Supreme Court has placed limits on presidential emergency powers, but that may not stop Trump

More than a half century ago, the Supreme Court in one of its most famous decisions boldly put a check on executive power, one that has been cited repeatedly as proof the president cannot declare a national emergency to bypass Congress.

Many legal experts, however, say they are not confident the Constitution and the courts would stand in the way if President Trump were to declare a national emergency to fund a wall on the southern border. At issue is not the definition of an emergency, but the many expansions of presidential power written into law by Congress in recent decades.

When President Truman issued an order to seize control of the steel mills, no one questioned that the nation faced a true emergency. American troops had been pushed back in Korea, and a pending strike in the steel industry “would immediately jeopardize and imperil our national defense” and endanger “our soldiers, sailors and airmen engaged in combat in the field,” he declared in 1952.

But the high court stood firm and ruled the president did not have the power, acting on his own, to order the steel mills to keep running.

“The president’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself,” said Justice Hugo Black in Youngstown Sheet & Tube vs. Sawyer. No law gave him that authority, he said, nor can it be “sustained as an exercise of the president’s military power as commander in chief of the armed forces.”

Justice Robert Jackson, who also served as the U.S. prosecutor at the Nuremberg war crimes trial, warned of the danger of putting emergency powers in the hands of the executive. He cited Hitler’s use of a temporary suspension of rights to take full power in Nazi Germany. History “suggests that emergency powers are consistent with free government only when their control is lodged elsewhere than in the executive who exercises them,” Jackson wrote. “Such power … has no end. If it exists, it need submit to no legal restraint.”

The words of the “steel seizure” case are sure to play a role in the public debate and a potential legal battle if Trump declares a national emergency to fund a border wall.

“The founders of this nation entrusted the lawmaking power to the Congress alone in both good times and bad,” Black wrote, and that includes the authorization to spend tax money. Democrats have stressed that Congress has not chosen to fund a wall, despite Trump’s pleadings.

But Elizabeth Goitein, a scholar at the Brennan Center at New York University, has described how Congress has added clauses to many laws that authorize the president to wield extra powers in emergencies.

“Unknown to most Americans, a parallel legal regime allows the president to sidestep many of the constraints that normally apply. The moment the president declares a ‘national emergency’ — a decision that is entirely within his discretion — more than 100 special provisions become available to him,” she wrote last month. “While many of these tee up reasonable responses to genuine emergencies, some appear dangerously suited to a leader bent on amassing or retaining power.”

For example, the federal law that applies to the Defense Department includes a special provision on “construction authority in the event of a declaration of war or national emergency.” It says that in the event of war or the “declaration by the president of a national emergency … that requires use of the armed forces, the secretary of Defense, without regard to any other provision of law, may undertake military construction projects … not otherwise authorized by law.”

Legal experts expect the White House will cite this provision if Trump seeks to divert already appropriated money to pay for a border wall. Critics have noted the law focuses on supporting the “armed forces,” and a border wall is not a barrier against a military foe.

But Yale law professor Akhil Amar said a judge may well be reluctant to conclude that the president’s decision to build a barrier at the border does not involve the military or the armed forces. “Trump sees this as putting up barriers to repel invaders at the border,” he said. “And about one-third of country sees it that way.”

Moreover, bringing a lawsuit in court requires an injured plaintiff who has standing. And the court has ruled that neither lawmakers nor taxpayers have standing to sue over how the government spends money.

“Factually it is ludicrous to claim this is a national emergency, but who would have standing to challenge it?” said Syracuse law professor William Banks. “It could be a property owner who says his land has been diminished in value.” If so, however, such a case may take time to develop.

It is not clear that the Supreme Court will be willing to take up such a dispute or stand in the way of the president.

In 1952, all the justices were Democratic appointees, but the 6-3 majority rebuked the actions of a Democratic president.

Trump’s lawyers have been eager to move cases to the high court as soon as possible, confident the conservative-leaning justices will rule for the Republican administration.

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