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First Principles: When Is Executive Action Acceptable?
On Friday, President Trump took the step of declaring a national emergency for the purposes of helping build a wall on the US border with Mexico. I do not wish to litigate that decision here. If you want to discuss the merits or details of that decision, we already have a great conversation about that which you can find here.
Rather, I want to discuss the general principles that make one kind of presidential action acceptable and another not acceptable, and where the line should be drawn between the two.
I prompted by this comment in the above-mentioned thread from Ricochet member @manny. I had posed the question, if this was such a national emergency, why wait until now to declare one. Manny replied:
[The President] gave Congress the deference to tackle it first, which would have been the preferred method, but they punted. Given they punted, there is no alternative but to declare an emergency. Nothing is being done to solve the crises. So it’s time to take executive action.
If you want to see the full comment and its context, you can find that here.
I should correct something in this statement. Congress didn’t “punt,” they examined the situation and decided they did not share the President’s evaluation, and chose not to fund his proposed solution.
But this is interesting as a statement of general principle.
So, if the President sees a crisis or crises, asks Congress to approve a proposed solution, and Congress chooses not to approve the President’s proposed solution — Is it acceptable for the President to take executive action and do it anyway?
I think everyone reading this would object if a President Harris asked Congress to fund a Green New Deal, and when they refused, declared an emergency, and spent the money anyway, claiming that Congress “punted” and that “Nothing is being done to solve the crises. So it’s time to take executive action.” (After all, what could be a bigger existential emergency than climate change?)
So where is the line then? What makes the Trump example okay, but the Harris example bad?
I should state, unambiguously, that I see neither example as acceptable. It is not acceptable for a President to use executive powers to do an end-run around Congress. It might be different if Congress had not or could not specifically weigh in on the issue. But in the case of both the real example and the hypothetical example, the plan was presented to the Congress, they refused the President’s proposed solution, and the President claimed extraordinary executive powers to do otherwise. Presidents can and do frequently have their legislative will thwarted by Congress. It is not acceptable for them to then claim it is an emergency and do it anyway.
I’d also like to say, it makes me very uncomfortable to see a President declare an emergency and then use the military to do something that the legislature refuses to do. It strikes me as not only wildly inappropriate, but dangerously anti-republican, not only in the action itself, but the precedent it sets. The action smacks of despotism. The precedent is potentially republic-ending.
But perhaps not everyone shares my evaluation. Maybe I’m all turned around on the subject. Maybe there’s some angle I’m missing or some distinction I’m not drawing.
So I want to pose a few questions for discussion:
What is the general principle at work here? When is it okay for a President to engage what is, in essence, legislative action, when Congress refuses to do so?
And to those of you who approved of President Trump’s action on Friday:
Where are the lines between what is acceptable and what is not? And what is the limiting principle here?
Published in General
Libertarianism is all pie-in-the-sky idealism. Sure it is. LOL
Maybe it’s a good thing this is going legally challenged now. I’ve heard Democrats before wanting to declare climate change a national emergency that needs executive action. Like any law both sides are going to go to the extremes of the original intent of the law. So Trump is trying to set an ugly precedent but I think the Dems would or are going to test executive power over something that really isn’t an emergency despite Trump.
The general principal I have is that Congress legislates. It writes clear, well-defined laws with rigorous definitions as to what can or cannot be done. Congress does not delegate its authority to the Executive branch (for example, allowing executive agencies and department, staffed by unelected and unaccountable bureaucrats, to write regulations with the force of law). (NB: I do not think the National Emergencies Act meets the standard of “…well-defined laws with rigorous definitions as to what can or cannot be done.”)
The Executive administers the law and sets policy within the parameters of the law.
The problem here, @fredcole, is that Congress has for all intents and purposes abandoned its legislative responsibility.
Going on my understanding of the relevant and current laws (and I’m not a lawyer, so take that into consideration) if the underlying laws concerning the environment, energy policy, etc., permitted Kamala to transfer funds or allowed her to access certain powers when a national emergency is declared, then that’s acceptable. If she tried to do things not permitted by the underlying laws, that’s not acceptable.
A witness is allowed to say that they don’t understand a question. I would then provide a brief explanation, or I would ask the question in a different way. Every so often the Judge will say that she doesn’t understand my question, which is a strong incentive for to rephrase!
