Congressional Responses to Emergency Declarations

David Super

Posted 1:55 PM by David Super [link]

How the Supreme Court Wrecked the System Congress created for Declaring Emergencies

Rick Pildes

Over at the Lawfare blog, I've posted this essay, which elaborates on a point Gerard Magliocca flagged on this blog:  The National Emergencies Act as originally enacted permitted the two Houses of Congress, acting jointly, to veto any presidential declaration of emergency.  The Supreme Court's 1983 decision in INS v. Chadha, which held such legislative vetoes unconstitutional, eliminated this feature of the Emergencies Act.

 I don't think even those of us who are constitutional law scholars have appreciated the full range of ramifications Chadha has for the current institutional dynamics between the courts, the President, and Congress over the border wall and the presidential declaration of an "emergency" -- or for separation of powers issues more generally. Here are some excerpts:

Here’s how the NEA was supposed to work. Enacted in the post-Watergate era, the NEA’s aim was part of Congress’s general effort in that era to rein in presidential power. In the NEA, Congress sought to reclaim greater congressional control over what had become the promiscuous presidential use of emergency powers. The act first ended all previous states of presidentially declared emergencies. It then set up a new, formal process through which presidents were given the power to declare emergencies. But the key to the NEA was Congress’s determination to maintain a check on the power it was delegating to the president.
That check came in the form of the power Congress retained, through a concurrent resolution of the House and the Senate, to terminate any presidential declaration of emergency. A concurrent resolution is not a statute: the president plays no role in such a resolution. If Congress had to enact a new law to override the president’s declaration of emergency, the president would inevitably veto it. In essence, Congress said to the president: “We accept  the need to give you power to declare emergencies, but we reserve the right to decide whether we agree with that declaration in any specific circumstance.” This concurrent resolution, known as a legislative veto, was a means through which Congress and the president shared the power to define emergencies.

Through this legislative veto, Congress—not the courts—was designed to be the institutional forum to determine whether the president was right in declaring an emergency. If both houses of Congress disagreed with the president, that was the end of the matter: The declaration was terminated. Courts would play no role. Congress could also be comfortable granting the president broad initial power to declare an emergency, given the power it retained to reject that determination. Attempting to define “emergencies” in advance was also not as pressing a concern, because Congress could decide, after a presidential declaration of  emergency, whether it agreed. . . .

Chadha, though not as well-known as some other separation-of-powers decisions, might also be the most consequential decision the Supreme Court has ever issued in this area, in terms of the real-world balance of power between Congress and the president. Consider how different the current border-wall emergency confrontation would be if Congress could override the president’s declaration through concurrent action of the House and the Senate. Instead, Congress will be reduced to a largely symbolic role, because after Chadha¸ the president has the power to veto any action of Congress.

With Congress now powerless as a forum for effective action on such an issue, it is no surprise that those who disagree with the president will rush to the courts. Courts are traditionally reluctant to second-guess presidential judgments in areas such as foreign affairs, national security and emergencies, and Chadha was not designed to aggrandize judicial power.  But ironically, Chadha’s inevitable effect is to thrust courts into the leading role in determining whether the president has properly declared an emergency. That is true not just under the NEA but also under many of the nearly 200 federal statutes whose legislative veto mechanisms Chadha invalidated. When courts struggle over their role in evaluating whether the president has legitimately declared a national emergency, it is worth recognizing that it is the Supreme Court’s decision in Chadha that has pushe the courts onto center stage.

Posted 12:55 PM by Rick Pildes [link] (4) comments

Labor and Constitutional Political Economy

Joseph Fishkin

A growing number of us in the legal academy are talking about political economy and its relationship to law. There’s a sense of community among us and a sense of change afoot. There’s even, inevitably, a blog. But what is the relationship between LPE and constitutional law? In a series of articles and our forthcoming book, The Anti-Oligarchy Constitution, my coauthor Willy Forbath and I argue that an authentically American tradition of constitutional argument centers on a particular set of claims about constitutional political economy. We argue that it would be good for Americans to extend this long-submerged tradition and to recognize the deep connections between it and a number of arguments taking flight in our current politics.

