Emergency Declarations and Separation of Powers: The U.S. Constitutional Order in the Era of Trump

By Tanner Weigel, Staff Writer

In the United States, the three branches of the federal government perform different functions, which are enumerated in the U.S. Constitution. In theory, then, these branches of government hold equal standing, but provide checks and balances on each other. For example, Presidents can veto bills that come out of the Congress; the Supreme Court can rule on the constitutionality of legislative and executive actions; and the House can initiate impeachment proceedings against a President (among many other checks).

The idea of separation of powers can sometimes enter hazy territory, however. Look at the declaration of war. Article 1, Section 8 of the U.S. Constitution establishes that the Congress has the power to “declare war…and raise and support armies.” The U.S. President is then tasked in Article 2, Section 2 to be “commander in chief of the army and navy.” The War Powers Act of 1973 (passed in the aftermath of the Vietnam conflict), however, states that the President’s powers can be exercised (in addition to the normal declaration) with “specific statutory authorization” or “a national emergency created by attack on the United States.” The War in Iraq, for example, was not based on a formal, specific declaration of war. Instead, on October 11, 2002, Congress passed a joint resolution which authorized the use of force under the broad parameter that the President “defend U.S. national security against the continuing threat posed by Iraq.” I am not sure that those legislators who passed that resolution then imagined that the next president, President Obama, would use that same authorization as the basis for renewed actions in Iraq.

President George W. Bush with congressional leaders announcing resolution for use of force in Iraq, 2002. Courtesy of Wikipedia

I mention the example of armed conflict because it speaks to the difficulties that certain branches of the government can have, ultimately, when it comes to proposing and executing a policy that all parties involved believe passes Constitutional muster (and that’s not to enter even into the practicality or expediency of such actions). The War in Iraq, for example, may have started under legal bounds. But did years of war with no further guidance from Congress erode the credibility of the whole endeavor?

You see, what is interesting to me about this system of checks and balances is that there is inherently some sort of infringement of Constitutional protocol before the system actually kicks into action (if at all). Look no further than President Trump’s national emergency declaration on February 15th. The declaration invokes the National Emergencies Act and states that “a national emergency exists at the southern border of the United States.” Regarding the means to address this emergency, the declaration invokes “the construction authority provided in section 2808 of title 10” of the United States Code in order to start building a wall on the southern border. President Trump’s declaration in itself is not necessarily problematic. President’s can and do make such declarations legally. However, commentators and experts believe that the declaration fails to make the case that there is indeed an emergency on the border, and that (even in the case of a real emergency) section 2808 of the U.S. Code doesn’t even allow the use of the armed forces to construct a border wall as the declaration suggests.

And so, the stage is set where many believe one branch of government has overstepped its bounds. Congress could, pursuant to that same National Emergencies Act, “[enact] into law a joint resolution terminating the emergency.” But with a divided Congress (that is, Democrats control one chamber and Republicans the other), this is an unlikely course of action. Indeed, with Nancy Pelosi at the helm in the U.S. House, Trump is now starting to face the first real opposition to his agenda in Congress.

But for Trump’s critics to cry “constitutional crisis” is to act as though institutional tensions among the branches (particularly the legislative and executive branches) have not been simmering for years, if not decades.

Let’s look at Congress. Both the Senate and House must pass the same bill for it to go to the President and ultimately be signed into law. And even though Presidents can propose legislation and try to drive a legislative agenda, it is ultimately Congress that must take up any legislative action, engage in debate, and hammer out the policy that will ultimately be codified into law. But when the party in power in the White House happens to match that of the party that controls Congress, it’s almost as if the Congress turns into a machine devoid of its own personality whose sole purpose is to push through the President’s agenda. To an extent it makes sense. The so-called bully pulpit of the presidency allows the commander in chief to bring his or her case directly to the people; whereas a fractured Congress has more difficulty shaping and delivering a unified message.

President Obama enjoyed healthy Democratic majorities in both the House and Senate in his first two years as President. And the landmark changes to healthcare in 2009 were so tied to him (even though it is, again, the legislative branch that crafts and passes such changes) that more often than not we refer to “Obamacare” instead of the Affordable Care Act. But when Congress was far less amenable to the President’s agenda, Obama remarked that he had a “pen and a phone” (i.e, executive orders and the power of persuasion) to be able to continue his agenda, notwithstanding Congressional opposition. Take DACA as an example. The Deferred Action for Childhood Arrivals policy allowed certain undocumented individuals to have a reprieve from deportation. The policy, however, enraged conservatives in Congress and in the states, and led to myriad lawsuits. Many believe it to have been an example of executive overreach, and argue that, even if the policy is sound in principle, it is Congress’ responsibility to pass a law to actually give authorization for the policy. But Obama was facing an oppositional Republican House, and eventually Senate, and decided that it was much easier to use his pen than try for persuasion.

Speaker of the House Nancy Pelosi (L) and President Donald Trump (R). Courtesy of New York Post

Returning to Trump’s emergency declaration to build a wall on the southern border, the action again speaks to a President’s inability to work with another branch of government in order to achieve desired outcomes. But I would argue that Congress has in many ways invited executive overreach because it so often has abdicated its responsibility to govern and actually act like a functioning branch of government. The culprit is likely that of political parties. When Congress is divided, as it is now, there is a certain sense of political tribalism that begins to rear its ugly head; it’s all about posturing and criticizing the other side, hoping the next election will allow consolidated control for one party. Democrats want to destroy the President while Republicans are just holding out long enough, hoping they can prevail in 2020 and renew their agenda under consolidated conservative control.

For this brinkmanship to stop, Congress must retake its mantle as a separate and equal branch of government to that of the executive. Congress must, no matter its political composition, recognize when a President is overstepping the bounds of his or her power. Again, a system of checks and balances recognizes that there can and will be some violation of Constitutional protocol; when such a situation arises, we hope that institutions will be able to actually begin to balance and restore stability to the system of government. The U.S. Supreme Court has done this in many cases through a process of judicial review. But that, in turn, has made the judicial confirmation process a high-stakes game that has only inflamed partisan passions in recent years (but the depoliticization of the courts is a matter for a different day).

I believe President Trump’s recent emergency declaration is very problematic. But to say that his actions will spark a constitutional crisis is to forget that checks and balances often only come into play once some sort of misuse of power has been initiated. And if anything, Trump’s actions are but a symptom of a broader, ongoing crisis of institutions finding themselves beholden to intense and partisan ideological fights. The United States, and any country that is built upon principles of governmental restraint and accountability, will have to grapple with the ways that intense polarization is testing the ability of institutions to function. For Congress especially, it is time to rise above partisanship and exercise Constitutional authority to reign in executive overreach. These may be troubling times. But I am hopeful that institutions can regain their integrity and begin once again working for the common good.

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