A Constitutional Crisis

Dear Group,

If you are confused over the legal authority Trump claims for his emergency declaration, you are in good company. The media have done a poor job of explaining. It’s messy. Below I’ve copied a portion of Doug Muder’s article “A Fishy Emergency Threatens the Republic.” It offers the clearest explanation I’ve seen of the whole complicated delegation of authority issue. (Muder’s whole article is worth reading if you have the time. Just click on the title.)

Congress still has a chance to weigh in, but there’s a catch. As originally passed in 1976, the National Emergencies Act allowed what is known as a legislative veto: Congress could override the President’s declaration if both houses agreed to do so. This is, in fact, likely to happen. The Democratic House will pass a resolution against the emergency fairly easily, and the Republican Senate will probably follow suit. (In order to do so, all 47 Democrats and 4 Republicans will have to agree. Mitch McConnell can’t prevent the resolution from coming to the floor, and it can’t be filibustered.)

However, in 1983 the Supreme Court (in regard to a different law entirely) found legislative vetoes to be unconstitutional. As laid out in the Constitution, Congress passes laws and the President has an option to veto them. Congress can delegate its power to the President (as it did in the National Emergencies Act), but it can’t switch places with the President and give itself veto power over his decisions.

As a result, Congress can still undo the President’s declaration, but it requires a joint resolution, which is then subject to a presidential veto. A two-thirds majority of each house would then be necessary to override the President’s veto. This is currently considered unlikely, because not enough Republicans are willing to go against Trump.

So the most likely scenario goes like this: Congress passes a joint resolution against the emergency, the President vetoes it, and Congress fails to override the veto.

The gist is this: In 1976 Congress passed and President Ford signed the National Emergencies Act. The intent of Congress at the time was to offer the president a way to act expeditiously, but with Congressional oversight. Congress essentially said: “If you, Mr. President, use this act in a manner the Congress deems out of bounds, then we have a means of quickly withdrawing our approval. We can take back the authority under this act with a simple majority vote of both houses of Congress, a vote of that, once called for, cannot be blocked by leadership, filibustered, or even vetoed by you. 

In 1983 the Supreme Court under Warren Burger (a conservative…for the time…nominated by Richard Nixon) in Immigration and Naturalization Service v. Chadha, an unrelated case, made it much harder for Congress to rein in an autocratic President the way Congress had intended. By nixing the “legislative veto,” the Supreme Court handed the President far more power than Congress intended in 1976.

Does McMorris Rodgers even understand the separation of powers laid out in the Constitution? Republicans, are usually anxious to shout “Executive Overreach!” Does that extend to McMorris Rodgers’ “positive disruptor?” Does she understand how Trump’s declaration of a national emergency to thwart the Constitutionally mandated Congressional “power of the purse” produces a constitutional crisis over the powers of the Legislative and Executive branches of government? If Trump vetoes a majority vote to stop his usurpation of Congressional power, will she vote to override? You could ask her: 

“Conversation with Cathy” Town Hall — Wednesday, February 20

When: 9:45 a.m.- 10:45 a.m.

Where: McIntosh Grange, 319 S 1st St. Rockford, WA 99030

“Conversation with Cathy” Town Hall — Wednesday, February 20 

When: 12:15 p.m.- 1:15 p.m.

Where: Fairfield Community Center, 304 E Main St., Fairfield, WA 99012

“Conversation with Cathy” Town Hall — Thursday, February 21

When: 2:30 p.m.- 3:30 p.m. 

Where: Medical Lake City Hall, 124 S Lefevre St., Medical Lake, WA 99022

Space is limited at all three events. Town halls are first come, first serve. 

Details can be found on McMorris’ website

Again, I encourage you to read Doug Muder’s whole article

Keep to the high ground,