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Emergency Declaration Debate Presents an Opportunity for Article I

Following the Senate’s passage yesterday of the joint resolution to disapprove of President Trump’s recent emergency declaration to use existing funds to construct a barrier along some portions of our southern border, it is clear that some in Congress are finally picking up an important message. Congress has to put a stop to and reverse course on its slow-but-steady ceding of its constitutional powers to the executive branch. On everything from trade and regulation to war and now the power of the purse, the executive branch and the president are much more powerful than was intended as outlined in Article I of the Constitution.

The blame for this shift, while partly on the executive branch for taking advantage of the situation, lies almost exclusively with the legislative branch. Congress, in its frequent state of not wanting to take tough votes or be held accountable, has allowed the executive branch to instead decide these matters. Unfortunately, it has taken until now for most in Congress to realize that this is wrong and dangerous to the separation of powers that undergirds our representative democracy.

Regardless of the legality of President Trump’s recent emergency declaration, then, a larger question remains. This is the appropriateness of such executive action in the context of our Constitution and its dictation of separation of powers. Congress has spoken this time and will force President Trump to veto their disapproval of his executive action. However, again, the problem is much deeper than any one emergency declaration.

The work necessary to reclaim Congress’ Article I powers must begin by reevaluating the roots of where Congress’ abdication of power to the executive has come from. In the case of emergency declarations, this root is the National Emergencies Act of 1976, and any effort to rebuke President Trump’s emergency declaration must be seriously paired with modifying this law to prevent unchecked emergency declarations for future presidents as well.

Many in Congress have been vocal about their opposition to President Trump’s declaration. Most Democrats cite opposition to the ends of the declaration along with decrying the action itself as an “abuse of [the President’s] constitutional oath and an affront to the separation of powers,” as House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) put it. Outspoken Republicans’ criticism falls in line with the latter of the Democrats’ arguments, and rightly so.

As Sen. Rand Paul (R-Ky.) wrote in a recent op-ed, “There are really two questions involved in the decision about emergency funding. First, does statutory law allow for the president’s emergency orders, and, second, does the Constitution permit these emergency orders? As far as the statute goes, the answer is maybe — although no president has previously used emergency powers to spend money denied by Congress, and it was clearly not intended to do that.”

To be clear, though, it is not only President Trump who has taken advantage of Congress’ willingness to give its constitutionally-granted powers to the executive branch without fuss. Since the National Emergency Act of 1976 became law, 58 national emergencies have been declared, for any number of different projects and purposes, and by Democratic and Republican presidents alike. A total of 31 of those declared emergencies are still in effect today, stemming from the Carter, Clinton, W. Bush, Obama, and Trump presidencies. Congress, however, plays little meaningful role in deciding whether these emergencies are truly worth continuing, decades after their declaration.

If Democrats, who all voted to disapprove of President Trump’s recent emergency declaration, are to not be viewed as hypocrites on this issue, they need to back an effort to prevent such abuse of executive power in the future. Fortunately, there is a proposal that has gained traction among skeptics in Congress of unchecked executive power, put forth by Sen. Mike Lee (R-Utah) that Republicans and Democrats alike can and should unite behind.

The ARTICLE ONE Act would quite simply provide for the termination of any national emergency declared under the National Emergencies Act absent the enactment of a joint resolution of Congress affirming the national emergency within 30 days of the emergency declaration. An affirmed emergency would be valid for one year, at which point it would have to be extended by the president and affirmed again by Congress. This reasonable change creates a more constitutionally-aligned process for congressional review of emergency declarations, where Congress must exercise a larger role in determining the legitimacy and necessity of declarations. Politically, this is a necessary move for Republicans and Democrats both.

Republicans should want to avoid a situation where a future Democratic president takes currently existing power further and declares national emergencies to enact his or her agenda on climate change, healthcare, “free” college, or any other number of radical, detrimental progressive priorities. Democrats should want to avoid being seen as hypocritical when they have decried President Trump’s declaration as unconstitutional but say nothing in the future for one of the aforementioned hypothetical emergency declarations under a future administration.

Thus far, Congress has done an underwhelming job of retaining its powers as outlined in the Constitution, on regulations, on trade, on foreign policy, and on emergency declarations and power of the purse. It is long past time for Congress to right this wrong, and the ARTICLE ONE Act offers one solution to that end.

The discussion around how and why the executive branch has so much latitude to carry out actions much out of line with the Constitution is far from over. Proponents of separation of powers should seize on the current appetite in Congress to act in some form on this issue and hold their colleagues on both sides of the aisle accountable to their recent rhetoric.