The Peoples’ Constitution: The Wall and Emergency Powers

By Ben Lenhart

President Trump has declared he will use emergency powers to help build a border wall on America’s southern border after Congress refused to provide the funding he sought. Can he do this, and does the Constitution grant emergency powers to the president? Fortunately, the courts have addressed these issues before. This article aims to lay out the key constitutional issues involving the emergency powers off the President.

The Text of The Constitution

The Constitution does not expressly grant the president any emergency powers. While there are a few emergency powers in the Constitution, none expressly apply to the president. For example, Article One states that the writ of habeas corpus (which protects Americans from unlawful imprisonment, and gives us the right to be brought before a judge) can be suspended, but only in “Cases of Rebellion or Invasion.” Another section of Article 1 bans states from engaging in war, but allows them to do so “if actually invaded, or in such imminent danger as will not admit of delay.”Because the first example is in Article One, which establishes the legislature, most view this emergency power as belonging only to Congress and not to the president. The second example grants emergency power to the states, not the president. In short, there is no express grant of emergency power, general or specific, to the president. But that is far from the end of the search for emergency presidential power.

To be sure, the Constitution gives the president enormous powers, including vesting all executive power in the president, giving the president the power (and duty) to execute the laws, and making him the commander in chief. Within these broad powers, the president likely has certain “implicit” emergency powers, such as the emergency power to call out the armed forces to repel a sudden invasion. The Constitution does not list the power expressly, but most agree with this view, including James Madison, the father of the Constitution.

Some argue for far broader “implicit” emergency power, arguing that because the president holds all executive power, he must also hold any and all emergency powers that may be needed to protect the country—even if those powers are not set forth in the Constitution or in other laws. But the Supreme Court rejected this idea in the famous Youngstowncase.

Youngstown Steel

During the Korean War, President Truman issued an emergency order for the government to seize the nation’s steel mills because a labor dispute threatened to close the mills. Truman argued that steel was essential to the war effort, and that the nation faced a catastrophe if the steel plants closed during the war. In the Youngstowncase, the Supreme Court rejected Truman’s arguments, noting than any action of the president must be authorized either by an act of Congress or by the Constitution itself. First, the court held that no act of Congress authorized seizure of the mills and, in fact, Congress had indicated that it did not favor this “seizure” technique in the context of labor disputes. Second, the court held that nothing in the Constitution gave this “seizure” power to the president, even in times of war. While the president, as commander in chief, may have limited emergency powers to defend against attacks, the court said this power was limited and did not extend to seizing the mills. The court concluded that the president’s actions amounted to lawmaking, and that “the Founders of this Nation entrusted the lawmaking power to the Congress alone in good times and in bad.”

Lincoln and Habeas Corpus

Near the start of the Civil War, President Lincoln suspended the writ of habeas corpus in certain locations, citing emergency conditions—including interference with vital troop movements—created by the war. Justice Taney issued a controversial ruling (in the case of Ex Parte Merryman) that Lincoln’s suspension violated the Constitution because only Congress, and not the president, had the power to suspend habeas corpus. Lincoln ignored Taney’s ruling, and later in the war, Congress passed a law giving the president the very power that he had already used—the emergency power to suspend the writ. This sequence highlights a vital fact about the president’s emergency powers: they are strongest when used pursuant to a grant of emergency power from Congress.

What Congress Gives, Congress Can Take Away.

Congress can—and often does—give the president specific emergency powers by including such powers in laws addressing a wide variety of topics. The habeas corpus law above is one example. Another example: The “International Emergency Economic Powers” grants the president the power to declare an emergency “to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States.” If the president declares an emergency under this law, he then has emergency powers to regulate, or even stop, many types of foreign business dealings. Many other laws give the president emergency powers for specific topics—if certain conditions are met. The key point: all of these emergency powers were given to the president by Congress, and all can be taken away by Congress.

National Emergencies Act (NEA)

In NEA, Congress tackles, head on, the question of the president’s emergency powers. Under this 1976 law, if the president declares an emergency, he must first identify the precise law that gives him the power to do so. Think about that: if the president believes there is an emergency (such as in the case of President Trump and the border wall), he can’t just cite his general emergency powers, rather if he wants to declare an emergency he has to tie (in most cases) his emergency actions to specific emergency powers given to him by Congress under a specific law. In short, in NEA Congress aims to rein in the president’s use of emergency powers.

Korematsu and the Bottom Line

Following the attack on Pearl Harbor, President Roosevelt relied on emergency powers to order that Japanese Americans—even those of unquestioned loyalty—be placed in internment camps during the war. A divided Supreme Court upheld the order in the case of Korematsu, a case which has been severely criticized and which was later acknowledged to be a grievous mistake. Chief Justice Roberts recently wrote this about the case: “Korematsuwas gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—’has no place in law under the Constitution.’”

Korematsu highlights the danger to America of emergency powers. No one doubts that such powers, when used sparingly and wisely, play an important role in America, and can fit within the Constitution. But most also know that emergency powers, when abused, can lead to grave loss of freedom and even dictatorship. If a president can invoke emergency powers, without limit, to set aside our Constitutional safeguards (even if he believed it necessary to deal with an emergency) Americans could easily lose their cherished freedoms, such as freedom of speech and religion, freedom of travel, and due process.

Just as in Germany during the Third Reich when the German government declared “emergencies” as a way to slowly strip away their citizens’ rights, it is all too easy for leaders to claim that a “temporary” suspension of these freedoms is necessary to deal with the “emergency” of the day. As Justice Jackson wisely said in Youngstown—the very presence of emergency powers “tends to kindle emergencies.” That is why our founding fathers strictly limited the emergency powers of the president and that is why, when the president seeks to declare an emergency, his actions can, in many cases, be checked or even reversed by Congress or the courts.

Ben Lenhart is a graduate of Harvard Law School and has taught constitutional law at Georgetown Law Center for more than 20 years. He lives with his family and lots of animals on a farm near Hillsboro.

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