Balkinization: Or Blame Congress

Comments:

The NEA was meant to check past POTUS seizures of emergency powers. I assume Congress wanted to maintain those checks even after they lost the legislative veto.

# posted by

Bart DePalma : 12:01 PM

Justice White's dissent noted around 200 other statutory provisions with a legislative veto. It would be informative to look at how all of the other cases were handled too. See, e.g.:

https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4212&context=lcp

As to their action here, it would be a question of the felt need for the legislation in question and how to go about narrowing its construction. Also, just how often did Congress use their legislative veto when they had a chance here? This would determine the nature of the "mistake." It is likely part of an overall lack of taking the power they have seriously, including not even spending time to consider past emergency orders:

https://www.lawfareblog.com/emergencies-without-end-primer-federal-states-emergency

I again think the wider issue of a legislative veto and possible alternatives is the bigger question at issue here. The article cited, for instance, a 1850s Attorney General opinion that left open its usage. That is, a resolution of Congress, pursuant to a law passed, might provide restraint on executive action. As is often the case, we are not just talking about stuff "invented" sometime after FDR was elected or Warren came on the Supreme Court.

As the dissent in Chadha noted, the question divided legal scholars and so forth. Thus, e.g., per Professor Segall's narrow judicial review principle (only things clearly unconstitutional), it might stand up.

# posted by

Joe : 2:05 PM

I think it's even worse than you say (not that you're wrong). Before the Emergencies Act and Chadha, a declaration of emergency would have been evaluated under Youngstown. That meant either Black's majority opinion or perhaps Jackson's concurrence. If the former, then then the emergency would have to fall under a direct delegation of Congressional authority; none of Jackson's 3 scenarios nonsense (technical legal term). If the latter, then the Court would have to decide which category the declaration fell into.

And there's the rub. Take Trump's latest idiocy as an example. Congress expressly refused to allocate funds for his wall. That would appear to place the "emergency" in category 3 and thus the Court would strike it down. However, the Emergencies Act provides for the option of a Congressional override (now subject to Chadha). Suppose, as seems likely, that the House votes to reject the declaration, but the Senate votes in favor. Which of Jackson's categories now applies? Is it category 3 because Congress rejected funds for the wall? Or is it category 2 because the relevant vote is the Emergencies Act override vote and not the spending power vote? So if it's the Emergencies Act vote, does that mean Congress is better off taking no vote at all, assuming the Court will then look to the spending bill vote, or will the Court read the failure to attempt an override as implicit consent?

It's a mess.

# posted by

Mark Field : 2:38 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 3:03 PM

Jackson’s categories were error and should be ignored.

POTUS may either exercise an Article II power or carry out a law of Congress. Trump is exercising the latter. The Constitution forbids any other exercise of power - emergency or otherwise.

# posted by

Bart DePalma : 3:04 PM

The militia act of 1792 authorized the President to call state militia into Federal service "whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act."

This being an early "national emergency" act. The act here was an attempt to put some limits on some open-ended possibility of executive action (a "sudden attack" before Congress could act is a prime scenario) as well as to deal with emergencies that might pop up in general. Dealing with some hijacking, or whatnot, by asking Congress to make an exception of such and such law is probably not a great idea.

So, the problem to me wasn't the act itself but its terms and breadth. As to the funding, I'm not sure where Congress "expressly" found that the specific "idiocy" (which involves more than that to be clear) was not allowed even with actual facts being present. The Congress did not fund the wall. It also didn't fund various things that might be necessary for some actual emergency.

I think an "express" statement would be necessary here. I'll just repeat that I disagree to some degree with Mark Field on Jackson's concurrence. One sees things thru the glass darkly at times, as they say.

# posted by

Joe : 3:32 PM

I'd lay out the whole case against Jackson's concurrence, but the margin is too small to contain it.

While I haven't read this article, just the abstract, it looks to me like it reaches the right conclusion: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3328945

# posted by

Mark Field : 3:43 PM

Also, I'm wondering about the Constitutionality of that militia act in light of Ex Parte Milligan.

# posted by

Mark Field : 3:47 PM

So SPAM seems of the view that POTUS Trump in carrying out this law of Congress can Trumpty-Dumpty whatever he thinks constitutes a "national emergency under that law. Mark sets forth how this becomes "a mess,' especially if Congress doesn't act because it probably cannot come up with a veto proof resolution, which might suggest to a court Congress' implied consent.

