Perils and Precedent

By Bryan Hay

President Donald Trump’s expected veto of a resolution blocking his national emergency declaration would set a precedent, possibly allowing future presidents to bypass Congress and call a national emergency to address any number of issues.

Prof. John Kincaid, an expert on federalism, sees little good coming from a veto, which would be the first of Trump’s presidency. Although the Senate is poised to join the House to pass a resolution blocking the emergency declaration to finance barriers on the U.S.–Mexico border, neither chamber will have the votes to overturn a veto.

If Trump is successful and gets the funding he wants through a national emergency declaration, Kincaid predicts perilous precedents that “could further expand the modern imperial presidency.”

He shared his views during a recent conversation.

What are the implications for future presidents if Trump vetoes the resolution that would end his declaration of a national emergency at the U.S.–Mexico border?

There are two disturbing things about it. If he felt there really was an emergency, he had an obligation to declare it and then ask Congress for money. He didn’t do that, so how much of an emergency is it? He’s using the national emergency power as a club over Congress. That’s not a good precedent to set. If there’s a national emergency, it exists, and you declare it to address a storm or a pandemic.  

The second precedent is using the national emergency as a way to circumvent Congress’ constitutional power of the purse. Congress has the power to decide the appropriations, so using a national emergency to circumvent that power sets another dangerous precedent for presidents.

If Trump loses the election in 2020, it will weaken the precedent because future presidents won’t want to look back and say they will use Trump’s tactic. If he wins, it will strengthen the precedent. He might end up doing this again in a second administration. From a constitutional point of view, it is very troublesome.

If Trump gets his way, what other issues could he possibly address by declaring a national emergency?

You just don’t know what some president is going to think up. It could be some domestic policing issue or wanting to exercise some kind of national martial law. During the Vietnam War, some people feared Nixon was going to cancel the 1972 elections amid the turmoil. I’m not sure Trump would try to do that, but who knows?

Has the president met the requirements to declare a national emergency and to redirect existing federal funds to address it?

The National Emergencies Act of 1976 allows him to do this. Under the original legislation, Congress could pass a joint resolution to end the emergency unilaterally. However, the Supreme Court in 1983 ruled that Congress’ exercise of such a legislative veto is unconstitutional.

If Democrats fail to override a veto and challenge the emergency declaration in court, what are the potential outcomes of testing the balance of powers between the legislative and executive branches of government?

One argument would be he’s using this as a cudgel over Congress, yet he himself said he didn’t have to declare this emergency. That leaves him wide open on the litigation front for Democrats to demonstrate that he was misusing the power as a club and circumventing Congress’ constitutional power after the fact. That’s one route they would go down.

States are arguing that they have standing to sue because the emergency declaration affects them because funds for military construction projects in their states would go to a wall instead. The immediate strategy would be to get an injunction as a result of the litigation and prevent the building of the wall by letting the clock run out on Trump’s presidency and hoping he loses the 2020 election.

National emergencies through the years

The National Emergencies Act of 1976 allowed Congress to terminate a national emergency by a joint resolution. However, the Supreme Court in 1983 declared this a legislative veto and unconstitutional. As a result, a joint resolution must be signed or vetoed by the president.

From 1976 to February 2019, 59 national emergencies have been declared.

The oldest national emergency still in effect is President Carter’s November 1979 emergency seizure of property of Iran’s government.

President George W. Bush declared 12 emergencies, Barack Obama 13, Trump three.

In addition to foreign threats, a president can declare a national emergency in response to a domestic crisis such as a hurricane or flu epidemic.