Last week we learned that the Senate has likely scraped together the four votes needed to join the House in passing a joint resolution to overturn President Trump’s declaration of a national emergency on the U.S. border with Mexico. The House passed its resolution with the votes of just 13 Republican members, all of them joining the Democratic majority over the vigorous efforts of Republican House leaders to prevent any defections. It is a virtual certainty that Congress will be unable to muster the two-thirds majorities in both houses required to override the president’s promised veto of the measure.
That the national emergency declared by President Trump has awakened even this much opposition in Congress is an anomaly. But the current declaration of emergency is substantially different from earlier ones only in scope, not in kind. Prior to Friday’s declaration, presidents going back to Jimmy Carter have declared a total of 59 emergencies. Thirty-two of these are still active, and all but three of them could hardly be called “emergencies” in the way that term is commonly understood. Even without the partisan political context of the current dispute, any of these should have been sufficient to raise the question of whether Congress had delegated too much of its power to the president.
As a practical matter (if not a political one) these “emergencies” could certainly have been effectively addressed through the normal legislative process. The three possible exceptions are two in response to September 11, 2001 and one in 2009 that relaxed certain regulations to allow hospitals to better address the swine flu epidemic. The rest dealt with sanctions on individuals such as terrorists, drug dealers, state officials, or states themselves, none of which would, assuming a functional legislature, seemingly require the unique energy and speedy action of the unitary executive.
Yet most of the declarations were not even nominally objected to by majorities of either party for the simple reason that they produced politically expedient, short-term results that were acceptable to Republican and Democrat alike. But it beggars belief that no one considered the bigger picture.
Indeed, as the current “emergency” demonstrates, congresses and presidents that delegate or receive broadened power must be careful what they wish for. After all, the power you give to “your president” will eventually be in the hands of “their president.”
To be sure, some circumstances are indeed true emergencies that can benefit from (temporarily) expanded presidential power. But the relatively narrow needs of a specific emergency don’t justify the wholesale abdication of a constitutional structure aimed at mitigating the excessive agglomeration of power in a single branch of government. What is required is a realistic process that allows for a president to take extraordinary action when truly needed, while preserving the ability of Congress to check abusive executive action and to protect its authority in the legislative arena.
The Legislative Veto and its Demise
As it happens, such a process was built into the original National Emergencies Act (NEA). Following the declaration of a state of emergency, Congress, with simple majorities in both houses, could block the implementation of a declaration with a concurrent resolution, not subject to veto by the president. But the Supreme Court struck down this sort of process in INS v Chadha in 1983, ruling that it amounted to an unconstitutional “legislative veto” by enabling Congress to veto a presidential action in contravention of the Constitution’s “Presentment Clause” (which requires that all legislation be presented to the president for signature or veto before becoming law). Subsequently, Congress amended the NEA to comport with the regular legislative process (requiring a two-thirds majority of both houses to override a presidential veto) — which has led to the current situation in which it is virtually impossible to navigate the process and garner the votes needed to block the declaration.
And yet, according to Louis Fisher, since Chadha hundreds of legislative vetoes have been included in congressional acts or created through informal agreements between Congress and executive agencies. Furthermore, there are several important instruments used by either Congress or the president that include mechanisms identical or similar to the legislative veto to reallocate constitutional checks and balances. These instruments include “fast-track” trade authority (Trade Promotion Authority or TPA), the War Powers Act of 1973, the Global Magnitsky Act, and the Committee on Foreign Investment in the United States (CFIUS).
TPA allows the president to negotiate trade agreements with foreign states and to present them to Congress, which can vote only yes or no on an associated bill, essentially allowing the president to make treaty law and implementing domestic legislation with only ex ante input from legislators. The War Powers Act allows Congress, through concurrent resolutions (which are not sent to the president), to force the president to remove troops from a theater of war (although Congress has passed new procedures after Chadha to make its use comport with the Presentment Clause). The Global Magnitsky Act enables the president to place sanctions on individuals for violations of international human rights law (applying sanctions is the purpose of the majority of declared emergencies under the NEA). It also allows a committee chair and a ranking member to impose a requirement on the president to determine whether a specified individual meets the Act’s requirements for sanctions and provide an associated report to Congress. Magnitsky thus permits two members of Congress to require that the president submit to congressional oversight. CFIUS is perhaps the most problematic of these mechanisms as it allows the president unilaterally to regulate trade by blocking specific foreign investments (in the name of national security) with severely limited judicial review.
All of these instruments seem to violate both either the Presentment Clause or the Nondelegation Doctrine — the principle of constitutional interpretation that prohibits Congress from delegating its legislative authority to the executive branch — or both.
