On the evolving relationship between the three branches, and the imperial presidency.
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When the law under which President Trump has declared a national emergency was first enacted, in 1976, it was designed to require both Congress and the president to agree that a national emergency exists before the president could exercise emergency powers. Now that the Senate has joined the House in rejecting Trump’s emergency declaration, his declaration would be invalid — if not for a 1983 Supreme Court decision that destroyed the careful scheme Congress had designed for deciding whether emergency powers should be unleashed.
To understand how that Supreme Court decision dramatically affected the way the government works, consider what Congress had intended when it passed the National Emergencies Act. The law, created in the post-Vietnam and post-Watergate years, was one of many adopted in that era to constrain what had come to be called “the imperial presidency.” Congress decided that the awesome and dangerous power to declare emergencies required the agreement of both political branches of the government.
Rightly or wrongly (and over the vigorous dissent of Justice Byron White), the court concluded that Congress cannot act through a legislative veto but can act only by passing a new law. In the case of Trump’s declaration of a national emergency, that means Congress cannot simply disapprove, thus terminating the declaration, but instead must give Trump the chance to veto Congress’s disapproval, as he has promised to do. Instead of being able to end a presidential declaration of emergency with a majority vote in both the House and Senate, Congress must marshal an implausible two-thirds majority in each chamber to override the president’s veto.
Congress is often accused, justifiably, with fecklessly abdicating its institutional responsibilities by delegating vast, general powers to the president and the executive branch. Some critics of the National Emergencies Act have accused Congress of exactly that, in part because the act does not define what constitutes an emergency. But the criticisms are misplaced when it comes to the act in its original form.
Having resolved that deciding whether an emergency exists is ultimately a political judgment, Congress gave itself a crucial role in the process. The legislative veto sought to make Congress, not the courts, the appropriate institution to decide whether the president was right to declare an emergency. By their nature, emergencies are difficult to define; that challenge mattered less when Congress was empowered to react to specific circumstances and decide whether the president had appropriately declared an emergency.
