When at Times the Mob Is Swayed

by Burt Neuborne

  Until now, the idea of presidentially declared “national emergencies” has functioned cooperatively as an “on-off” switch authorizing presidents to decide when, where, and against whom to deploy pre-approved congressional sanctions. In the one hundred years since Congress and President Wilson initiated the process, I know of no setting in which a president has used a unilateral proclamation of national emergency to authorize programs that Congress had refused to support. Giving presidents the power to turn congressionally approved laws on and off is bad enough. Even the best of presidents will be tempted to abuse such a broad power. But giving a president like Donald Trump power to circumvent Congress entirely by acting unilaterally in the teeth of congressional opposition is political lunacy. It is how democracies based on separation of powers die.

  Congress tried in 1976 to take the national emergency power back. The National Emergencies Act, signed by President Gerald Ford in the wake of the Watergate crisis, terminated almost all presidentially declared national emergencies and imposed stringent limits on a president’s ability to declare new ones. According to the act as originally written, the president was obliged to report any declaration of national emergency to Congress, which could reject it within fifteen days by a concurrent resolution adopted by a majority vote of both chambers. In 1983, however, the Supreme Court threw a monkey wrench into the National Emergencies Act’s enforcement provision by ruling that a concurrent resolution that is not signed by the president, or enacted over his veto, has no legal effect. Congress then amended the Act in 1985 to require congressional rejection of a presidentially declared national emergency to take the form of a joint resolution of Congress. The problem is that a joint resolution must be submitted to the president for signature or be passed by a two-thirds vote over the president’s veto before it has legal force. Since President Trump predictably vetoed Congress’s effort to use the joint resolution route to block him from declaring a border wall emergency, the National Emergencies Act as currently drafted is just a paper tiger. Congress could rein in the president by amending the act to require affirmative congressional assent to the declaration of national emergency, but that would take a full-fledged new law that would also be subject to a Trump veto. So it’s not going to happen because it will be impossible to marshal a two-thirds vote in both houses of Congress.

  But that’s not the end of the story. There will be five crucial legal issues for Supreme Court resolution. The first is whether the Constitution grants the president, as commander in chief and the nation’s chief executive, an “inherent power” to act unilaterally whenever he declares a national emergency. Up until now, the Supreme Court has rejected such a dangerous assertion of unilateral presidential power. That’s what Youngstown Steel was all about. But, ominously, the five Republican members of the current Supreme Court did not reject the president’s “inherent power” argument in the Muslim travel ban case. They simply declined to pass on it.

  If the current Supreme Court majority were to recognize an “inherent emergency power” exception to separation of powers, the United States Constitution as we have known it since the founding will cease to exist. I don’t think they’ll do it.

  The second legal issue for the Supreme Court is whether any statutory authority for a national emergency declaration exists that would permit the president to shift Defense Department funds to build his wall. The president’s advisors have identified two statutes that may authorize the president to shift Defense Department funds to deal with a national emergency. But both statutes raise serious questions about whether they authorize the president to use a proclamation of national emergency to shift military funds to build a wall. One allows the president to shift money to fund otherwise “authorized” projects. The other allows the president to shift money to build facilities needed to support military activity. The president’s wall is, however, neither authorized nor designed to support military activity. While the president might seek to rely on a 2006 statute authorizing the building of a wall on portions of the southern border, Congress has refused to appropriate funds to further extend the wall. A principled judge should construe the statutes literally to bar the president’s effort to rely on them.

  Third, Congress rejected Trump’s phony emergency declaration by reenacting a bipartisan joint resolution rejecting Trump’s declaration. Trump predictably successfully vetoed it.

  It’s something of a long shot, but it’s plausible to argue that a joint resolution designed to prevent the suspension of separation of powers cannot be gutted by a presidential veto. The analogy would be to a joint resolution that commences the process of constitutional amendment, a Senate vote on ratifying a treaty or confirming a nominee, or a House vote impeaching the president, none of which are subject to presidential veto.

  Fourth, assuming that the president persuades the Court that statutory authority exists and that the joint resolution of Congress rejecting it is subject to veto, the question becomes whether a proclamation of a national emergency in the teeth of explicit congressional refusal to authorize the project can vest the president with unilateral power to act. It has never been used to frustrate the will of Congress. That’s why it would be such a blow to separation of powers if a tame Supreme Court deferred to the president once again in a replay of their supine approach to the president’s unilateral Muslim travel ban.

  Donald Trump isn’t the first authoritarian leader to claim the power to dissolve legislative limits on his power by uttering the magic words “national emergency.” Adolf Hitler did it in 1933 in the wake of the Reichstag fire. It was the first step in the demise of German democracy. Make no mistake about it. If Donald Trump gets away with proclaiming a manufactured national emergency to seize unilateral presidential power in the teeth of Congress’s refusal to authorize his behavior, he will deliver a body blow to the United States Constitution. A unilateral presidential border wall, today, against the will of Congress; unilateral presidential responses to global warming tomorrow; presidential emergency decrees on gun violence the day after; preventing the mass murder of fetuses the day after that.

