The Constitution Does Not Give Trump ‘Emergency Powers’

by on January 8, 2019 · 3 comments

in Civil Rights

Originally posted on Jan. 8, 2019

Our Constitution does not give President Trump “emergency powers” and he can’t suspend it whenever he perceives there’s a national emergency. So says Constitutional expert and Dean of UC Berkeley Law School, Erwin Chemerinsky. And I believe him over Trump and any of his sycophants.

Two decades ago, I met Chemerinsky after one of his “Constitutional Law” lectures – as he was one of the professors hired to teach hundreds of us San Diego law school graduates how to take the California State Bar. Totally impressed with his sweeping grasp of the Constitution, I followed his career over the years. At some point, he became the very first dean of the brand new law school at UC Irvine. Now, he’s at Berkeley – and today he wrote an Op-Ed piece for the LA Times, “Trump’s border wall woes”.

If Trump tries to simply invoke emergency powers and build a wall between the United States and Mexico without congressional approval, it would “constitute an unconstitutional and dangerous expansion of presidential power,” says Chemerinsky. He adds that not only does the US Constitution not give Trump (or any President) emergency powers, “it has no clause that allows the president to suspend the Constitution when he perceives an emergency.”

Quite the contrary, the Constitution was deliberately written to keep government officials from claiming dictatorial powers in the name of national security or emergency management. The Constitution is clear that Congress controls the power of the purse and must approve the spending of all federal money. No exception to this is mentioned in the Constitution or has ever been recognized by the courts.

The often-heard history lesson about President Truman and the steel mills during the Korean War is cited.

Trump is not the first president to try to claim emergency powers. During the Korean War, President Harry Truman ordered the seizure of steel mills when a labor dispute threatened to close them. Truman argued that national security and the war effort depended on continued steel production. But In Youngstown Sheet & Tube Co. vs. Sawyer, in 1952, the Supreme Court ruled against Truman, concluding the president had no authority under the Constitution or federal laws to do this even in a wartime emergency.

In a separate opinion, Justice William O. Douglas explained that seizing the steel mills would require that Congress appropriate funds to pay for the taking of private property, and the president cannot take over the spending power, which belongs to Congress, in this way. Both Justice Robert Jackson and Justice Felix Frankfurter, in their separate opinions, stressed that Congress had considered giving the president this power but did not do so.

Chemerinsky says this is definitely all very relevant right now – today, tonight, as Trump goes before the nation in Prime Time to tout his Wall and Emergency Powers. We have to read the rest of the Dean’s presentation:

The president is likely claiming authority to fund building the wall under the National Emergencies Act of 1976, but that law actually was meant to limit the ability of the president to claim powers by declaring a national emergency. One provision says that if there is a national emergency, funds in the Defense Department budget that are not “obligated” can be used for construction projects to support the armed forces. It says: “Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces.”

The clear purpose of this was to ensure adequate space for military mobilization in the case of an emergency requiring a large number of troops. It is hard to imagine a court finding that there is an emergency within the meaning of the statute in this situation where nothing has changed. This is about Trump wanting to carry out a campaign promise, not an emergency that has suddenly arisen. Moreover, the statute is about construction projects to support the armed forces. Trump’s wall is not about that at all.

Any attempt by Trump to build the wall without congressional approval would be a grave threat to separation of powers. Under the Constitution, every major action of the federal government generally should involve two branches of government. Enacting a law, including adopting a budget, requires Congress passing a bill and the president signing it, or Congress overriding a veto. Going to war requires Congress declaring war and the president, as commander-in-chief, waging it. Enforcing a federal law requires that the executive branch bring a prosecution and the judiciary convict.

No Supreme Court decision in U.S. history ever has approved the ability of the president to circumvent these checks and balances by spending a large amount of money without congressional approval. That would be a dangerous precedent and one inconsistent with a Constitution founded on the idea of checks and balances.

Throughout his time in office, President Trump has chafed at the limits the Constitution imposes upon him, as have other presidents occasionally before him. That is a key reason, let’s remember, that the nation’s founders wrote the document: to set out clearly the limitations of a president’s power. Once again, more than 200 years after it was written, the Constitution is again serving Americans well in preserving checks and balances.

Remember all of this whether you watch Trump and the Pelosi-Schumer rebuttal or not.

{ 3 comments… read them below or add one }

Toby January 10, 2019 at 1:07 pm

Thanks for this outstanding explanation of how emergency powers are outlined in the Constitution. It’s in our best interest to address this Constitutional challenge now should it occur. Imagine the actions or “stable genius with bone spurs who knows more than
the generals declaring an emergency for national security the next time Kim rattles the sabers. We’re in a much better place to address this now during a manufactured emergency rather than an actual emergency. The Democrats need to take the option of citing an emergency to get his way and circumvent congress out of Trump’s toy box.
The Republicans have proved they will nothing.

In the meantime I’m happy to see Mr. Schumer and Ms. Peolsi calling out Trump’s childish, spiteful behavior. I love seeing them reference “tantrums,” “fist slammimg,” and “storming out” when he doesn’t get his way. Calling out this childish unpresidential behavior (they should add name calling as well) is long overdue. I welcome it and hope it continues.

Additionally, I’d like to see the clip of the meeting where Trump stated
he would be proud to shut down the government, and not blame the Democrats.
Just play the clip following every time Trump and his allies shift the blame to the Democrats. Nothing more is needed.

I got a good laugh out of Trump’s tweet referring to “crying Chuck” (more juvenile name calling that could be noted) when I recalled how Trump lamented “poor me” about being all alone in the White House over Christmas because the Democrats wouldn’t meet with him.


Frank Gormlie January 10, 2019 at 8:44 pm

Toby – you’re spot on. MSNBC keeps playing that clip; amazing. Now Trump denies he ever said Mexico would pay for the wall.


Don Throckmorton January 11, 2019 at 12:18 pm

One of the qualifications for invoking emergency powers is that they be used for something authorized or implied by Congress…such as the Secure Fence Act. That act was amended to allow other fence than the high, double-run fencing called for in the bill at the discretion of the director of Homeland security. The Obama Administration subsequently built only 36 miles of the designated fence, with the rest so low and shoddy that a child can easily pass through it. I do not condone by-passing Congress, but I wouldn’t bet my lunch money Trump’s declaration would be stopped by the Supreme Court. As I was writing this, they announced Trump decided not to pull the trigger. Excellent !


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