As Mark Davis says, “Trump makes everyone better.” Well, maybe not the sad section of the “conservative” commentariat driven mad by the Great Big Ugly Man, but his administration has been a refiner’s fire for lifer politicians like “Cocaine Mitch” and Lindsey Grahamnesty. In the same way, his presence has unmasked the long-hidden corruption of our federal law-enforcement and intelligence community, last disinfected in the mid-1970s by the Church Committee. Now, President Trump’s threat — to use two laws (not a pen and a phone), passed in the 1970s and 1980s, to legally reallocate particular current appropriated funds — is sparking a renewed interest in reforming national emergency authority. More goodness!

There are real concerns, from multiple points in political space, about presidents being granted, or asserting, “emergency” powers. Many real concerns seem to arise from confusing language, prompting misunderstanding. All the real concerns should be distinguished from false claims, like those of Sen. Marco Rubio, a member of the original illegal alien amnesty “Gang of 8.” His posture of worry about what a future Democratic president will do is a howling fraud, both because he knows everything we will review below, and because he has proven himself allergic to real border and immigration control. Likewise, we may discount CNN, the paper dying in darkness, and all those poor souls discombobulated by the Great Big Ugly Man. Setting all the false fears aside, let us consider the real concerns.

Clearing confusion from language:

Words sometimes have special meanings in particular settings. “Terms of art” are words or phrases that are assigned special meaning inside a profession. When we are not in on the lingo, we can be confused or react on the basis of our own understanding of meaning.

“National emergency” is one such term of art. It is, unfortunately, loosely defined in the US Code. Instead of a definition section specifying the boundaries of meaning, Congress punted to the president. However, they limited the power of “national emergency” by only granting powers under “national emergency” within sections of other laws that grant the president special authority during “national emergency.” So, “national emergency” is not “abracadabra,” granting the president unspecified and unlimited powers. Instead, it is “open sesame,” unlocking current “national emergency” sections of other laws.

Just as it is important to understand that “national emergency” is “open sesame” in federal law, so, too, we should understand that natural language standards, and our personal assessments or yardsticks, just do not matter. They do not matter, no matter how loudly amplified by our favorite talking head or advocacy group. What matters is the actual operation of the actual laws. The “411” on “National Emergency” and Declare National Border Emergency, Kill Two Birds with One Stone sought to address the actual language of the laws. Challenges and concerns arising from those essays, as well as from discussion with friends, prompted this one.

“Joint Resolution“ is another term of art. Congress is free to wave around pieces of paper and make speeches for the video cameras. However, when they want to actually force the president to do, or cease doing, something through a “joint resolution,” that document becomes just another kind of bill, subject to the exact same constitutional requirements of presentation to the president for signature or veto. To “enact a joint resolution” is to get the House and Senate to vote for the same resolution, and then get the president’s signature. If the president vetoes the “joint resolution,” Congress may try to override the veto, with two-thirds in both the House and Senate voting “Yes.”

Current state of law

The National Emergencies Act of 1976 was intended to clean up past perceived abuses while setting rules for future declarations of national emergency. It ended open-ended declarations of “national emergency.” Presidents must both publicly publish any declaration and periodically renew it. The National Emergencies Act did not grant any blank check or open-ended authority to the president. Rather, the powers which a president accesses through the declaration of a “national emergency” are themselves specified in sections of other legislation, forming a limit on the real extent of “emergency” powers.

So, the real issues of abuse arise from two sources: the possible inclusion of “national emergency” powers in other laws without careful public debate and transparency, and long-term serial renewal of a “national emergency.” The second appears more concerning than the first, thanks to the results of an easy series of searches on the official congressional website containing the US Code.

“National emergency” powers in other laws:

Are there “national emergency” clauses in federal law, waiting to be sprung on us? This should be fairly readily knowable, thanks to public access to an easily searched source of the current US Code.

There are 231 uses of “national emergency” in the US Code. Click here to do the search yourself. There is nothing about environmental law, nothing about seizing guns. But what if they just slid in a reference to the title and section numbers? That search yields only 47 results. Please try it for yourself. Searching the U.S. Code for “National Emergencies Act” — when you put the words in quotes to limit the search to all three words together — yields 37 results.

These seem to be pretty well-limited lists. Congress has not larded our laws with “national emergency” clauses. I was pleasantly surprised.

Long-term serial renewal of “national emergency:”

Is renewing a “national emergency” over and over again like the decade or more of “contingency operations” funding? The Congress and presidents pretended that ongoing military operations were so unpredictable that they just couldn’t include them in the budget. This convenient mutual political fiction let everyone pretend to be a little fiscally responsible without ever having to choose between guns and butter. It still added to the national debt, but no elected official had to make any hard choices.

The same issue arises from perpetuating “national emergencies.” How can it be that there is a continuous “national emergency” regarding Iran since President Carter first signed it? This is a permanent “emergency,” calling to mind the cynical naming of the Mexican Institutional Revolutionary Party (PRI).

The Congress passed a vague law with fairly weak limits and oversight. It may well be that Congress should finally take its responsibilities seriously and try to define “national emergency.” I doubt they will, as it is not an easy thing to tighten up legislation without placing them all on the hot seat if Something Very Bad happens that they inadvertently cut out of their definition of “national emergency.” If the President Trump effect prompts any legislative movement towards real reform, the target should probably be limiting “national emergency” renewals.

“National emergencies” should pass from the president’s determination, to mandatory review and regularization into law by Congress and the president, after a limited time, perhaps three years. Language, like that in the current law governing consideration of a joint resolution terminating a national emergency, should be used to force prompt consideration and limit political maneuvering.

Perhaps, besides renovating our national sovereignty—effectively reasserting our right to say who does, and does not, get to enter our country—the shock of this declaration of “national emergency” will move Congress to responsibly reform the laws. President Trump is demonstrating remarkable restraint and respect for the Constitution, that seems to be mostly used on rolls in the Congressional washrooms. Perhaps this threat of aggressive use of existing law will prompt a healthy Article I response. Who knows, Congress might even start using the Constitution as a limiting guide to lawmaking, instead of its apparent routine use in the Swamp. That would go a long way towards renovating the republic.