Undermining His Own Case for a National Emergency

Elizabeth Goitein observes Trump Is Destroying His Own Case for a National Emergency (“By waiting for Congress to act, the president is undermining the legal basis for any declaration”):

Here’s how the legal process for emergency powers works: Under the National Emergencies Act, passed by Congress in 1976, the president has broad discretion to declare a national emergency. Upon issuing the declaration, he gains access to special authorities provided in 123 provisions of law that have been enacted over many decades. These laws authorize presidential action across all areas of government, from military deployment to agricultural exports to energy production. Like an advance medical directive, in which a patient specifies actions a doctor may take in a range of extreme situations when the patient cannot make her wishes known, they represent Congress’s best guess as to what powers a president might need in a crisis that is unfolding too quickly for Congress to respond.

As this legal framework makes clear, emergency powers are not a license for the president to sidestep Congress. To the contrary: The only powers the president can access during a national emergency are those Congress has granted. However potent some of these powers might be, the source of the president’s authority in all cases remains a legislative delegation—one that is granted in advance because true emergencies require immediate action. A president using emergency powers to thwart Congress’s will, in a situation where Congress has had ample time to express it, is like a doctor relying on an advance directive to deny life-saving treatment to a patient who is conscious and clearly asking to be saved.

Of course, Trump’s hesitation also belies his claim that there is an emergency at the border. Presidents don’t dawdle in the face of real emergencies. President George W. Bush did not spend weeks scratching his head about whether to issue an emergency declaration after the terrorist attacks of 9/11. But even if a real crisis existed, emergency powers are designed for situations in which Congress has no time to act. If Congress does have time, then there is no justification for bypassing the ordinary legislative process.

Goitein’s right, if one looks at this – as one should – as a legal matter (as no one is above the law).  Trump, however, doesn’t respect the law.  It seems more likely that Trump’s wants a herrenvolk government for America, and that his desires rest on a blood and soil policy.

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