But doesn't the "take care" clause have a tad more meaning than Trump as the "master" per Lewis Carroll's Humpty-Dumpty of what constitutes a "national emergency"? Perhaps the emergency is that Mexico won't pay for the wall?

# posted by

Shag from Brookline : 3:50 PM

OFF-TOPIC: This essay:

"THE UNTOLD STORY OF HOW CONSERVATIVES EMBRACED THE BILL OF RIGHTS AND INCORPORATION"
By Calvin TerBeek / February 12, 2019

may be of interest to Gerard as well as to those following the evolution of originalism. The Legal History Blog's Saturday Weekend feature provides a link.. I wasn't aware of the disincorporation efforts of conservatives disclosed in the essay.

# posted by

Shag from Brookline : 7:34 PM

Here's the URL to the essay by TerBeek:

https://ahousedividedapd.com/2019/02/12/the-untold-story-of-how-conservatives-embraced-the-bill-of-rights-and-incorporation/

# posted by

Shag from Brookline : 7:36 PM

As to incorporation, the Supreme Court will by the end of the term deal with the incorporation of the Fines Clause [which seemed to be incorporated but competing dicta confused the matter] and how the Court writes the opinion will be interesting.

# posted by

Joe : 8:38 PM

The modern Congress finds actually doing it's own job terribly tedious, and occasionally it results in them getting blamed for something not turning out well.

So they're outsourcing all the work, and retaining just enough power to keep the graft flowing by threatening to act. That way they get what they really care about, and somebody else takes the blame if things don't work out.

# posted by

Brett : 7:30 AM

Brett is back in his anarcho-libertarian mode with his view of Congress' laches and keeping the " ... graft flowing ..." while at the same time completely ignoring Trump's violations of the emoluments clauses (regarding which Trump's defense is that the Trump Organization may have to file under Chapter XI). In the past Brett has blamed the Court and the presidency when served by Obama. Obviously Trump is Brett's White Night [sic]. Should we assume Brett's busy keeping his arsenal well regulated - and himself with prunes?

# posted by

Shag from Brookline : 8:56 AM

"while at the same time completely ignoring Trump's violations of the emoluments clauses"

There's no evidence that Trump has violated the emoluments clause, if it is interpreted as it has been from the start.

The idea that ordinary business profits could be considered "emoluments" would be a real shocker to our early Presidents, pretty much all of whom had extensive business empires, and kept them running while in office. This is a case of the "Washington" principle: If George Washington did it, and there hasn't been a subsequent amendment to prohibit it, it's OK.

# posted by

Brett : 10:45 AM

Shag:

Read the applicable NEA provisions. Congress gave POTUS incredibly broad discretion to define national emergencies because the concept is largely undefinable by statute.

Congress should replace the NEA with a short provision prohibiting POTUS from exercising any power not granted by Article II or a law of Congress. However, Democrats have spent the past century unconstitutionally delegating legislative and judicial power to the executive and are not about to reverse course now. They simply don't want Trump exercising these powers.

Hypocrisy, thy name is #resistance.

# posted by

Bart DePalma : 11:32 AM

So, Brett's Washington principle is that if Washington took foreign and/or domestic emoluments, that justifies Trump's principal [sic] goal to treating Article II's "take care" clause as taking care of Trump Organization's business dealings with foreign and/or domestic emoluments. Were there foreign/domestic emoluments involved in Washington's business?

# posted by

Shag from Brookline : 11:42 AM

When SPAM references something as "largely undefinable by statute," does he address this by standards of textualism, or merely his adulation of everything Trump?

# posted by

Shag from Brookline : 11:46 AM

Shag:

You are, of course, free to offer us your statutory definition of a "national emergency" where past Democrat Congresses failed.

# posted by

Bart DePalma : 11:59 AM

I wasn't aware that George Washington had anything in the nature of the international corporate business empire of the sort Trump has but yet again the person who people said was different is supposed to be oh so the same.

The matter has been spelled out in detail, including by experts in the field, who have shown that "if it is interpreted as it has been from the start," it would be shown that he violated it. This is a matter of some dispute, as constitutional issues tend to be, but the problem is not merely "ordinary business profits," but direct involvement in various ways with foreign individuals for which the provision was specifically in place to guard against.

