Trump’s National Emergency: A Test for the Courts

By: Rexhinaldo Nazarko


27 BC, Rome. Octavian Augustus is delegated the power of the Principes, the highest and most authoritative office in the Roman state. His coronation definitively marked the end of the Roman republic, setting a tradition of autocracy which carried on until the collapse of the ancient superpower. But while Augustus dealt the final blow to the heart of the republic, its tenants and pillars had been slowly decaying for decades predating the event. Although due to a multitude of factors and contributors, historians and political thinkers point to three prominent events which re-shaped Roman political attitudes and put the republic on the path of ruin. Gaius Marius, Sulla, and Julius Caesar all have one thing in common; unchecked authority. The former counsels lived during tumultuous times, and cleverly made use of people’s fear of barbarians in combination with loopholes of the legal code of the republic, successfully amassing dictatorial powers. What history teaches us centuries later, is that through declarations of imaginary emergencies, and manipulation of populist ideas, the three men usurped the institutions of the state, slowly demolished the republican political culture, and set the precedent for future leaders to undertake similar means of achieving personal political goals. The Roman Senate willingly allowed such figures to usurp the authorities delegated to the legislative body, thus breaking from previous roman political tradition. Individual leaders felt unrestrained by law and legal customs, and without proper political institutions to put a halt to ambition, the system lost all credibility in the eyes of the people (Levick 59).


In a more recent update of events, the United States find themselves in a similar crossroad of their own. On February 15th, 2019 President Donald Trump publicly announced he would be issuing a national emergency regarding the state of the southern border. The office of the executive justified such undertaking through the authority enacted to it by the National Emergencies Act of 1976, a law enacted by Congress with the purpose of, in fact, limiting such emergencies, and paving the groundwork for more procedural and orderly steps to them (Levin). That being said, the wording of the act does provide the president with loopholes and buffers to work through, which can be interpreted as reasonable groundwork for him to exercise the authority of declaring an emergency. In regard to the national emergency declaration issued by President Trump specifically, the situation holds more complexity due to the controversy behind it. The issue has sparked a constitutional debate that is very likely to end up in the Supreme Court, where the final branch of government will be forced to issue a verdict supporting or killing the ambitions of the commander in chief. While under US Code authority, even though arguably so, the president may be within his legal framework to operate on such grounds, the mere fact that he intends on overstepping congressional authority to allocate funds is unconstitutional. Article I establishes the authority of Congress in regards to budgets, and conclusively determines that any other branch cannot operate in its stead with the power of the purse. (US Constitution. Art. I, Sec 8).  The constitutional clash will most definitely reach the steps of the highest court in the land, for which it will pose a true challenge of legal integrity, and proper interpretational authority. As history teaches the people, the first steps which lead to a decay of democracy were laid out in similar fashion in past societies. The United States Supreme Court holds a constitutional duty to interpret the law, but it holds an even higher responsibility, charged with protecting American democracy as the last line of defense against any form of corruption and tyranny. It is within the authority of the court to step in and regulate the power of the executive in order to re-establish a balanced system of checks and balances, and to restore proper authority to each branch as outlined in the founding document of the country. The virtue and rectitude of the court in the eyes of the American people has been tested and continues to be tested through such scenarios, and it is imperative that the highest judicial body intervenes in cases of constitutional mismanagement. The court should carefully examine the national emergency, and rebuke it as a mere dangerous fabrication without proper constitutional grounds.


