Washington’s response to President Trump’s declaration of a national emergency over immigration has been hypocrisy as usual—and a lot of what you’ve heard about the matter is wrong.
For many years Congress has been handing over power to the president and the agencies of the administrative state. Lawmakers are delighted to do this, because it relieves them of the difficult decisions involved in creating actual legislation.
Something similar is happening with complaints about Mr. Trump’s emergency declaration. In 1976 Congress enacted the National Emergencies Act. Although it was the aftermath of Watergate, a low ebb for presidential power, the act gives the president the unrestricted authority to declare national emergencies.
Since then, presidents have declared 57 emergencies, of which 31 are still in force. Nevertheless, now we hear congressional complaints that Mr. Trump has somehow managed to overstep his unrestricted authority. Even though they raised no similar objection when Bill Clinton declared a national emergency to prohibit transactions with Sudan (1997) or when George W. Bush used one to impose economic sanctions on Zimbabwe (2003), many in Congress claim to be sure that what is happening on the southern border is not an emergency. The absence of any outcry in the earlier cases is easy to explain: They did not have partisan political implications.
Congress can adopt a joint resolution denying the president the emergency authority he claims. But the act provides that the president can veto it, requiring two-thirds of both congressional chambers to override and making it almost certain that the president’s declaration will go into effect.
Under the emergencies act, the president must specify which appropriation authorities—granted under other statutes—he will invoke to fund his declaration. These other laws, 136 of them by one count, could provide some of the funding for what the president wants to do, and any court battle about the emergency will center on the language of those statutes. That substantially undercuts the claim that Mr. Trump’s declaration of an emergency provides a precedent for a future Democratic president to declare climate change or gun violence a national emergency. That future president would have to find other language among these statutes to support funding for an emergency action.
Despite all the claims about Mr. Trump’s overstepping, the emergency declaration itself will probably be upheld by the Supreme Court. Congress has provided no standard to judge whether an actual emergency exists, and it is all but inconceivable that the justices would assert the power to impose their own definition. Eventually, then, although particular funding sources will be fought over statute by statute, the president will likely be able to build his border wall. Some of the funding can come from sources that can be reprogrammed under existing appropriation rules without an emergency declaration.
That, too, underscores lawmakers’ hypocrisy. Many bemoan the loss of Congress’s constitutional “power of the purse.” It is certainly true that the Constitution requires that only Congress can appropriate the funds for running the government, and that this is one of the most important legislative checks on the executive.
But does Congress really treasure and protect this power? Not when politics or ideology are involved. When a Democratic Congress created the Consumer Financial Protection Bureau in the Dodd-Frank Act of 2010, it provided that the agency would be funded entirely by the Federal Reserve, not through annual appropriations from Congress. The idea was to protect the agency from future lawmakers’ influence. So much for Congress’s respect for its own power of the purse.
In reality, Congress reserves for itself the ability to complain about the abuse of its constitutional authority while happily giving it away when that is politically or ideologically advantageous.