One response to this is: give it a rest! The Constitution is not our friend, any invocation of the Constitution leads inevitably to a hostile courtroom, and we’re better off resting our claims on anything besides the Constitution. Over at LPEblog, Willy has written a series of three posts that may be of interest to Balkinization readers responding to this line of critique, with a particular focus on labor rights.
Posted 7:30 AM by Joseph Fishkin [link]

Or Blame Congress

Gerard N. Magliocca

Here's a different take on my prior post. After Chadha, Congress could have done nothing to the National Emergencies Act. Then the Act would have been unconstitutional, as there would have been a good argument that the legislative veto provision invalidated by Chadha was not severable from the rest of the Act. Or Congress could have rewritten the Act to narrow its scope given that a declaration was now harder for Congress to repudiate..

Instead, Congress chose the worst option. They did not narrow the scope of the Act. They did not duo nothing. They instead simply changed the legislative veto provision to comply with the Presentment Clause as Chadha required. Someone could write a great paper about why this mistake occurred.
Posted 11:11 AM by Gerard N. Magliocca [link] (51) comments

Blame Chadha

Gerard N. Magliocca

With the President on the brink of declaring a national emergency, let us briefly review how we got here. In the National Emergencies Act of 1976, Congress provided that such a declaration could be rendered null and void by a joint resolution of Congress. Subsequently, the statute was amended to say that such a resolution must be signed by the President or enacted after a congressional override. That makes a BIG difference. If the original standard were in place, there is a good chance that the President would not be doing this now and, if he did, would be repudiated by Congress.

Why was the provision amended? Because the Court's decision in INS v. Chadha declared that Congress could not delegate its authority subject to withdrawal by anything other than the full procedure set forth in the Presentment Clause. Indeed, Justice White's dissent in Chadha specifically discussed the National Emergencies Act in arguing that the Court was making a mistake by using a formal interpretation of Article One, Section Seven to sweep away all legislative veto procedures (not just the one-House version at issue in Chadha) including those that addressed national security. Now the chickens are coming home to roost.
Posted 10:09 PM by Gerard N. Magliocca [link] (36) comments

BDS and Masterpiece Cakeshop

Andrew Koppelman

Posted 7:29 AM by Andrew Koppelman [link]

Resisting Gloss's liquidation

Neil Siegel

In recent years, legal scholars have become increasingly attentive to the constitutional role played by historical governmental practice in discerning the Constitution's separation of powers. Theories of “historical gloss” in particular have highlighted the role of historical practice and attempted to situate it within constitutional theory. The U.S. Supreme Court, in recent decisions, has also emphasized such practice. Although it is easier to accommodate a role for post-Founding practice within non-originalist approaches to constitutional interpretation, some originalist scholars, most recently Will Baude, have also sought to take account of at least some of that practice, under the label “Madisonian liquidation.”

It is important to understand the originalist turn to historical practice. Unlike the changes in originalist theory over the years—from a focus on the intentions of the Framers, to the understandings of the ratifiers, to the original public meaning of the constitutional text—and unlike the originalist embrace of judicial precedent and the idea of “constitutional construction,” originalist efforts to claim a greater role for historical practice as within the originalist project have not yet received much attention or recognition as such. Like those other “impurifications” of strict originalism, however, the originalist turn to practice presents originalists with difficult tradeoffs.

In a new article, my Duke colleague Curt Bradley and I explain the originalist turn to practice, describe the historical gloss approach, compare gloss with both the narrow and broader accounts of Madisonian liquidation respectively developed by Caleb Nelson and Baude, and suggest that the differences between gloss and liquidation concerning the proper role of historical practice in constitutional interpretation render liquidation less normatively attractive and less descriptively accurate than gloss. We also question the extent to which the accounts of liquidation offered by Nelson and Baude can properly be attributed to James Madison.

Here is the abstract:

The U.S. Constitution is old, relatively brief, and very difficult to amend.  In its original form, the Constitution was primarily a framework for a new national government, and for 230 years the national government has operated under that framework even as conditions have changed in ways beyond the Founders’ conceivable imaginations.  The framework has survived in no small part because government institutions have themselves played an important role in helping to fill in and clarify the framework through their practices and interactions, informed by the realities of governance.  Courts, the political branches, and academic commentators commonly give weight to this post-Founding governmental practice in discerning the Constitution’s separation of powers.  Reliance on such practice is sometimes referred to as the “historical gloss” method of constitutional interpretation.  Some originalist commentators have invoked a different term to describe the relevance of post-Founding practice to constitutional interpretation: “liquidation,” an idea that they ascribe to James Madison and certain other members of the Founding generation.  In this Article, we first provide an account of what must be shown in order to establish historical gloss.  Our account focuses on longstanding governmental practices that have proven to be stable—that is, practices that have operated for a significant amount of time without generating continued inter-branch contestation.  We then consider the extent to which the liquidation concept differs from that of gloss and whether, insofar as there are differences, those differences render liquidation more or less normatively attractive than gloss.  We argue that a narrow account of liquidation, offered by Professor Caleb Nelson, most clearly distinguishes liquidation from gloss, but that it does so in ways that are normatively problematic.  We further argue that a broader account of liquidation, recently offered by Professor William Baude, responds to those normative concerns by diminishing the distinction between liquidation and gloss, but that significant differences remain that continue to raise normative problems for liquidation. Finally, we question whether either scholar’s account of liquidation is properly attributed to Madison.