The Founding Fathers, aware of the dangers of tyranny, established it so that Congress could be the principal branch of government, charged with drastic powers of war-making and finance. President Trump issued his declaration of a national emergency as a simple means of exercising budgetary authority without Congressional approval in order to gain political favor with his base, by allocating previously rejected funds for a wall. Although the president finds premise on the basis of the National Emergencies Act, its authority in this case stands in stark contrast with previous rulings and constitutional wording. Through preceding landmark cases, Congress has been strictly prohibited to delegate legislative authorities to other branches of government. There are three specific cases worth mentioning to further elaborate on the idea. In the case of J. W. Hampton Jr. & Co. v. United States the Supreme court determined that Congress could technically delegate legislative authority, but under specifically outlined purposes, terms, and comprehensive conditions. Such interpretation gave leeway to the erection of administrative agencies under the executive branch, but all such agencies possess specific duties, and are overseen by congressional authority and funding simultaneously. ( J. W. Hampton Jr. & Co. v. United States). The ruling does not fall in line with the steps undertaken by President Trump in issuing a national emergency for a variety of reasons; Congress rejected the request of the president with regard to $5 Billion in funding for a border wall. In doing so, it exercised its constitutional authority of financing projects it deems viable and vital to the national interest. Congress simultaneously, has not laid out the specific, intelligible groundwork for an executive agency to execute the desired emergency undertaking legally through congressional approval. To further expand, a multitude of other cases restrict the maneuverability of the legislative branch with regard to delegation of powers. In the ruling of Field v. Clark in 1892, the Supreme court established that Congress “…. cannot delegate legislative power to the president is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the constitution” (Field v. Clark ). The decision endorsed the idea that the United States legislature could not bestow the executive or any other branch its powers, restricted in only being allowed to grant discretionary authority which designates contrasting branches as agents for congressional purposes. A variety of cases reinforce the principle of the nondelegation doctrine, with instances where the court has nullified laws on the basis of such principle. The ruling in  Panama Refining v. Ryan also voided a presidential attempt at gobbling up power by striking down a proposed provision intended to allow the president interference in interstate commerce. The court highlighted that no specific grounds were instructed by Congress for such a measure, and it was therefore, unconstitutional. In downright divergence from such precedents, the national emergency declared by President Donald Trump insults and bypasses the supreme law of the land, operating on minuscule loopholes provided by the contradicting National Emergencies Act. It lacks a cohesive strategy and authorization from a responsible branch as bound by constitutional terms. If overlooked, the undertaking could prove to be precedent for unchecked executive expansion, and could severely damage the reputation of the legislative and judicial institutions.


“Extraordinary conditions, such as an economic crisis, may call for extraordinary remedies, but they cannot create or enlarge constitutional power” (A. L. A. Schechter Poultry Corp. v. United States). The legality of president Trump’s emergency may hold some technical grounds to it. The political maneuvering that was executed beforehand in order to facilitate the allocation of money for the wall was quite ingenious. Per former Senator Carl Levin, there exists a pool of money in the defense budget designated for the construction of military edifices, yet is occasionally re-allocated by Congress for other infrastructural purposes (Levin). The military defines such edifices as bases, camps, posts or other activity that includes armed forces personnel. The deployment of troops along the southern border fulfills the legal requirement as set by the military and Congress to classify the wall as official military construction, but the issue stands elsewhere. Are the armed forces really necessary in maintaining order at the border? According to high ranking military officials such as General Terrence J. O’Shaughnessy, no military threat exists at the southern frontier. Realistically speaking, there is an array of information that points to the fact that there exists no emergency. Immigration rates have been the lowest since 1971, the majority of influx is at the points of entry, and there exists no unforeseen circumstance nor urgent situation. By all applicable definitions, an emergency is absent. The most logical conclusion to be drawn, is that the military was politically misused for purposes other than national security. This constitutes abuse of executive authority, misallocation of military funds crucial to national security, and a weakening of military response or infrastructure. When scrutinized against other previously attempted cases of national emergency cases, this one bears striking similarities. It seeks to overstep Congressional authority, strengthen executive involvement in Congressional policymaking, and therefore is likely to set a perilous precedent with regard to future abuse of such power. In Youngstown Sheet & Tube Co. v. Sawyer , the concurring opinion of Justice Robert Jackson against the request of President Truman to seize a privately owned mill for war purposes, states that one such unnecessary emergency would simply pave the way for a sequence of other emergency abuses purely political in nature. Due to that fact, Justice Jackson cautioned against executive overreach. The court also determined that although the executive was previously bestowed with authority to seize such property for the purpose of settling labor disputes, it by no means translated to Congress forfeiting their exclusive constitutional power in constructing appropriate legislation (Youngstown Sheet & Tube Co. v. Sawyer). While the Youngstown case did deal with presidential overreach with regard to property, the decision translates into an applicable lesson for the present. Albeit the NEA granting uncertain legal ground for the actions of the president, the court opinion in the Youngstown case reaffirms the point that Congress does not surrender its own constitutional jurisdiction simply through the passage of statutes, implying the superiority of constitutional text over statutory text. In previous rulings the court has not hesitated to intervene, in many instances with the intention of impeding presidential ambitions of overreach. Preceding justices recognized the risks of allowing unchecked emergency behaviors, and fully asserted that such actions would create and manifest vulnerabilities in the system which would certainly bring about an uncertain and complex future with regard to eroding checks and balances.


