A version of this piece first appeared on the blog Balkinization.
President Donald 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. Trump is giving a national address on Tuesday to promote the wall with his national emergency proposal looming in the background. By late Monday evening, his aides seemed to be preparing the ground for an emergency proclamation.
Some critics, including my colleague Bruce Ackerman, have leapt too quickly to the conclusion that such a move would be lawless and might even subject wall builders to criminal prosecution. Others have claimed that it would be tantamount to tyrannical rule by decree and cited the Supreme Court’s 1952 decision reversing Harry Truman’s unilateral wartime takeover of the steel industry.
The truth is that the White House’s emergency gambit reveals the full extent to which Congress has already delegated 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. (Goitein 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 a 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. But as it happens, I have a book out this spring from Yale University 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 University 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 marshaled 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 Jan. 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 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 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 an emergency exists? Such a belief was not at all implausible in Lincoln 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. 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 a re-evaluation 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 with almost 20 years ago. Terrorist apprehensions take place almost entirely at airports and sometimes on the Canadian border. And there is no time pressure other than the government shutdown itself, which in turn is simply the result of the president’s inability to get Congress to agree with his proposal.
It appears that the federal courts may be the institution that will have to tell it like it is. The National Emergencies Act of 1976 created an elaborate system intended to allow the two houses of Congress to check presidential emergency proclamations. But that system has been a dead letter ever since the Supreme Court ruled a similar legislative veto unconstitutional in INS v. Chadha, decided in 1983.
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.
