Presidential authority to invoke emergency powers without an emergency cannot be part of our laws anymore.

Sunday, November 11th, 2018
By: Jonathan MontagJ.D.

When Congress writes laws, especially in the national security/national affairs context, broad authority is often given to the President. Anyone litigating immigration law issues in the federal court is used to seeing the government presenting its litany of cases that give to the executive the least restricted authority when it comes to immigration because of its relation to issues of U.S. foreign affairs and foreign policy. Americans may marvel that the President has the authority to order attacks, even nuclear attacks, and essentially start wars without Congressional approval.

Congress is especially aware of the need to delegate to the President authority to confront emergencies. We see that in trade policy where the President can on his own impose tariffs if he finds there is a national security emergency. According to 19 U.S.C. §1862,  the President, after receiving a recommendation from the Secretary of Commerce and a bunch of procedural steps, “… shall take such other actions as the President deems necessary to adjust the imports of such article so that such imports will not threaten to impair the national security.” Of course, the President appoints the Secretary of Commerce.

In the immigration sphere, the Immigration and Nationality Act includes INA § 212(f), which states:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

While Presidents have invoked these provisions to confront what appeared to be impairments to the United States national security or circumstances detrimental to the national interest, what is unprecedented is a President alleging threats to national security and the national interest that are factually tenuous at best as a basis for invoking his authority and taking steps disproportionate to the alleged threats. Also, unprecedented, is a President creating a record in public and social media statements of motivations far removed from the tenuous allegations of detrimental and impairing circumstances that require extreme presidential actions. In other words, his words belie his professed motives.

While there may be some argument that there is something askew in the Canada-US steel trade or the China-US soybean trade, can anyone seriously suggest that our national security is at imminent risk? Similarly, does anyone really believe that 5,000 (if that many) desperate “refugees” of crime, corruption, poverty, and climate change are a threat to national security so as to motivate the President’s recent “asylum ban“? Did any set of facts really motivate the “travel ban“? Living in a border city, I can give personal assurance that we are not under siege from hordes of invaders raping and pillaging and bankrupting us. Are there “illegals” who commit crimes. Of course. Is this criminality such a unique threat to our national security as to motivate either ban? Certainly not.

One day, hopefully sooner rather than later, we will have a new President who makes factual determinations based on actual facts. We will have cabinet members committed to their agencies’ missions, the well-being of the country, and the Constitution, rather that their own plutocratic interests. We will have lawmakers committed to the national interest rather than maintaining political power at the expense of all political, social, and religious principles.

However, getting a new President, more attached to presidential norms in conduct and decision making, is no longer enough to allay our fears of repetition. When fashioning laws that give the President nearly unbridled authority when facing emergencies, Congress may earlier have considered whether a President might invoke these powers illegitimately and concluded, “Naa. A President would never conjure up emergencies out of whole cloth to advance a political agenda. A President would never abandon rational decision making when it comes to national security issues and instead make decisions based on the ‘thought processes’ of a mentally ill person.” Congress may also concluded, “If it gets to bad, 51 percent of Congress will certainly step it stop him.”

Now that we have seen this President in action, we know that none of those considerations is actually true. A President will invoke emergency powers when there is no emergency and Congress will let it happen. Lawmakers will have to factor that in from now on and  give a President vast unchecked powers to apply with little or no restrictions. It is no longer a hypothetical concern. It happened and can happen again.

For now, only the courts can stop him and look what he is doing to them and how they drop the ball. Posted November 11, 2018.


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