(Two quick points. First, all of my judges are female! Second, all family law cases are tried to the Court, and not to a jury, so theatrics are usually lessened.)
Isn’t this just another flavor of the war powers act problem?
Either.
Is it suitable to you?
Is it tolerable to you?
Because it is neither to me.
So, Hank also mentioned this standard that it’s “legal.”
We should be clear about this. In this case, “legal” means “some lawyer found wording in the law that could possibly be construed as allowing this.”
There’s some difference of opinion as to whether this is “legal” and just how tenuous the arguments of legality are. Trump, when he announced this, also undermined his own case.
We’ll find out if the courts agree soon enough.
Yeah, dude. Study some history.
I mean, idk as there’s a better argument for anarchism than WW1.
Excuse me, but it specifically did not. It literally just passed a budget, which the President signed into law, and specifically did not fund this project to the President’s request.
It legislated. The President just didn’t agree with the results. So he has declared an emergency and will now use the military to do something Congress chose not to do.
Similarly, we would be better off with no central banks anywhere, than what we have now. In theory they are a good idea if all they do is back up the financial system in a punitive way, but that’s not what happens. I swear to god if we only had private money right now far more people would be better off and we wouldn’t be having all of this social and political insanity.
This is a very hard thing understand, but the reason we get into this mess is it’s better if Western Powers—the USA basically—have a hegemonic currency so we can throw our weight around. Better us then someone else.
There is no value added by government creating nonpublic goods, especially at the federal level. It’s all negative. Government actuarial systems are great on paper but all they do is create massive unfunded liabilities— i.e. stealing from other people, not progressive funding of a social safety net—and socialist capriciousness.
Here’s my next question: when you have politicians point a gun at our heads and force us to get into an auction for Progressive tax brackets and deductions, what good is that? There is no value added there.
Everyone whines about Ronald Reagan and real conservatives and so forth, but the fact is no one has done anything about this. You are better off getting in on the action because the system can’t be improved. The debt to GDP never improves.
Here’s another question: What if you had “experts” do it? Do you really think they could set all of this stuff so the economy and society would just hum right along? Of course they can’t. It’s all guesswork. It’s a complete joke.
All of this stuff is just dead weight. Flat tax only. It’s very sad that we cannot go back to straight consumption taxation.
Now throw in the fact that all the media does is support and excuse statism.
Murray Rothbard was a lot more sane than most people in power or academia.
I’m referring to the National Emergencies Act, which give POTUS wide latitude in declaring an emergency. Latitude so wide, in fact, that anything he says is a national emergency situation is one. Thus allowing him to work around Congress in accessing portions of existing law that come into effect in a national emergency.
Congress designed it this way. They could have said “X, Y, and Z comprise the situations where POTUS can declare a NatEm.” They didn’t. I know that not all emergencies (as the average Joe understands the term) can be foreseen., but Congress just punted to the Executive.
I’ll also note that Congress still refuses to legislate in the face of this insult to their powers. Congress can end the “emergency” all by itself. Sure, it would take a veto-proof majority. I get it; that’s a difficult thing to pull off. Yet they’re hitting the courts instead. And I predict that when the cases hit SCOTUS (as they most assuredly will), the High and Mighty Rulers of Us All will essentially say, “Congress gave themselves the power to end the NatEm declaration. This is thus a dispute that belongs in the political branches. Take it to them.”
This really is true. I heard a caller read it verbatim on talk radio. I couldn’t believe it. You combine that with the fact that the Mexican carteles control all illegal border crossing, both drugs and illegal immigrants, I’d say he’s got the right to do it.
Just to add more detail, the reports from border control show that the cartels are very systematicAnd sophisticated about how they manipulate what happens on the border. A wall would be a big improvement. They should’ve done it decades ago.
I didn’t want the President to declare a national emergency for wall construction, so it isn’t suitable for me, no. But it isn’t terrible, either. Your other example, of a green new deal implemented through such a declaration, would be terrible.
I will tolerate the President using a national emergency declaration to build the wall, as long as the courts do. It seems well within both his statutory power and his Constitutional authority. I would not tolerate a President using a national emergency declaration to implement a green new deal, because the terms of that are far outside of the President’s statutory authority. I’m pretty sure the courts would agree with me.
What form my intolerance would take is, practically speaking, hard to say.