It also is true that over time the understanding of constitutional terms, including concerns of bias and ethical conflict has changed some. For instance, John Marshall took part in Marbury v. Madison. That would be seen as blatantly wrong today. The understanding of corporations also changed over time, including the nature of their rights. And, so forth. The changing facts, however, even there using a "if it is interpreted as it has been from the start" standard could be factored in to show why Trump is breaking the clause.

THis isn't going to convince his supporters here, who on this matter wish to entrust top federal officials with more power and opening to corruption -- which people who did much to determine the proper approach "if it is interpreted as it has been from the start" such as Zephyr Teachout (who I recently saw at a local event) -- have written much the other way.

# posted by

Joe : 12:16 PM

Joe:

The intent of Emoluments Clause is clear - our POTUS was forbidden from receiving titles, estates or gifts from foreign powers because these were long employed means of gaining then subservience of lesser lords.

Our founders were largely members farm owners or merchants in a nation of former colonies who did most of their business overseas. The idea that the Emoluments Clause would compel Washington or Jefferson to sell their plantations because business profits from overseas trade were emoluments is absurd. No one even considered such an application at the time.

# posted by

Bart DePalma : 12:25 PM

There are actually multiple emolument clauses:

https://en.wikipedia.org/wiki/Emoluments_Clause

However, much of the attention is given to one.

# posted by

Joe : 12:27 PM

Query: How would a true textualist define the meaning of "national emergency" in a statute that does not provide a definition? (SPAM of course is not a true textualist.)

# posted by

Shag from Brookline : 12:29 PM

I'm not sure how a "true textualist" (whatever that means) would exactly define that term though there is a statutory definition of "emergency" and the act was passed with the understanding of past declarations of "national emergency" by former presidents.

http://www.duhaime.org/LegalDictionary/N/NationalEmergency.aspx

As Shag and others know, textualists generally have various (competing and flexible) rules on how to interpret text. The discretion that results was suggested by Rick Hasen in his book on Scalia (citing one early case of his where three quite reasonable approaches existed).

The open-ended nature of the term and all that the act allows leads to much concern, including from libertarians who argue that even if (maybe) Trump is on sound legal grounds, it raises serious constitutional issues. And, surely other concerns. But, if he's your guy, the whole thing will be fairly academic, and the level of passion at the overreaching of the federal government might be lessened. I speak hypothetically.

# posted by

Joe : 12:42 PM

Shag:

The text of NEA states a national emergency is whatever the POTUS says it is. Easy.

# posted by

Bart DePalma : 1:27 PM

SPAM at 1:27 PM responds as I expected he would. But the NEA does NOT "state" as SPAM claims. SPAM's view of "whatever the POTUS Stays it is" comports with this comment of mine on the preceding post by Gerard:

---

Tweedle-dumb and Tweedle-dumber seem to be imagining Trump sitting on his imaginary Mexico border wall on his call declaring a "national emergency" based this variation on Lewis Carroll in questioning the role of SCOTUS:

***
“When I use a word,” Trumpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Speaker Pelosi, “whether you can make words mean so many different things.” “The question is,” said Trumpty Dumpty, “which is to be master—that's all.”

***

A principled libertarian [oxymoronic?] would recognize this as authoritarianism.
# posted by Blogger Shag from Brookline : 2:28 PM

---

Not only is SPAM not a principled libertarian, he's not a true textualist. Easy.

# posted by

Shag from Brookline : 2:08 PM

Shag: But the NEA does NOT "state" as SPAM claims... "whatever the POTUS Stays it is"

Actually, that is precisely what the statute says:

50 U.S. Code § 1621 - Declaration of national emergency by President; publication in Federal Register; effect on other laws; superseding legislation

(a) With respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency. Such proclamation shall immediately be transmitted to the Congress and published in the Federal Register.

No matter how long you squeeze your eyes shut, clamp your hands over yours ears and yell, "No, no, no, no, no, no, no;" the text is not changing.

# posted by

Bart DePalma : 2:43 PM

I challenged SPAM's 1:27 PM comment reading as follows:

"The text of NEA states a national emergency is whatever the POTUS says it is.."

SPAM's response at 2:43 PM to my challenge sets forth the language of the statute he relies on. SPAM's 1:27 PM comment is his understanding, but that is not "precisely what the statute says." Rather, the statute states that " ... the President is authorized to declare such national emergency." The "such" refers to the preceding clause " ... during the period of a national emergency, ." I have not tried to change the text. Rather, that's what SPAM, a self-proclaimed textualist, has done.