But while all of them operate in different (and perhaps sometimes troubling) ways, all of them also arguably increase the efficiency of government and do so in fairly circumscribed ways — in every case, more limited than the NEA. That is, each limits the scope of expanded executive authority (or legislative authority, in the case of the War Powers Resolution) to specific issue areas and to relatively narrowly delineated powers.
The NEA, by contrast, allows for expanded executive power with a virtually unbounded scope and in a manner that is nearly impossible to check.
It’s possible that any problematic consequences or unconstitutionality inherent in the above mechanisms are outweighed by the benefits of increased efficiency and efficacy, and the relative preservation of checks and balances each embodies. In his dissent in Chadha, Justice Byron White made a similar argument, stating that
without the legislative veto, Congress is faced with a Hobson’s choice: either to refrain from delegating the necessary authority, leaving itself with a hopeless task of writing laws with the requisite specificity to cover endless special circumstances across the entire policy landscape, or, in the alternative, to abdicate its lawmaking function to the Executive Branch and independent agencies.
For Justice White, an NEA without the legislative veto would do more damage to the constitutional order than would the legislative veto itself.
Time to Reconsider the Legislative Veto?
Perhaps it’s time for the Supreme Court to reconsider the legislative veto, particularly in the light of its ongoing use following the Chadha decision. One possible route by which the Court can undo the legacy of Chadha is to discard the argument that the legislative veto is a “law” that is “legislative in nature” and must therefore adhere to the Presentment Clause. Instead, it could be considered an administrative action, seen as desirable by both branches, that provides a mechanism by which Congress may safely delegate some power when efficient governance demands it — much as Justice White counseled.
In any case, given the reality of the legislative veto since Chadha, Congress should reclaim some modicum of legislative authority by amending the NEA to reinsert the legislative veto and taking its chances in court. Relative to the status quo, we would then at least return to some semblance of congressional oversight of the NEA’s dangerous grant of executive power.
But there is a practical problem with such an approach, and it’s one that undergirds most of President Trump’s most troubling conduct: The current president has little respect for constitutional niceties and the norms of governance that have largely guided our federal government since the beginning. Uses of the NEA, prior to President Trump’s attempt to “build the wall,” were relatively limited and almost entirely applied to addressing foreign actors. But when used in the domestic arena, and as a clear end-run around the appropriations process, the NEA presents a significant opportunity for presidents to bypass Congress. It’s virtually unfathomable that Trump would be willing to part with such power and sign the legislative veto back into being. Most likely we’ll have to wait for a president (and a Congress) willing to look at the big picture.
In the event that the legislative veto is reinserted into the NEA and the Court is bent on striking it down pursuant to Chadha, there are still ways in which a congressional concurrent resolution can play some role. As discussed in an earlier post on this site, one possibility would be to use the concurrent resolution to demand information or reporting from the president. If, as Jennifer Daskal argues, the concurrent resolution in Magnitsky is constitutional because it’s not inherently a legislative act but rather only “triggers reporting” by the president, a similar mechanism could be used in the NEA to require the president to explain and justify his rationale for declaring an emergency. Or, as Andy Wright notes in the same post, the concurrent resolution could provide a “sense of the Congress,” functioning as a “legislative tripwire that, if crossed by the executive branch, will arouse congressional interest and trigger interbranch dialogue.” Of course, neither of these alternatives would result in the blocking of a declaration of emergency. Indeed, as Richard Pildes writes at Lawfare, “Congress [would] be reduced to a largely symbolic role.” But in the absence of stronger medicine, informal methods may be all there are.
In any case, until one of these mechanisms is tried, and now that the danger of largely unfettered executive power conferred by the NEA has been put in stark relief, every congressperson is on notice. President Trump is unlikely to be the last president who ignores traditional norms, exploits broad laws as a means to aggrandize him- or herself, and routes around the few remaining checks on executive power. Case in point: In the political free-for-all surrounding Trump’s invocation of the NEA, Democrats began posturing about how, when in power, they, too, could declare emergencies to evade the inconvenient political constraints in Congress and address their own set of issues, like climate change and gun violence.
Bringing back the legislative veto would be a reasonable, if imperfect, way to mitigate this problem. Members of Congress must set aside their myopic tendency to expand presidential power when it suits their needs and to oppose it when it does not. From here on out, every congressperson and president that permits the status quo to operate is complicit in the abuse of executive power on a grand scale — whether it serves their narrow political preferences or not.
IMAGE: WASHINGTON, DC – FEBRUARY 25: Rep. Joaquin Castro (D-TX) speaks during a news conference about the resolution he has sponsored to terminate President Donald Trump’s emergency declaration February 25, 2019 in Washington, DC. (Photo by Chip Somodevilla/Getty Images)