Fred, if you find it intolerable when a President executes the function of his office in accordance with the law and his Constitutional authority, I guess I’m glad that we live in a nation of laws and not a nation of Fred.
Heh. I was teasing Rufus about his typographical error. The government is indeed a menace, just as surely as meance is not a word.
But back to the bigger point. It seems that you, Fred, consider the legal, Constitutional conduct of a President to be intolerable, if the President and/or the specific act isn’t to your liking. Presidents do lots of things I don’t like, but that I tolerate because I respect the rule of law and the Constitution. That’s what it means to live in a nation of laws.
As I’ve said elsewhere: welcome to adulthood.
Joe diGenova has some really brutal criticism of the way the law was written and Congress right at 10 minutes. Congress did it to themselves. Now everyone has to live with it.
Look I did say a reasonable argument not a sure thing. That said the issue is not that a lawyer found a word that could possibly be construed as allowing this. The issue is that there are literally no words. There is nothing establishing what is or isn’t an “emergency” under the act or what time line was needed. The only thing the act deals with is that it is good for a year and Congress can over turn it with a veto proof vote.
There is no way to undermine this when he announces because he can declare anything at anytime an emergency. Under the Act emergency simply does not mean a sudden crisis. It has virtually no meaning other than a problem I want to solve.
So, back to your original question: what are, or should be, the limits of this kind of executive action?
That’s the short answer.
The longer answer gets into one’s idea of appropriate government function. I consider securing the border appropriate, so I don’t find this particular action objectionable, even though I think it’s likely to cause a lot of kick-back from the left and the courts (but I repeat myself).
Much, perhaps most, of what the federal government does I would rather it didn’t do, but I’m distinguishing between that kind of objection and the principled objection to the President invoking his so-called emergency authority.
I generally prefer that the power of the executive branch be tightly limited, tightly construed by courts. Obviously some interpretation by the Executive is necessary – congress cannot, as a practical matter, define every term in their legislation. So, when executing the laws, the Executive will naturally have some interpretative powers which will carry the day until Congress corrects it.
But I think it is necessary for the leash to be as tight as possible because I think the biggest threat to a republic (not the only one, but the one most likely to materialize) is the accumulation of power in the executive branch. Human beings have a natural preference for a strongman, for a king, to be ruled. There may be lots of theories on why this is the case, but history suggests it is true whatever the reason. And so, this is the thing to primarily be on guard against, and to make sure to teach every generation to guard against. A republic is not natural, the rule of law is not natural, and so you have to work at maintaining them all the time.
I’m describing here what I think the law ought to be, not necessarily what it currently is. That said, I don’t think it is nearly as settled as Henry and danok1 seem to think regarding this emergency declaration. Congress did not define the term “emergency,” but it did use the term “emergency” which carries with it a certain natural meaning, and therefore implied limitations. Congress did not say “serious problem,” or “matter of grave concern.” In other words, I think there has to be an actual emergency, within the common meaning of that word. I do not believe the frequent rhetorical, hyperbolic use of that word in debates on all sorts of issues leaves it open to broad interpretation in the context of this statute. I don’t believe the president was given the authority to define that term without restriction.
I agree, but that’s not the law (usual “I’m not a lawyer….”). Otherwise, how would a declaration such as “Blocking Property of Certain Persons Under-mining Democratic Processes or Institutions in Belarus” (made in 2006 and still in effect) be a National Emergency for the USA?
Or how about this one, from 1997, still in effect: Blocking Sudanese Government Property and Prohibiting Transactions with Sudan?
Look at the list at the Brennan Center. Very few of the declared NatEms meet your “common meaning of the word” criterion. And please note that most of them are about things happening far away from the U.S.
The vast majority of past and current National Emergencies fail to meet your criteria. Sanctions on the former President of a small country in Africa is not an Emergency and frankly not even that important.
The Executive Branch is frequently called on to define the terms in a bills. Numerous past Presidents have done this with Signing Statements. “I am signing this bill and interpret it to mean X”
The precedents say the Executive Branch can define words that Congress leaves undefined and that Emergency under the Act does not mean Emergency in common language.