# posted by

Shag from Brookline : 3:08 PM

"So, Brett's Washington principle is that if Washington took foreign and/or domestic emoluments, that justifies Trump"

The principle here is that if you think something Washington and the rest of the early Presidents did, without anybody raising an eyebrow, was accepting an emolument, you've probably got a screwed up definition of "emolument".

# posted by

Brett : 3:09 PM

"The principle here is that if you think something Washington and the rest of the early Presidents did"

They didn't actually akin to Trump and we don't just rely on "how things went in 1789 or so" when we apply constitutional law anyhow.

(See, e.g., "Originalism as Faith," including the idea that even if that is IDEALLY how we should do it -- it isn't really -- it has never actually been our law.)

# posted by

Joe : 3:14 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 3:25 PM

"and we don't just rely on "how things went in 1789 or so" when we apply constitutional law anyhow."

It's the same emoluments clause. You just want a new definition that makes Trump guilty. It's just more TrumpLaw.

# posted by

Brett : 3:25 PM

Shag:

Please.

Under the language of the statute...

during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency.

The only person declaring whether a national emergency exists is the POTUS.

# posted by

Bart DePalma : 3:29 PM

Based on SPAM's view, rising coastal waters that might impact Mara La Go could be determined by POTUS Trump to be a national emergency that he could declare?

The statute does not specify what constitutes "the period of a national emergency, [etc]....." or how such is determined. that gives rise to the POTUS's specified authority to "declare such national emergency."

SPAM is a FOXY textualist.

# posted by

Shag from Brookline : 5:07 PM

The only person declaring whether a national emergency exists is the POTUS.
# posted by Blogger Bart DePalma : 3:29 PM

Narrator: He’s only talking about GOP presidents.

# posted by

Bartbuster : 8:11 PM

Brett might check out this post:

http://legalhistoryblog.blogspot.com/2019/02/cunningham-and-egbert-on-corpus.html

for an abstract on an interesting article on the meaning of "emolument" during a period of time prior and subsequent to the 1787 Constitution based on corpus linguistics. Not only is a link provided to the article but also a link to the authors' amici brief they have filed with a pending case regarding Trump and emoluments, describing the brief as not in supportr of either party. Corpus linguistics has been utilized by originalists as a sort of scientific method to determine original meaning under originalism.

A couple of weeks ago, over at the Legal Theory Blog Larry Solum posted an extensive essay on corpus linguistics. I don't have the URL at the ready.

# posted by

Shag from Brookline : 8:19 PM

Shag: Based on SPAM's view, rising coastal waters that might impact Mara La Go could be determined by POTUS Trump to be a national emergency that he could declare?

Under this statutory language, Trump could declare your posts a national emergency.

# posted by

Bart DePalma : 9:08 PM

Shag:

The Cunningham & Egbert amicus is interesting, but it would be far more informative is the analysis looked at other examples of the term "emoluments" used with the Clause's parallel terms of "present," "office," "title" or any combination of these terms.

General terms often have different specific meaning when used in different contexts.

Under the Cunningham & Egbert approach, they would interpret the term "blue" in the sentence "I am blue" to mean the speaker was stating he was colored blue because the common use of the term "blue" was as a color.

# posted by

Bart DePalma : 9:26 PM

Perhaps SPAM isn't aware that the 1st A's Speech Clause trumps [sick!] the NEA. Otherwise, Trump would be able to declare SNL a national emergency and surround its studio with razor sharp barbed wire; but that would not stop the razor sharp parody/satire.

We need to hear from real textualists, not TEE Party caddies like SPAM and Brett, on the meaning of the text of NEA. Of course FOXY textualists ignore prefatory and other clauses when it suits their conservative purposes.

# posted by

Shag from Brookline : 9:28 PM

As cunning a linguist as SPAM attempts to be, the concept of "feeling blue" as sadness goes back to the 15th century.

Perhaps SPAM had in the back of his colorful mind "The Blues," a music genre that developed from America's early history as described in"

https://www.allaboutjazz.com/a-brief-history-of-the-blues-by-ed-kopp.php

Here's a taste:

"The blues has deep roots in American history, particularly African-American history. The blues originated on Southern plantations in the 19th Century. Its inventors were slaves, ex-slaves and the descendants of slaves—African-American sharecroppers who sang as they toiled in the cotton and vegetable fields. It's generally accepted that the music evolved from African spirituals, African chants, work songs, field hollers, rural fife and drum music, revivalist hymns, and country dance music."