  How long before we have presidentially established military internment camps for dangerous political opponents? Lock her up, indeed. That’s how a constitutional democracy based on separation of powers dies.

  Finally, the Supreme Court will be asked to review whether a national emergency actually exists. The justices will almost certainly duck that issue by disclaiming the expertise needed to second guess a presidential proclamation of national emergency. But the justices’ skepticism about whether a true national emergency exists—and the fear of setting a precedent allowing the president to eviscerate separation of powers—will, I predict, color their decisions about inherent power, statutory authority, the legal effect of a contrary joint resolution of Congress, and the ability of a president to use national emergency power in the teeth of congressional opposition. In the end, Trump would lose on one or all of those questions.

  A GLIMPSE OF THE FUTURE

  A steady diet of unilateral presidential decrees flashing on and off depending on who is in office is a terrible way to govern. Think of Donald Trump unbound by limits on his personal power. It’s also inherently unstable; ask the Dreamers. As long as Obama was president, they could rely on a thoughtful regulation designed to open the way to a productive life. Once Trump became president, all he had to do was flip the switch and the Dreamers were back in the cold.

  That kind of instability can’t be good for the economy. It’s hard enough to run a business efficiently and humanely in our complex, ever-changing world. It’s damn near impossible when the basic regulations governing your industry are subject to dramatic change every time one president succeeds another. Many business leaders, especially coal and oil producers, are celebrating Trump’s deregulation binge. But that celebration can turn to bitter disappointment under a new president.

  Maybe, when progressives get back into power, it will be time to stop governing through short-
term presidential orders and executive regulations, even when we control the presidency. It’s long past time to put Congress back to work as the principal architect of new law. Not only does a congressional statute more accurately reflect the will of the people, but statutes can’t be turned on and off every time there’s a new president. It’s time to elect people to the House and Senate who are willing to shoulder Congress’s separation-of-powers burden to make the law, rather than giving away that power to the president—of either party.

  Maybe it’s time for the Supreme Court to stop functioning as an enabler in the erosion of separation of powers, standing by as Congress repeatedly delegates the power to make new law to the executive. Once upon a time, the Supreme Court refused to permit Congress to use vague statutes to delegate lawmaking power to the president and his assistants. I agree with Antonin Scalia that the old anti-delegation precedents should be dusted off and given new life.

  Maybe it’s time for the Supreme Court to stop giving away its power to say what the law is. Once upon a time, the Supreme Court accepted the duty to interpret vague congressional statutes granting regulatory power to administrative agencies. Somewhere along the way, the Court gave away that power to the bureaucrats by deferring (there’s that dangerous word again) to executive interpretations of the vague statutes. Once again, I agree with the critics who urge the Supreme Court to take back its classical separation-of-powers role.

  Maybe it’s time to rediscover the jury as ultimate fact-finder, even in administrative proceedings. Most Americans exercise direct governing power only three times in our lives—when we vote, when we serve in the nation’s armed forces, and when we serve on a jury. The Constitution protects all three—the First, Fifth, and Fourteenth Amendments protect the right to vote; the Second, Fifth, and Fourteenth Amendments protect the right to serve in the military; and the Sixth, Seventh, and Fourteenth Amendments guarantee the right to a trial before a jury drawn from all the people.

  Sadly, as we’ve seen, while the Supreme Court has provided protection for the right to vote and to serve in the armed forces, it has presided over the demise of the American jury. Most criminal cases end in a plea bargain, in large part because under our current sentencing laws prosecutors exercise so much power they can bluff defendants away from risking a guilty verdict. Civil jury trials are virtually extinct because too many cases get thrown out of court before a jury can hear them. Those that survive almost all settle. The Supreme Court has even approved the elimination of the jury from most disputes involving regulatory statutes. So in a dispute before the Securities and Exchange Commission or the National Labor Relations Board, disputed facts will be resolved by an executive official, not a jury of the people. Maybe it’s time for the people to take back the fact-finding power across the board.

  My seventh-grade civics notes are available if anyone needs them.

  9

  Which Shell Is the Power Under?

  Federalism as a Protection of the Weak

  For most of my career as a civil liberties lawyer, I have viewed the idea of federalism, sometimes called “states’ rights,” as a technique to shield pockets of racism and intolerance from efforts by the national government to protect the weak. There is, however, nothing like having an authoritarian president in the White House, a craven Republican-controlled Senate, and an ideological Republican Supreme Court to make me rethink my lifelong opposition to states’ rights. When, as now, many of the instrumentalities of the national government have become at best indifferent to the idea of equality and at worst hostile to it, the idea of shoring up the powers of state governments, elected by majorities prepared to take equality seriously, suddenly looks much more appealing.