I’ll respond to Jager, too, since you make similar points:
I don’t know enough about the circumstances that led to these declarations to compare them to the issue at hand. There may be huge distinctions in those circumstances that would change the analysis. But even assuming for the sake of argument those were not emergencies – so what? Power was abused back then so we must allow it to be abused now? Were those declarations challenged in court? Did congress ratify them at some point?
The tendency to look at the previous declarations just highlights the danger of what the president is doing here. This will now become the precedent that future presidents point out. This will further enhance the executive branch power because of this exact line of argument – that is, saying, “See! There wasn’t an emergency back then so there doesn’t really have to be one now. We win!” – that contributes to the expansion of executive power. If the president succeeds here, future presidents will need to pay almost no attention to the word “emergency.” The president essentially has all the power Congress intended to give him only in emergencies, any time he wants them.
As I point out above, that is the danger that must be guarded against. The better result is that the court says “No, these were all wrong and the word ’emergency’ actually means something, and we’re going to stop the expansion of power now.”
Here are the statements of 20 Senators in opposition to Trump’s “Emergency/Executive” Orders:
Senator Susan Collins (R-Maine): “disappointed” “Such a declaration would undermine the role of Congress and the appropriations process.”
Senator Lisa Murkowski (R-Alaska):“[doesn’t] think this is a matter that should be declared a national emergency.”
Senator Pat Toomey (R-Pennsylvania): “I never thought that was a good idea. I still don’t. My view is that this is better to be resolved through the legislative process.”
Senator Lamar Alexander (R-Tennessee): “Declaring a national emergency is unnecessary, unwise and inconsistent with the U.S. Constitution.”
Senator Ben Sasse (R-Nebraska): “We absolutely have a crisis at the border, but as a Constitutional conservative I don’t want a future Democratic President unilaterally rewriting gun laws or climate policy. If we get used to presidents just declaring an emergency any time they can’t get what they want from Congress, it will be almost impossible to go back to a Constitutional system of checks and balance. Over the past decades, the legislative branch has given away too much power and the executive branch has taken too much power.”
Senator Rob Portman (R-Ohio): “I agree with the president that we have a crisis on our southern border and that we need additional barriers and fencing. As I have said before, I would prefer we work together to find a legislative solution instead of declaring a national emergency that will likely be tied up in the courts.”
Senator Johnny Isakson (R-Georgia): “I have a lot of trouble with any one person having that much power without a check and a balance, even in a crisis… I’m not (universally) opposed (to) it, but I’m also not without reservation until I know how much power it’s going to grant. And if it’s solely one individual, I want to know how they’re going to execute it.”
Senator Marco Rubio (R-Florida): “We have a crisis at our southern border, but no crisis justifies violating the Constitution: Today’s national emergency is border security. But a future president may use this exact same tactic to impose the Green New Deal. I will wait to see what statutory or constitutional power the President relies on to justify such a declaration before making any definitive statement. But I am skeptical it will be something I can support.”
Senator Ron Johnson (R-Wisconsin): “It would be a pretty dramatic expansion of how this was used in the past.”
Senator Thom Tillis (R-North Carolina): “I don’t believe a national emergency declaration is the solution.”
Senator John Cornyn (R-Texas): “My concerns about an emergency declaration were the precedent it would establish… I also thought it would not be a practical solution because there would be a lawsuit filed immediately and the money would presumably be balled up associated with that litigation. I thought there were other, better alternatives.”
Senator Mike Rounds (R-South Dakota): “If you get another President who believes that climate change is the crisis of the day, that means they could then funnel money out of ongoing programs into climate change…”
Senator Chuck Grassley (R-Iowa): “I wish he wouldn’t have done it…I imagine we’ll find out whether he’s got the authority to do it by the courts.”
Senator Jerry Moran (R-Kansas): “Throughout my time in the Congress, particularly in the Senate, I have complained about administrations taking more and more of what is constitutionally the responsibility of the United States Congress… But I also complain that Congress allows it to happen.”
Senator Rand Paul (R-Kentucky): “not in favor… revenue raising and spending power was given to Congress.”
Senator Roy Blunt (R-Missouri): “While I’m in favor of what this president wants to do [on the border wall], I think it sets a dangerous precedent and I hope he doesn’t do it.”
Senator Mitt Romney (R-Utah): “I will reserve judgment on any potential executive action by the president until I am able to fully evaluate it, but as I’ve said, I do not believe declaring a national emergency is the right approach… I would also expect the president to stay within statutory and constitutional limits.”