Posted 10:35 AM by Neil Siegel [link]

Medicare for All: A Time for Honesty

Guest Blogger

E. Kent Yucel


Posted 8:00 AM by Guest Blogger [link]

Would the Pain-Capable Unborn Children Protection Act Be Constitutional?

Gerard N. Magliocca

In November, a Federal District Court in Michigan held the Prohibition of Female Genital Mutilation Act of 1995 unconstitutional. The Court reasoned, in essence, that the Supreme Court's decisions in Lopez and Morrison meant that this sort of local activity could not be regulated by Congress pursuant to the Commerce Clause or any other enumerated power. This was true even though the case involved a prosecution of doctors who were paid to do the procedure by a family. While states were free to ban the practice, the federal government could not.

My question is simple: If this opinion is correct, then would it not follow that a federal statute prohibiting a third trimester abortion under certain circumstances would also be invalid? I doubt that Congress can produce findings that third-trimester abortions have a demonstrable effect on interstate commerce any greater than female genital mutilation does.

One response to this, of course, is that perhaps the District Court erred in holding that the FGM statute is unconstitutional. I've having a hard time, though, understanding how the two examples can be distinguished.
Posted 11:20 AM by Gerard N. Magliocca [link] (29) comments

Are we in an unrecognized constitutional crisis?

Sandy Levinson

The term "constitutional crisis" is much bandied around these days.  Jack and I wrote an article about a decade ago offering some quite stringent conditions for a genuine "constitutional crisis" to exist, and he has argued that its use during the Trump presidency has been misleading.  He and I might slightly disagree on the main point, for I do believe that the failure of the Constitution to provide an alternative to the clearly inefficacious mechanisms of the Impeachment Clause and the 25th Amendment to get rid of a president in whom we deservedly have no confidence at all in matters of war and peace, life and death, or, for that matter, keeping the country together in some semblance of "domestic tranquility," may serve as evidence why the Constitution itself is the crisis at present.

But I don't want to rehearse those arguments once again.  Instead, I am intrigued by piece in the Washington Post describing the increasing concern, including on the part of Republican senators themselves, about the abject failure of the remarkably lackadaisical and insouciant Trump to name candidates for offices subject to the "advice and consent" of the Senate.  Instead, he appears to prefer that "acting" officials remain in place.  The Post story suggests that Trump actually prefers such officials because they are more "responsive" to his dictatorial will.  "It gives me more flexibility," Trump is quoted as saying. 

Given the almost certain willingness of the GOP in the Senate to rubber-stamp Trump's appointments, including the announcement today nominating the egregious (though reportedly extremely hard-working) former lobbyist David Bernhardt, to continue gutting the Interior Department, perhaps one shouldn't really care, for example, that the current Secretary of Defense is merely "acting," as is, until William Barr is confirmed, the equally egregious Matthew Whitaker as Attorney General.  One certainly can't seriously the proposition that the Senate will truly attempt to assert its genuine independence from the Executive when both are controlled by the same Party.  But is this near-indifference, save for a few inside-the-Beltway cogniscenti, to the actual implementation of the Senate's role in confirming high-level appointments just another piece of evidence that we must realize that our constitutional order is increasingly dominated by a President (and not simply the institution of "the presidency") who can freely ignore what had been thought to have been basic precepts of that order? 

There is so much more to be worried about, with regard to the disaster that is Donald Trump, that this particular feature may indeed be relatively unimportant and thus unworthy of being classified even as a minor "crisis."  But even if we reject that label, is it not a breach of the Constitution, just another indication that Madison was correct in describing constitutions as basically creating only "parchment barriers" that could easily be breached by those with sufficient energy to do so?



Posted 4:27 PM by Sandy Levinson [link] (60) comments

Regulating Social Media -- my talk at the University of Virginia

JB

Posted 1:05 PM by JB [link]

Hardball, Again

David Pozen

Posted 5:28 PM by David Pozen [link]