No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of [the Constitution’s] provisions can be suspended during any of the great exigencies of government — Ex Parte Milligan, 1866
And so, the farce has inevitably come to this. Stymied by Congressional opposition to funding his beloved wall, President Trump has declared a national emergency, theoretically freeing funds from other, worthier projects. Rather than treat the President’s action for what it is — a bald faced end run around Constitutional government — the same partisans who had reacted to Barack Obama’s “pen and phone” with the fury of the bypassed have instead bowed to Trump’s ham-fisted pronouncement. Senator McConnell, who as Senate Majority Leader would be expected by the dictates of his office to most loudly oppose a declaration so blatantly undermining of Congress’s prerogative to hold the nation’s purse strings, has instead knelt at the altar of partisan indifference and sheepishly shrugged. As reported by the New York Times, he attempted to dissuade Trump from the declaration, then docilely surrendered, snapping at White House counsel Pat Cipollone, who warned of potential illegality of the declaration and court challenge: “Who cares? This is America- everybody sues everybody else.”
There is no emergency, of course. Only in 2019 America would years of declining net illegal immigration across the southern border and proper use of the lawful asylum system trigger a declaration of national emergency. Nor would any exigency exist even if the facts were not wholly fictitious: emergency requires immediacy, and never before has an emergency worthy of its name meandered so slowly around the twists and turns of the river of national need. The Wall itself is a perfect metaphor for the falsity of the declaration, perhaps the slowest-forming policy response possible to an “emergency” filing precisely none of the definitions the word demands. Nor does any serious thinker believe it to be an actual policy solution. The wall was a figment of the imagination of a nefarious (and now indicted) political operative, placed into then-candidate Donald Trump’s rally speeches solely and exclusively to provide a pungently tangible object of cultural disgust for both the attention-addled speaker and audience. It speaks volumes that the world’s mightiest democracy, one that funded projects of inestimable value in the past through regular order, has endured the closure of its government and all the resultant miseries because the President insists on metastasizing a talking point.
The real rationale for the emergency, as everyone knows, is that the President is unhappy that he cannot simply get his way. The very flimsiness of the stated rationale was undermined by Trump himself on January 9 when he admitted his threshold for declaring an emergency was “if I can’t make a deal with people who are unreasonable”. The only emergency is Trump’s refusal to accept the verdict the democratic process rendered to his signature Potemkin project- which he absentmindedly confirmed when stating that “I didn’t need to do this” during the press conference defending his so-called emergency. In reality, the President has in essence declared that the opposition party’s control of one house of Congress amounts to an emergency; when Congress didn’t give him what he wanted, he simply took it. Led by McConnell’s “Who cares” — which, if justice exists, should be his political epitaph — Congressional Republicans appear poised to shrug off a blatantly authoritarian power grab by the executive branch. Having passed the prerogative of governing to the executive, the legislature, paralyzed by the shadows of diminished character, has steadfastly refused to take it back.
It’s tempting to wonder if this truly matters. Two years in, after all, civil society has proven itself quite robust in opposition to Trump’s putative abuse of the powers of the Presidency. As for the wall, the courts may stop him, and even if they don’t, it will be years until his warped ode to Game of Thrones is actually complete. And of course, the amounts at issue are a small fraction of the national budget. Are we overreacting? Can we shrug this off as background noise of Trumpian bombast, and go on our merry way?
The President’s actions do have the patina of legitimacy. Emergencies — real emergencies- do exist, and occasionally, require speedy action. The Founders, however, chose to ground the power to respond to emergencies largely with Congress. Despite the long-held issue that deliberative bodies are ponderous and unwieldly, somewhat intentionally so, the shapers of the federal Constitution left no explicit grant of emergency authority in the Constitution; the words “emergency” or “exigency”, or a cognate thereof, nowhere appear in that august document. To the extent any such concept even exists, it is Congress which is assigned such powers to, for example, to suspend habeus corpus in extraordinary circumstances. To the extent the Constitution vests emergency power in the President, it is a derivative power limited to Article II, Section 3’s conveyance of the ability to, on “extraordinary Occurrences”, to convene one or both houses of Congress. The Founders, well grounded in, for example, John Locke’s assertion that emergency power should be left to the executive, as the legislature is “too numerous and too slow for the dispatch required for executions,” nonetheless recognized the risk of providing the executive branch with the tool to bypass the legislature on the oft-flimsy grounds of emergency, and rejected it accordingly.
Perhaps inevitably, the national security state of the 20th century conveyed enormous latent power on the President to declare emergencies and rule in manner unimaginable to and incompatible with the Founders’ vision and, increasingly, the conscience of liberty. In 1976, Congress attempted to retake power from the Presidency, the latter institution damaged by Nixon’s excesses, and passed the National Emergencies Act, which aimed to provide certain parameters reigning in executive overreach. The President retained complete discretion to declare an emergency, but he must report which powers he intended to use, report to Congress every six months, and the emergency would expire after one year unless the president renews it. The Senate and the House must meet every six months while the emergency is in effect “to consider a vote” on termination of the emergency, which if exercised would control regardless of Presidential dictate.
