Separation of power and the president's emergency declaration

By William Wagner

The budget deal signed by the President Friday only partially funded the President's request for boarder security. Although the deal prevented another government shutdown, it leaves many miles along the border unbuilt. To fill the gaping holes, the President declared a national emergency. The President's action raises serious separation of power questions. This week various state Attorney Generals, all Democrats, challenged the President's action in federal court.

Does the President's executive authority include the power to declare the national emergency? To answer that question, check whether a provision of the Constitution, or statute enacted by Congress, authorizes the action. Moreover, before an unelected court addresses these issues, it first must determine whether it should even decide a political question that so deeply divides the nation.

Constitutional Authority

The American Constitution charges the President with protecting the nation's boarders. Among the executive powers listed in Article II, the President serves as "Commander in Chief" of the armed forces. Additionally, the President's authority includes inherent executive power beyond the powers specifically enumerated in the Constitution. Here, the Constitution broadly provides that "[t]he executive Power shall be vested in a President of the United States of America." Thus, while the Constitution expressly limits Congress's authority to those listed powers "herein granted" in the Constitution, it bestows, for better or worse, additional inherent power in the Presidency.

Standing alone, both the Commander-in-Chief power and the inherent executive power of the presidency, arguably authorize the President's emergency declaration. Congress though, also provided statutory authority for a sitting President to declare a national emergency.

Congressional Authority

In 1972, Congress enacted the National Emergency Act. The law gives a President broad discretion to declare a national emergency. Whether Congress acted wisely when it ceded such wide-ranging authority to a President, is a different question than if they did. Congress did. The President holds, therefore, the authority provided.

Implication of Congressional Support

Because Congress, via the National Emergency Act, expressly affirms the President's authority to declare an emergency, his exercise of inherent executive power holds great legitimacy. Far greater, for example, than if both houses of Congress expressly opposed the President by repealing the statutory authorization. The President says he plans to use his constitutional and congressionally authorized executive power to complete the security barrier. To be sure, the Democratic-controlled House of Representatives holds the power to formally voice their opposition to the President's action. If the Republican-controlled Senate formally supports the President's declaration, the debate over finishing the barrier is far from finished.

Judicial Review

With the Attorney Generals' lawsuit, the debate moves to a federal court. Historically, before an unelected judiciary reaches substantive constitutional and statutory issues, it first determines whether a political question exists. If, like here, one does, federal courts often refuse to address the matter, leaving it to those elected by the people to work it out. That is exactly what should happen here.

William Wagner is Distinguished Professor Emeritus (Law)

© William Wagner