 senators, essential destroy American democracy by simply saying that the country faces an emergency due to "extreme left" or "extreme right" politicians. He could then fix the problem by removing all such politicians from office. He could also replace any justice on the supreme court who did not support him -- using similar reasoning. It's extreme of course and there would be outrage but by this time the president would have put in place military leaders who pledged to support him. And, in terms of justification, one could argue it was all legal using the Emergencies Powers Act.
3
@Texexnv
The packing of the Supreme Court is a long term emergency.
America needed Trump.
He is bringing the weaknesses in our system into specific relief. Because of him, we know where the holes are.
If we don't patch them, the consequences are our fault, not his.
34
@R Mandl Don’t hold your breath. After every election people yell blue murder about the Electoral College and how it makes a mockery of the democratic system, how it is glaring anachronism and totally unfair and inappropriate in this day and age.
Has anything been done about it? Have you heard anything about it lately? From either party? Of course not.
Yes we know where the holes in the system are, but neither party takes “Democracy” very seriously and is prepared to patch them. Seriously!
@R Mandl
Indeed, Trump has been a hurricane blowing away first the rotting pieties of the Republican party and now all of "the weaknesses in our system" as you say.
I agree with all these measures and I agree they should apply to all Presidents, however, to put into law a stipulation that an emergency must adhere to "observable facts" will, hopefully, only apply to Trump. May he be the last President to have a problem with "observable facts" and may FOX be the last news organization allowed to hide them.
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The law isn't deficient except in that the drafters did not anticipate the confluence of two issues: that someone who would so thoroughly flout longstanding conventions, decorum, and rules would gain the presidency - and - that, at the same time, Congress would abdicate its responsibility of overseeing whomever was president. Drafting around the potential confluence of such failures in our democratic systems without impairing the benefits of the law would be difficult, if not impossible. Sadly, it seems to me that the need for this discussion reveals that far too many members of our society, including many of those in Congress, have a questionable commitment to the principles of democracy.
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Trump’s predessor presidents have reportedly declared national emergency as many as 58 times.Many of them are said to be still in operation.Now,only the Supreme Court might decide ,if Trump’s emergency is anything like the other emergencies of the past.The latest news interestingly puts the migrants currently at the southern border at some sort of record of 70,000 with the authorities hard put to process them smoothly.
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@Khaganadh Sommu
That's what legislation is supposed to deal with. It's not an emergency, which needs action within hours or days.
2
When some analysts have considered the 1976 law, they have not suggested that all the other various emergency statutes were superceded by it. In fact, the WH has indicated it is reviewing other laws which may permit it to do what it wants. I urge Congress in revising the 1976 law, that it ensure the revised law is the only source of supra-constitutional power for a president.
On another note, it is no surprise the Korean War emergency was misused in Vietnam by Richard Nixon, on whose watch in Vietnam more US troops died than under Ike, JFK and LBJ combined.
15
If there is a silver lining in this border wall fiasco, it is how it has shed light on the serious flaws of the National Emergencies Act, particularly crippled after the Supreme Court ruling making presidential vetoes possible. Let's hope congress can make the sensible changes proposed in this editorial a reality.
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@Noah Pollock
It has also shed light on a lot of other dangers. The Electoral College and the Senate violation of one-person-one vote have been around for decades, but nobody was worried about how it might hand power to an authoritarian who did not represent the will of the American people. They are worried now.
1