by Charles Hubbard

President Trump’s recent decision to declare a national emergency to allow the diversion of previously appropriated funds to address the crisis of illegal immigration along the southern borders of the United States has focused national attention on the long-standing debate over the balance of power authorized by the Constitution between the three branches of the national government. The Constitution allows for the executive branch to declare a national emergency to address an urgent national crisis. In addition, the president has the authority as commander-in-chief to exercise emergency war powers. The founders deliberately provided these vague and nonspecific powers to enable the President to respond quickly and without the delays often caused by congressional debate to an immediate crisis. However, the Constitution requires the president to seek congressional approval for all appropriations.

American presidents frequently declare national emergencies in cases of natural disasters, economic emergencies and threats to public security. However, there is a difference between a national emergency and the use of war powers. The pull and tug has existed between Congress and the executive branch over the use of these powers since the beginning of the Republic. Congress has the right under the Constitution to withhold funding to limit any abuse of the emergency powers by the president.

One of the earliest disputes over this issue arose when Thomas Jefferson unilaterally and without congressional authority purchased Louisiana from Napoleon. Jefferson, a strict constitutional constructionist, utilized a treaty agreement in order to bypass the responsibility of Congress to appropriate funding for the purchase of the vast territory. Over one hundred years later, Woodrow Wilson in February 1917 issued an emergency proclamation to address a maritime shipping shortage. Ultimately Wilson’s action led to the creation of the United States Shipping Board that still operates to regulate the Merchant Marine. In a highly controversial presidential decision, Franklin D. Roosevelt in 1933 declared a banking emergency crisis and declared a bank holiday closing the banks. The Supreme Court eventually ruled that the president was limited, but the court did not specify or provide limits to the power of the executive to declare a national emergency.

In an effort to limit the power of the president to declare a national emergency, Congress in 1919 enacted legislation authorizing Congress to terminate or overturn actions taken under a presidential proclamation or emergency action. More recently in 1976, Congress passed the National Emergencies Act in response to the abuses of the Nixon administration. This act requires a presidential emergency or proclamation to be specifically limited for one purpose and does not allow the president to provide for every possibility. The legislation specifically prevents the president from arbitrarily lumping multiple issues together at his sole discretion. The passage of this legislation, however, did not eliminate the potential problem associated with determining the existence of a national emergency: The president determines the existence of a national emergency. The president then determines the appropriate response to the emergency.

Presidential war powers are distinctly different from the national emergency powers. Frequently over the years, presidents have found it necessary to resort to the use of the war powers. Certainly, Abraham Lincoln during the Civil War exercised extraordinarily broad powers under the provisions of the war powers. Theodore Roosevelt called upon the war powers to seize the Panama Canal Zone. Harry Truman went to war in Korea without a declaration of war by exercising his authority as commander-in-chief. Lyndon Johnson during the Vietnam War acted without congressional approval until the Gulf of Tonkin resolution passed in 1968. Ronald Reagan used the military in Granada and Panama. The president has the constitutional right and the obligation to declare a national emergency or exercise extraordinary war powers to protect and preserve public order and security.

What then is the role of the court system as the third governing institution to provide checks and balances? It is the courts’ responsibility to determine whether there is a national emergency. In the case of the war powers, is a declaration of war required? In either case, are the actions of the president taken in response to the emergency constitutional? The legal process can be time-consuming and that is precisely why the founders granted these nonspecific powers to the executive. Ultimately, the court must have the final say.

Undoubtedly, the debate between the branches of government will continue. The Constitution with its creation of the three branches of government, each retaining specific powers, is a remarkable and unique contribution to political theory and practice. The debate and the resulting dialogue has produced limited and representative government for the people and by the people of the United States. It is important that we view the most recent use of expansive presidential power within the context of this delicate and essential balance.

Posted by ALISLPP

One Comment

  1. […] this week, Professor Hubbard made the important observation that President Trump’s declaration of emergency must be considered within a historical and constit… I disagree, however, with Professor Hubbard’s general view that the use of domestic emergency […]

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