Corpus linguistics works in contexts. Like the color "red" when used with "necks."

# posted by

Shag from Brookline : 9:55 PM

I don't think we ever need take seriously (if we ever did) the complaints of those about 'Congressional delegation' to the Executive of anyone backing this, because to the extent there is delegation this is that on steroids.

# posted by

Unknown : 8:10 AM

Shag: Corpus linguistics works in contexts.

Most definitely. However, the Cunningham & Egbert amicus used broad contexts to arrive at a broad public meaning. For example, instead of looking for examples of "emolument" used in combination with one or more of the Clause's parallel nouns of "present," "office," "title," the author's second analysis was "coordinated noun phrases."

This approach undermines the classic cannon of legislative interpretation ejusdem generis - where a general term is included in a list of a particular class of persons or things, the general term will be construed as applying only to things like those listed.

# posted by

Bart DePalma : 8:46 AM

Blogger Unknown said...I don't think we ever need take seriously (if we ever did) the complaints of those about 'Congressional delegation' to the Executive of anyone backing this, because to the extent there is delegation this is that on steroids.

What Article I power is Congress delegating in this case?

Once again, Congress may appropriate money with or without instructions. Article I does not require a line item.

# posted by

Bart DePalma : 8:49 AM

Giving an official a big pile of money and saying 'use this on whatever you think is important' is pretty much the epitome of delegation.

# posted by

Unknown : 9:48 AM

This comment has been removed by the author.

# posted by

Bart DePalma : 10:38 AM

Unknown:

Part of Congress's Article I power of appropriation is the ability to decide whether to appropriate money in designated line items or pots. The NEA is an exercise of that power, not a delegation to the executive.

# posted by

Bart DePalma : 10:40 AM

SPAM claim:

"This approach undermines the classic cannon [sic] of legislative interpretation ejusdem generis - ...."

is a dud, not what pure textualism calls for. But then SPAM is a FOXY textualist. And in addition to context, corpus linguistics deals with nuance in differing meanings of words, including nouns. Emoluments doesn't seem that parallel to the other words in the foreign emoluments clause. Maybe SPAM might run his objection through the data that Cunningham and Egbert used to test his objection. (I'm aware SPAM is parroting others' objections to Cunningham and Egbert rather that originality on SPAM's part.) But I appreciate SPAM's reminding me of "The Charge of the Light Brigade," which of course did not involve judicial canons.

Today is Presidents Day. We can reflect on Trump's version of Article II's take care clause: taking care of the business not of our nation but of Trump Organization, benefitting from the renting of rooms at his DC hotel to Saudi Arabia interests, inter alia, to compare with businesses of past presidents. Did France or England rent some of Washington's slaves? Or Jefferson's? Did Hitler buy clothes at Truman's haberdashery?

# posted by

Shag from Brookline : 10:46 AM

Indeed, it is. I would simply say, Trump is President, no asterix, and gets to do EVERYTHING any other President could do.

And if it troubles you that he gets to do something, the only legitimate answer is to take that power from EVERY President.

# posted by

Brett : 10:47 AM

That's of course delegation.

If I have the power to decide grocery decisions in my family and I give my teenager a bunch of money and say 'use this for whatever grocery purchases you think necessary' that's the epitome of me delegating my authority over that area.

# posted by

Unknown : 10:48 AM

To make the example more acute, let's say that in my family there's an agreement that I decide grocery purchases. There's a debate about how much red meat the family should eat. My wife says we need more red meat in our weekly diet. I tell her I don't think we need as much red meat as she argued for. But then I also give her a pre-paid card usable at the grocery chain nearby with the instructions "use this in any grocery emergency as you see fit." She then declares that the lack of red meat in our diet is a grocery emergency and goes and buys the amount I decided against earlier.

This is the situation we are in. There could not be a more exemplary example of a delegation of my authority over grocery purchases, and not a more bad faith use of it.

Let's be clear: conservative advocates of the so-called 'Lost Constitution' often complain about the following analogous situation: I tell my wife 'you can buy groceries, but they must weekly be less red meat than grains and vegetables.' This they complain about! At least there is some direction here! But the previous example is what these conservatives now embrace!

# posted by

Unknown : 11:01 AM