Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
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Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
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Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
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Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
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Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
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Adam Winkler winkler at ucla.edu
As most readers of this blog will have seen, President Trump said on Friday that he was considering declaring a national emergency to build a wall on the southern border, despite congressional refusal to fund such a wall.On Sunday, the White House chief of staff confirmed the story, telling CNN’s Jake Tapper that the administration is well along in the planning stages of using presidential emergency powers to accomplish what Congress will not allow.Today, Trump’s emergency proposal is the lead story in the news.
The truth is that the White House’s emergency gambit reveals the full extent of Congress’s dangerous delegation of emergency powers to the executive branch of the federal government. Elizabeth Goitein of the Brennan Center has collected a daunting list of statutes authorizing emergency powers, which is super helpful on this point.(Liza summarizes the statutes in a recent article at The Atlantic.)The upshot?Declaring a national emergency to build the president’s ridiculous wall would be a national embarrassment.It ought to be unlawful, too.But whether declaring a national emergency to build a wall actually is unlawful under current circumstances turns out to be much closer question than it should be. The key statutory provisions are 10 U.S.C. 2808 (authorizing emergency reallocation of certain military construction funds) and 33 U.S.C. 2293 (authorizing emergency reallocation of certain civil works project funds).
I’ll leave the analysis of these heretofore obscure statutes to others, since readers here are better positioned to do it than I am.But as it happens I have a book out this spring from Yale Press on a theory of emergency power, based on a lost manuscript by political theorist, jurist, and Lincoln Administration insider Francis Lieber.Historian Will Smiley and I found the manuscript in the National Archives and Yale Press is publishing an annotated edition of it, along with a long introduction by Will and me.Not surprisingly, I think a bit of history from what is still the U.S.’s biggest constitutional emergency may help us see what has happened.
For a century and a half, the American Civil War has been a key case study for students of emergencies in constitutional democracies.As president, Abraham Lincoln exercised broad emergency powers.He marshalled troops to the capitol.He suspended the writ of habeas corpus, something the Constitution seems to vest in Congress in cases of rebellion and invasion.And on January 1, 1863, he issued the Emancipation Proclamation, freeing slaves in the rebellious states on the basis of military necessity.
Lincoln defended each of these acts as a part of his constitutionally-authorized emergency powers.But as Lieber -- the leading jurist of the law of the Civil War -- observed at the time, Civil war emergency powers did not give Lincoln unconstrained authority. Lieber was a fierce defender of Lincoln’s constitutional prerogatives.He believed deeply in a president’s inherent constitutional authority to do what is necessary to rescue the republic.But he also believed just as fiercely that the executive’s authority had limits.As Lieber saw it, a president’s claims of emergency had to be tested against the necessity of the moment.The law only extended emergency powers to the executive branch when an emergency actually warranted those powers.Lieber believed deeply that the courts stood ready to review proclamations of emergency power and to limit the president’s overreaching.
Today, this seems like a thin reed on which to rest the legal constraints against presidential tyranny.Will the courts really be willing and able to second-guess executive branch determinations of whether or not an emergency exists?But such a belief was not at all implausible in Lincoln’s and Lieber’s time.The executive branch was tiny; Lieber was called in because the War Department had only one principal lawyer.Moreover, the Supreme Court during the Civil War engaged in close review of the Lincoln White House’s decisions.
In privateering and blockade-runner cases involving the seizure of neutral and Confederate vessels, for example, the Court did not defer to the executive’s views.Even when the Court ruled in favor of the administration, as it did in the pivotal 1863 Prize Cases, the Court did not do so out of deference.Indeed, in dozens of admiralty cases during the war, the federal courts performed their own evaluations of the facts and the law.
Judicial review existed for military action on land, too.Union officers faced the very real prospect of damages suits in the courts, where unwarranted destruction or taking subjected them to personal liability for the injuries they caused.And directly after the war, in Ex Parte Milligan, the Supreme Court reversed a conviction obtained by the Lincoln Administration’s wartime military commissions.Lieber disagreed with the decision in Milligan because he believed that the beginning of white violence against the Reconstruction governments necessitated continuing federal military tribunals in the South.But he agreed that the Court had the authority to closely review the executive branch.
In the intervening century and a half, however, the culture of close judicial review of executive action in wartime has diminished.For one thing, the vast growth in the executive branch has led the president’s resources to dwarf those of the courts.(The Lincoln White House called on Lieber because there wasn’t enough legal expertise in the administration; today it is commonly said that there are 10,000 lawyers in the Defense Department alone.) Forms of serious judicial review of executive branch assertions persist, to be sure, even in national security matters.Witness Hamdan v. Rumsfeld and the post-9/11 sequence of cases.But the world of tort suits and damages actions against federal officials and military officers is now a thing of the past.The institutional context now creates far more deference than ever existed in Lieber’s day.
The Trump threat may produce reevaluation of this judicial deference to executive determinations.As Jennifer Rubin, Preet Bharara, and others have pointed out, there is simply no national emergency warranting the use of emergency powers.Apprehensions of people entering at the border are down by more than 1.5 million per year as compared to twenty years ago.Terrorist apprehensions take place at airports and at least once on the Canadian border, not on the southern border.And there is no time pressure other than the government shut-down itself, which in turn is simply the result of the president’s inability to get the Congress to agree with his proposal.
And it appears that the federal courts may have to be the institution to say so.The arrangements in the National Emergencies Act of 1976 seem to be a dead letter; part of the 1976 scheme is almost certainly unconstitutional thanks to INS v. Chadha.
The Civil War’s robust model of emergency powers mobilized the force of the federal government when the country confronted the gravest emergency in American history.To allow those powers to govern this juncture would be to skip past tragedy to farce.The courts played a big role 150 years ago.If called upon, let’s hope they do so again.
John Fabian Witt is Allen H. Duffy Class of 1960 Professor of Law and Professor of History at Yale University. You can reach him by e-mail at john.witt at yale.edu