The New York Times After Veto, Some Lawmakers See a New Emergency: Fixing the Act Trump Invoked

 

begin quote from:After Veto, Some Lawmakers See a New Emergency

WASHINGTON — One overarching law is almost always applicable in Washington — the law of unintended consequences. Time and again, Congress takes steps to fix a problem, only to end up further

After Veto, Some Lawmakers See a New Emergency: Fixing the Act Trump Invoked

 

CARL HULSE

 

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© Sarah Silbiger/The New York Times President Trump rejected legislation on Friday that would have blocked his declaration of a national emergency to fund a wall along the southwestern border.

WASHINGTON — One overarching law is almost always applicable in Washington — the law of unintended consequences.

Time and again, Congress takes steps to fix a problem, only to end up further aggravating the situation or creating a whole new issue. Such is the case with the National Emergencies Act of 1976, enacted in the post-Watergate era to rein in presidential power. It has instead provided President Trump with a route to expand executive authority — in defiance of Congress — by declaring a national emergency to fund a wall along the southwestern border.

On Friday, the president issued his first veto after Congress rejected that declaration.

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Now, with the immediate partisan fight over Mr. Trump’s border emergency diminishing, those in favor of overhauling the 1976 law he invoked remain determined to pursue bipartisan changes in legislation they view as an abject surrender of congressional power.

“Ultimately, this is a problem created by Congress, and it has been allowed to persist by Congress,” said Senator Mike Lee, Republican of Utah, who introduced a measure this past week to make it more difficult for presidents to circumvent Congress through an emergency declaration. “Congress is starting to wake up to the fact that over time it has delegated out too much power.”

The emergencies act was meant to restore Congress’s constitutional role as a check on an increasingly powerful executive branch, not just because of President Richard Nixon, but because of a growing imbalance between the two supposedly equal branches dating to at least the era of Franklin D. Roosevelt.

Mr. Lee’s proposal was scuttled by Mr. Trump, who rejected the Republican offer of trading a future legislative fix for support of his current declaration. Top Democrats ridiculed Mr. Lee’s measure as a transparent political move to provide cover for Republicans facing the difficult choice of siding with Congress or Mr. Trump, and they dismissed it out of hand.

In the end, Mr. Lee and 11 other Republican senators joined Democrats in voting to block Mr. Trump’s emergency declaration, sending the resolution of disapproval to the White House, where the president enthusiastically vetoed it on Friday — and slammed critics in both parties.

Both the House and the Senate are well short of the votes required to override the veto. This means that any money that Mr. Trump diverted for his wall could stand despite Congress’s refusal to allocate him the funding in the first place and then voting decisively to end his emergency.

The legality of Mr. Trump’s declaration will now be fought in the courts, where the third branch of the government will no doubt consider the congressional intent represented by two votes against the president, who exploited the emergencies law.

The thoroughly unsatisfying outcome for many on Capitol Hill could provide new impetus for Mr. Lee’s plan, which would require Congress to approve any president’s emergency declaration — or it will automatically terminate after 30 days. That would be a significant change from the current process of ending an emergency declaration only by passing a resolution of disapproval subject to veto — an approach that leaves most of the leverage in the hands of the executive branch.

“If you want to declare a national emergency, we need to put a shot clock on it,” Mr. Lee said.

Senator Mitch McConnell, Republican of Kentucky and the majority leader, said this past week that he had asked the Homeland Security and Governmental Affairs Committee to look into the issue and that lawmakers said a hearing was likely.

© Erin Schaff/The New York Times Senator Mike Lee, Republican of Utah, who voted to block Mr. Trump’s emergency declaration, said, “Congress is starting to wake up to the fact that over time it has delegated out too much power.”“If Congress has grown uneasy with this law, as many have, then we should amend it,” Mr. McConnell said. “If the 116th Congress regrets the degree of flexibility that the 94th Congress gave the executive, the 116th Congress can do something about it.”

Though Democrats initially ridiculed Mr. Lee’s proposal, a spokesman for Speaker Nancy Pelosi said she was also open to considering changes as long as they were not being pursued in the interest of political cover. Democrats will also need to be convinced that the purpose is not just to tie the hands of future presidents from their party.

“The House committees are reviewing the president’s unlawful use of the National Emergencies Act,” said the spokesman, Drew Hammill. “It was never intended — and still is not permissible — to be used by the president to settle a policy dispute in which he miserably failed to convince the Congress and the American people.”

Mr. Hammill was reflecting a widespread bipartisan sentiment that Mr. Trump and his advisers were employing the law in a way in which it was never intended to be used. But many Republicans, backed by in-house legal review, also acknowledged that the 1976 legislation gave the president a legal basis to move ahead. Some of the 12 Republicans who voted to end the national emergency did so not because they believed the president acted illegally, but because they considered it a grievous trespass on congressional prerogative on spending under a badly flawed law.

The National Emergencies Act of 1976 initially allowed the president to declare an emergency in order to act unilaterally if certain conditions were met, but the action could be blocked if the House and Senate passed a resolution to terminate it — a process known as a legislative veto.

But in 1983, the Supreme Court — in the case of Immigration and Naturalization Service v. Chadha — found such an approach unconstitutional. It said that for the congressional action to be binding, it had to be in the form of legislation presented to the president. That ruling led Congress to devise the current approach of a resolution of disapproval, restoring the presidential veto in the case of emergency declarations and giving the president the upper hand, since overriding a veto requires a hard-to-achieve two-thirds vote in both the House and Senate.

“It was a hasty decision without much deliberation,” Mr. Lee said. “It was written for a bygone era that really doesn’t exist anymore.”

Mr. Lee said he believed his idea of establishing a time limit subject to congressional approval would be constitutional. He acknowledges that there is no chance it can move forward without bipartisan buy-in, buy-in he believes is attainable as Congress realizes the extent to which it has relinquished its authority.

Sometimes, he said, it takes a galvanizing event like the wall declaration to get lawmakers to band together.

“This has been created over time under Congresses and White Houses of every conceivable partisan configuration,” Mr. Lee said. “It needs to be a bipartisan solution.”