Senator Mike Lee, (R-Utah): “My initial assessment is that what Pres. Trump announced is legal. Whether or not it should be legal is a different matter. Congress has been ceding far too much power to the exec. branch for decades. We should use this moment as an opportunity to start taking that power back.”
Senator John Barrasso (R-Wyoming): “I would prefer we get it done through the legislative process rather than a presidential emergency because I just think that’s not the path we want to do down… and the president or every president can decide if they want to use that or not. Presidents have used it in the past on things were there was complete bipartisan agreement. This is, at this point, disagreement on how to proceed so I think it would be the best for the President if he could get what we can get through this agreement, and then re-purpose other money to accomplish every goal that he has lined out in terms of border security.”
Senator James Lankford (R-Oklahoma): “The best thing that we can do is actually reprogram funds… That fund’s allocated to certain law enforcement entities or to national defense entities and to be able to say those funds can also be used for border security, including anything on a barrier. That stays within the parameters of the law, we don’t have to deal with a court case… If you get into a court case in declaring a national emergency, moving from one fund to another is going to get caught up in the courts for a couple of years and it doesn’t solve the problem.”
If these twenty Senators voted with the the 46 Democrats to disapprove Trump’s veto, they would be only one vote shy of over-riding his veto. Let’s see if they will stand their ground when it comes time to vote.
Hat Tip: The Bulwark:
https://thebulwark.com/conservative-critics-of-trumps-non-emergency-declaration-listed/
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Congress ratified them by not ending them, which is a power Congress reserved in the National Emergencies Act.
I think the Court should have no role here. As I noted in an earlier post, Congress has the power to end a NatEm declaration. I believe the Court will see this as a question to be resolved in the political branches.
The actual better result would be that Congress do their job better and write laws with specific definitions and meanings. Congress is the real place where this should be fixed. A legislature that cared about its powers would have ended this long ago.
I fully agree with you that Congress ought to reassert its power. But here again is where the tendency to cling to a powerful central figure can be a problem. If individual members of congress see their political fortunes as tied to the success of a president, because of his star power, or his status as the leader of their tribe, or whatever, they will have a very hard time giving him an “L” for the sake of preserving the proper separation of powers.
One of your justifications above seems to be that Trump is just doing this because Congress has been so derelict in its duty to define its own statutes, and so someone has to take the bull by the horns and make the call. Well, would that same logic apply to the Supreme Court? Congress won’t reassert its power and stand up to the president, so rather than defer to them under the political question doctrine you mention, perhaps the Court should use its powers of judicial review to reassert its power for them? I’m not a fan of this argument, myself, but just a thought. If you want Pres. Trump to do what Congress won’t, do you object to the Court doing what Congress won’t?
I’m not convinced the political question doctrine ought to apply here. I certainly see the logic there, and obviously it is something courts have used in the past to avoid judicial overreach. But I don’t think this would be judicial overreach. The president is commandeering funds appropriated by Congress for other uses. Once those funds are spent, they are spent, and can’t be reappropriated. The question before the court is not “wall” or “no wall,” which of course is a political question – it is, rather, whether these particular funds were legally spent by the executive. I believe that is a legal, rather than political question.
I received permission to reprint the entire article which I did on the Member Feed at
http://ricochet.com/598099/conservative-critics-of-trumps-non-emergency-declaration/
Note: I had to edit one of the people quoted who used the full word signified by “b.s.” otherwise the automatic CoC censor wouldn’t allow it!
There is an excellent article from The Bulwark about conservative critics of Trump’s Non-Emergency Declaration. I received permission to reprint it which I did in the Member Feed.
http://ricochet.com/598099/conservative-critics-of-trumps-non-emergency-declaration/
https://thebulwark.com/conservative-critics-of-trumps-non-emergency-declaration-listed/
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Centralized power is bad, yet it keeps getting more centralized.
Be sure to vote.
Amen!
Do you think it is within the legitimate purview of the executive to re-appropriate funds for a project Congress has specifically chosen not to fund?
Well, here’s the thing:
Look, the wall was never a serious policy proposal, it won’t do what it is claimed to do, and it will never be built.
But this emergency declaration has accomplished exactly what Trump intended it to do:
It got us talking about this instead of his catastrophic failure on the budget.