The law assumed a lot. It assumed an engaged and active Congress, retaining a distinct institutional prerogative to reign in the Executive no matter which party held the Oval office. It assumed a President with both the wisdom to discern regular emergency from normal democratic concern and the civic virtue not to fire the loaded gun he had been handed for improper purposes. And it assumed that presidents would not renew emergency declarations out of hand, as an emergency lasting over a year is almost by definition not justly exigent.
The law assumed far too much. Feckless and weakened by partisan cracking, Congress has never, in the 42 years since passage, met to consider a vote on termination, let alone acted to terminate. Presidents have renewed some emergencies for nearly 40 years without a whimper of protest. Yet what emergencies worthy of the name truly exist? The only true emergency arguably occurring since 1976 was the September 11 terrorist attacks. Whatever the merits of George W. Bush’s emergency declaration on September 14, 2001, the “emergency” has apparently become rote generational background noise; eighteen years later, and almost eight years after the death of Osama Bin Laden, the “emergency” continues, continued by Presidential proclamation on an annual basis with nary a Congressional response.
And so, in some sense, it is tempting to reach the conclusion that emergency declarations are potentially harmful, perhaps unfavored by the Founders, but have become somewhat constant, and Trump’s declaration therefore is simply a faded copy of his predecessors’ actions. That, however, would ignore one enormous difference. Here, Congress has acted, and Congress’s actions in passing the continuing resolution has — and must — make all the difference.
We may not miss the few billion re-allocated to the wall, but the ripple formed is not economic. It’s precedential. Congress has spoken, and the President has signed the bill which provided a certain amount, and no more, for border security. Unlike prior emergencies, therefore, Trump’s declaration is a blatant avoidance of the very law Congress has just passed — something even he, in his guilelessly blustering manner, forthrightly admits. The use of emergency powers to avoid the messy, squabbling, and often-paralyzed legislature has vast potential as catnip to ever more activist Presidential prerogative. If the opposition’s legislative refusal to bend to the garb of executive demand constitutes an emergency, then cannot the legislature simply be bypassed on an ever-expanding range of policy decisions? Today, the Wall: what, then, tomorrow? We have relied on precedent of restraint to avoid abuse of the law, but precedent clearly is not enough. Now, a new precedent is established, and it can be widened from a small crack to, even within the law, a breach of enormous potency. If Congress can speak, and the President can ignore it, what then, is the continuing power of Congress? The dictator power created by the ancient Romans, after all, and purportedly used only for emergencies, once used for ever expanding reasons eventually swallowed the republic whole. Even some Republicans have noticed the uneasy consequences, with Representative Matt Gaetz declaring, tragicomically, that “I don’t want the next national emergency to be that some Democrat president says we have to build transgender bathrooms in every elementary school in America. “
Well that they should be uneasy. Emergency powers are kindling set within the house of constitutional governance, and Trump’s use for the relatively limited purpose cracks open a door to a regime of constitutional override, the malign shadow of which is only dimly now visible. The same law that that the President just used for a relatively limited purpose contains within it vast dormant powers within which Trump, or a cleverer successor, may cloak himself. Under the law, the President can, for example, arguably declare emergencies of various types, without needing to justify any definition of emergency, and by doing so, gain access to statutes empowering him to do everything from block electronic communications to deploy troops within the borders of the country. Emergency powers, ostensibly created to address emergencies, look rather more like the fuse lit to create them.
Congress can stop this declaration — it’s right there in the Act — but it almost certainly won’t. That, perhaps, is the most bitterly ironic part of this story. Trump’s declaration is dangerous because it occurs in a space where Congress has acted, but Congress as a whole barely acts at all any longer. The breakdown of Congress as a functioning legislature is the gravest part of our story of national disintegration and the amplified background noise of this sorry saga. Power abhors a vacuum. Where Congress has faltered, power accretes inexorably to the surviving branches- to the President, and to the courts. In speaking of the emergency declaration, commentators focus on the President’s right to declare it and the potential right of the courts to enjoin it. Yet no one looks to Congress to exercise its lawful prerogative to determine if the emergency should properly be declared. Nor should they, if McConnell’s statements are any indication. Congress, having acted, immediately looks to avoid the use of the power to compel any compliance with its action. And that in turn can help create even more dangerous precedent: if the President can run untrammeled over Congress when it has acted, what greater mischief can a determined President unleash where Congress has failed to act?
We know where the story can lead, after all. If not stopped at the outset, emergency decrees become the forbidden fruit of which activist presidents cannot help but avail themselves. Ruling by emergency decree, bypassing the squabbling, fractious legislature, is the preferred practice of many a banana republic dictator. Egypt, for example, has been ruled under a declaration of national emergency virtually for the entirety of its history since 1967.