  Federalism is the second pillar of what I have called the structural Constitution—the crucial but frequently overlooked provisions of our Constitution that lay out the powers and duties of the various actors in American democracy. As we’ve seen, the first pillar, separation of powers, defines (and limits) the relative authority of the three major components of the national government. Federalism allocates governing authority between the national government and the states (vertical federalism) and among the fifty states (horizontal federalism).

  The Founders saw vertical federalism as just another way to prevent the federal government from acquiring too much power. They limited the national government to a laundry list of “enumerated” subjects, most important among them foreign policy, national defense, taxation, and the regulation of commerce between the states (interstate commerce), and gave everything else to the states, especially the powers needed to defend their status as genuine sovereigns and not merely subdivisions of the national government. When the Founders were finished, a narrowly defined slice of governing power was vested in a national government, operating pursuant to separation of powers; an important array of powers was vested exclusively in the states, operating under “republican forms of government”; and a broad spectrum of powers was jointly exercisable by both the states and the federal government, with the federal government getting the last word under the supremacy clause whenever state policy gets in the way of national policy.

  One source of potential state power—called “the police power”—pre-dated the 1787 Constitution and didn’t depend on the Founders. British political theory recognized the inherent right of a sovereign entity to protect the life, health, safety, and morals of its inhabitants. The original thirteen states retained their “police powers” when they entered the union, but, like all state power, even the police power must be exercised in compliance with constitutional ground rules—especially the supremacy clause.

  The problem is deciding in which pot to put a given exercise of government power. What, for example, counts as regulation of interstate commerce? Thomas Jefferson and Andrew Hamilton couldn’t agree in George Washington’s first cabinet. The Supreme Court was no closer to an answer more than two hundred years later in 2014 when it narrowly upheld and narrowly invalidated portions of President Obama’s Affordable Care Act by 5–4 votes. Five Republican justices (including Chief Justice Roberts) ruled that the power to regulate interstate commerce did not vest Congress with the affirmative power to require persons to buy health insurance. The four Democrats dissented, rejecting the difference between a negative prohibition and an affirmative command. But five justices (the four Democrats, plus Chief Justice Roberts) also ruled that Congress was empowered to impose a tax (not a penalty) on persons who fail to buy health insurance. So the chief justice won that case by a vote of 1–8.

  A Republican Congress promptly repealed the tax, leaving the mandate to buy health insurance in place, but removing any legal consequences for failing to obey. Where does that leave the Affordable Care Act today? A Republican federal judge in Texas invalidated the entire act in December 2018, arguing that repeal of the tax left only an unconstitutional mandate. President Trump quickly jumped on board, directing his Justice Department to attack the constitutionality of Obamacare once again in the Supreme Court. Defenders of the act argue, first, that a “mandate” with no teeth does not go beyond Congress’s commerce clause power; and, second, that, in any event, the rest of the Affordable Care Act should survive excision of the mandate. My money is on the chief justice to save Obamacare for the second time.

  Conversely, what kinds of powers do the states need to maintain their sovereignty? In Shelby County, five Republican members of the Court thought that Section 5 of the Voting Rights Act, requiring states with a long history of disenfranchising blacks to get federal permission before they changed any voting rule, violated the equal dignity of sovereign southern states because differential treatment of the southern states was no longer necessary to protect black voters. The four Democratic justices dissented vigorously, correctly predicting that as soon as the federal restraints were removed, racists would once again make it as hard as possible for blacks to vote. We’re living with the consequences of that toxic exercise in federalism today as a wave of voter restrictions sw
eeps the South.

  Finally, how do you measure when a perfectly legitimate state policy gets in the way of a federal policy and must give way under the supremacy clause? Lawyers call it the process of preemption. For example, when states decide that imposed consumer contracts requiring compulsory arbitration are unenforceable because they unfairly burden access to the courts, does the state policy in favor of court access get in the way of a 1925 federal statute requiring courts to enforce agreements to arbitrate in settings involving interstate commerce?

  In 1984, in a setting where a contract providing for compulsory arbitration had been fairly bargained, the Supreme Court ruled that the federal arbitration statute “preempted” contrary state policy. Five Republican justices then extended the 1984 precedent to all contracts, even if one side has all the bargaining power; the four Democratic justices have consistently dissented. How can an ordinary citizen decide who is right?

  The truth is that there is no clear legal answer to many hard federalism issues. From the beginning, we’ve simply made the federalism rules up as we go along. There is no “federalism clause” to construe. Unlike separation of powers, there isn’t even an underlying theory to apply. The Constitution’s text is deeply ambiguous. There was no consensus among the Founders. The Civil War and the post–Civil War amendments radically diminished the power of the states but did not eliminate them. From a strictly legal standpoint, it’s often just a shell game.