President Trump’s declaration of a national emergency at the southern border became the catalyst for bipartisan calls in Congress for an overhaul of the federal law that provided the president with the path to divert federal funds to build a border wall.
The president invoked the National Emergencies Act to bypass Congress and redirect $3.6 billion in military construction funds to erect a wall at the U.S.-Mexico border. In the wake of the Feb. 15 emergency declaration, a number of lawmakers warned the president’s action was unconstitutional and an overreach of executive power.
Now, Congress is trying to reclaim its power by seeking changes to the 1976 law.
“[Trump has] provoked them into finally thinking about how many powers they delegate to the president, and that part is a grand thing,” Kim Lane Scheppele, a professor at Princeton University’s Center for Human Values, told the Washington Examiner. “Congress needs to restore its own role.”
In the more than 40 years since its enactment, the National Emergencies Act has gone largely unchanged. But a 1983 Supreme Court ruling in the case Immigration and Naturalization Service v. Chadha led Congress to amend the law to allow it to terminate an emergency declaration by a joint resolution that is subject to a veto by the president.
Congress did just that last week when it sent, with bipartisan support, a resolution of disapproval blocking Trump’s national emergency to his desk. But the president issued a veto of the measure — the first of his presidency — and it’s unlikely Congress will be able to clear the high hurdle to override it.
The debate over Trump’s emergency declaration is not over, as it is the subject of several court challenges in addition to having prompted talk of changes to the National Emergencies Act.
“This is the time for Congress to go back and figure out what to do to make this law fit within the separation of powers and fit within our constitutional structure,” Scheppele said. “We don’t live in a monarchy. We don’t have a president who exists outside legal constraints.”
Sen. Mike Lee, R-Utah, introduced a bill before the vote on the resolution to end Trump’s emergency declaration that would amend the National Emergencies Act to require termination of future emergency declarations after 30 days unless approved by Congress. Rep. Chip Roy, R-Texas, introduced a companion bill in the House.
The measure, backed by 17 Republican senators, was floated as part of a deal under which GOP senators would support Trump’s emergency declaration in exchange for his support of Lee’s bill.
Trump rejected the deal from GOP senators, but he later expressed support on Twitter for future efforts by Congress to change the National Emergencies Act.
Senate Majority Leader Mitch McConnell, R-Ky., has also tasked the Senate Homeland Security and Governmental Affairs Committee with exploring possible changes to the National Emergencies Act.
“If Congress has grown uneasy with this law, as many have, then we should amend it,” McConnell said. “If the 116th Congress regrets the degree of flexibility that the 94th Congress gave the executive, the 116th Congress can do something about it.”
In addition to implementing a 30-day clock for terminating national emergencies, Elizabeth Goitein, co-director of the Liberty and National Security Program at New York University’s Brennan Center for Justice, urged Congress to define “emergency” in the law.
“A president can do a lot of damage in 30 days under some emergency powers, so it’s not enough to say the president has free rein,” she said. “The president should be under some constraints based on the definition of national emergency in the statute so if the president declares an utterly fake emergency, the courts can step in right away and they don’t have to wait 30 days.”
Goitein also suggested there be a five-year limit on any national emergency and urged Congress to specify that emergency powers invoked must relate to the national emergency. Additionally, Goitein called for greater transparency regarding the use of emergency powers by the president and called for the National Emergencies Act to be amended to make clear that a president cannot issue an emergency declaration to circumvent Congress.
“This is going to happen again, and it will probably happen under future presidents because the seal has been broken,” she said. “It’s critical to reform the National Emergencies Act to restore the proper balance between the president and Congress.”