We are not there yet. We are not close to there yet. But the floor below has begun to shake, and the rumblings of a warped democracy in which laws of vast consequence are the exclusive playthings of the President, battled against or acquiesced to only by the courts, are now visibly felt in the tremors. And so again, the right question to ask: today, a wall. What then, tomorrow?
In some sense, we know what tomorrow could bring. Weighted down by the freight of factionalism, beholden to monied interests at all turns, and compromised by abuse of the rules meant to ensure proper governance, Congress likely will not act. The courts appear to be the likely determinative actor in the emergency debate, but the actions of the unelected branch cannot carry the same legitimacy as the body which was specifically granted the role of checking the Executive in the Act itself. Further, the courts are simply made of individual judges, themselves political appointees. If there is any silver lining, it is the delicious irony — McConnell’s Republicans are silently hoping the courts stop Trump’s emergency declaration, so that the precedent is not set for a future Democrat to used, but the likelihood of such action of the lower federal courts, now stocked with Trumpist judges, and the Supreme Court, down one Merrick Garland, has been severely downgraded by McConnell’s own actions. Given that Congress has said, loudly and clearly, NO, there is something perverse about Brett Kavanaugh of all people potentially being the determinative vote on whether no really does mean no.
In the final judgment, it is not the courts, however, we should remember here. It is what happens if the people’s legislature fails to protect its institutional power from a rapacious executive. We know where one fork in the road can take us, because Germany’s interwar Weimar Republic has shown us. Although often invoked as a doddering handmaiden of Nazisim, Weimar was for a brief time a functioning, even vibrant republic, with power at least nominally centered around the Reichstag, the elected legislature. But to ensure the President had adequate power, Weimar’s Constitution built in Article 48, which gave the President power to rule by emergency decree “If public security and order are seriously disturbed or endangered within the German Reich. “ In 1930, the centrist Chancellor Henrich Bruning sought to pass a financial reform bill to address the Great Depression. The bill was unpopular, and caught between the fractious right-wing and left-wing parties which dominated the legislature, was voted down by the Reichstag. At this point, Bruning invoked the power held by the President, Paul von Hindenburg, and overrode the Reichstag by declaring opposition to be an emergency under Article 48. Never before in Weimar’s short history had Article 48 been used to override the expressed will of the legislature. Its use bypassed the Reichstag, weakening the power of the legislature and by extension, the voters. Awakened to the ease and power of decrees, chancellors began to use Article 48 for the very functioning of government rather than deal with the twists and turns of a gridlocked legislature. Less than 3 years after Bruning’s use, Hitler followed the path charted to a far grislier outcome.
The important thing to note about Bruning’s actions is that they weren’t nefarious. Bruning himself was no extremist- while not an ardent republican, he deeply disavowed Hitler and called Hitler’s later Enabling Act the “most monstrous resolution ever demanded of a parliament.” Fleeing Germany, he lived out his life after the Nazi seizure of power as a professor at Harvard, warning the American public of Hitler’s bellicose aims. Bruning’s actions in 1930 were meant to respond to the Great Depression, and were undertaken in the good faith that they would respond to a real emergency. And yet, by bypassing the Reichstag where it had already clearly and loudly spoken, Bruning fatally undermined the bedrock principle that the legislature must express the will of the people. Having pioneered, somewhat innocently, the authoritarian presidential use of emergency decrees, the Weimar Republic became addicted to the cheap hit of ruling by decree, numbing the pain of going through the motions of creating legislation in the people’s legislative house. The legislature was paralyzed by factionalism and failed to coalesce around the importance of retaining institutional power. The people could not care for a legislature that apparently cared little for itself, and it was but a short step from use of the decree from policy aims to political revolution, from attempting to govern to iron rule.
We aren’t Weimar, a republic with vastly fewer institutional reserves than our own. But if we are going to arrest the long slide, if we are going to reinvigorate the proper role of Congress, we must pressure congressional Republicans as best as we can to override the emergency declaration- the Act, if nothing else, provides that the Senate must consider a House vote to terminate, and Nancy Pelosi will certainly vote to do just that. Failing that, legislators must be elected who will push back even against the overreach of their own party’s President. The Act itself must be reformed to institute far more institutional control over any emergency declaration — at minimum, emergency must be defined in a clear and obvious manner. Unceasing pressure on the legislature to save itself from the abyss of irrelevance is a task of outsized importance. Whatever its foibles, We the People need to look hard at the stewardship of our patrimony and recognize that liberty in practice may look messy, divisive, and sometimes downright embarrassing, but it is always better than the alternative. Speaking in 1943, Judge Learned Hand memorably remarked that
I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.
Reminding our elected officials, and in particular those willing to make a Faustian bargain to empower the President’s imperious impulses, that liberty remains, even in the face of division, is a task worthy of the moment.