As a final argument, let us assume that President Trump has a proper legal argument. The preceding supreme court rulings  and legal precedents established in previous landmark cases overshadow the authority of the NEA. Were it to decide against the Trump administration, the Supreme Court would be well within its constitutional boundaries to do so. To reiterate, the Supreme Court holds a constitutional responsibility to preserve the republican system of government entrusted to us by our founding fathers, it is a last line of defense. It would be unwise for it to sideline an issue of such vital importance to the nation and to the system. On the matter of constitutionality and judicial overreach, the court has established sufficient precedent from which to derive a well-rounded deliberation. The constitution itself is very explicit in describing the roles of Congress and the executive, therefore bestowing the court with the proper authority to deliver a judgement on the matter, an authority which, as described by previous cases, the court has exercised to the fullest. Exercising judicial restraint on such a delicate political matter could prove damaging not only to the future of the system, but to the reputation of the court itself. Jasmine Farrier in her work The Contemporary Presidency: Judicial Restraint and the New War Powers, outlines a solid argument which puts the ambitions of the presidency over the years in direct conflict with democratic interests, and judicial restraint all but aided the office of the executive solidify its grasp over war powers and consequently allowed for the abating of Congressional authority. Prime examples are presented in the cases of Crockett v. Reagan and Sanchez-Espinoza v. Regan. Both underlined cases brought lawsuits against President Reagan for failure to comply with Congressional oversight and statutes. Both such cases were dismissed by federal judges on the basis of political questions (Farrier 397). Since then, it has almost become tradition for the president to bypass Congress in affairs of war, and although there exist statutory premises that provide loophole arguments for war powers, the essence of the argument remains the same. Congress was de facto robbed of its war making authority, with the latter being informally bestowed on the executive, effectively labeling the chamber of the people as a simple rubber stamping institution. The decision at the end of the day will come down judicial intuition, and careful examination of the situation at hand. Both sides possess an argument on the basis of technicality, but law and judgement has to venture beyond the constraints of statutory technicalities, and into the realms of truth, reason and fact. It is in the hands of nine judges to peruse the declaration of national emergency (Hutcheson 279). It is their patriotic duty to take into consideration official research on the matter, political intentions, and publicly issued presidential statements which themselves assert the superfluous nature of the emergency. The court has not shied away from radical decisions when such would benefit the public, and it is their most recent test to show the true mechanisms of the American republic at work defending its pillars. Partisanship and politics, although a natural component of an individual, must not obscure judgement, and should take a backseat to national interests and the common good.


476 AD, the Western Roman Empire collapses. For over four centuries, it had been ruled by arrogant, individualistic despots with ambitions of personal fame and glory. The empire enjoyed a century of relative peace following the fall of the republic, but without proper institutions and checking mechanisms, the balance of power was erased. Principes acted on their own authority, leading to increased corruption, slow erosion of trust in the rule of law, terminating in civil and political conflicts which over the years brought the once dominant state of the globe to its knees. The United States has the fortune of learning from the mistakes of the ancients, and  it also possess the privilege of having a robust system of checks and balances. It is in the interest of the Supreme Court to perform according to appropriate standards of checks and balances in order to protect the interest of the people and the integrity of the system. The National emergency issued by president Trump will test the soundness of the judicial, and will expose whether the great experiment of this nation has taught its sons and daughters the true value of democracy, justice and rule of law. It is imperative for the court to assert its authority on matters which threaten to destabilize the tranquility of the people and the course of democracy, and in this instance, due to proper precedent, they are within the full boundaries of the law to do so.


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