Blame Congress for the wall

The President’s order does not direct that a congressional policy be executed in a manner prescribed by Congress — it directs that a presidential policy be executed in a manner prescribed by the President.”

That line is from a famous Supreme Court decision known as Youngstown Steel. It was part of an opinion against President Harry Truman, and handed down by a majority of justices who were all appointed by either FDR or Truman himself.

Truman argued the Korean War was an emergency and asserted that the Constitution gave him authority to seize private property — in this case, steel mills — in order to meet national needs. The court’s retort?

Not so fast.

The gist of that case echos today with President Trump’s declaration of a national emergency in pursuit of a wall along our border with Mexico.  Yet, the legal analysis will be a bit different this time around. You can thank — or blame — Congress.

In this Friday, Feb. 15, 2019, file photo, President Donald Trump declares a national emergency in order to build a wall along the southern border during an event in the Rose Garden at the White House in Washington. (AP Photo Evan Vucci, File)

In 1976, the Senate and House overwhelmingly passed the “National Emergencies Act.” It gave the President — whoever was in office at any given moment — the ability to declare an emergency. This power wasn’t limited by lawmakers, leaving it effectively to the discretion of the chief executive.  Presidents — from Carter to Trump — have declared more than 50 “national emergencies” since the law was passed.

Do some quick math; that is more than one emergency every year.

Once a President finds an emergency exists, it unlocks legal powers for him (or her) to act unilaterally. That is how President Trump is proceeding with the wall.

There have been plenty of accusations raised against the President’s decision, claiming it is not a “real” emergency. Maine’s new Attorney General Aaron Frey joined with other states in filing suit against the federal government arguing just that point.

And you know what? The argument makes logical sense. But it probably won’t stand up in the courts.

The reality is our border, as well as our entire immigration system, has been a disaster for decades. President Obama, despite having control of Congress for the first years of his tenure, never addressed it. President Bush couldn’t fix it whether Democrats or Republicans were across the table. And President Trump did not marshall the GOP-led legislature in search of a solution after his election.

So it is hard to see what is “new” about this emergency requiring the use of extraordinary powers.

But the executive branch will always try to push the boundaries of its power. It was the same impetus behind President Obama’s “I’ve got a pen and I’ve got a phone” quip when he couldn’t get his way with Congress.

Our Constitutional system, as designed, provides checks-and-balances; we abandon them at our peril. And the real response to the President is not found in the courts, but rather in the legislature. They are called lawmakers for a reason.

Congress passed a dumb law giving any president nearly unfettered authority to declare emergencies and tied their own hands by requiring a veto-proof majority to overturn his decision. Courts will not ride to the rescue to adjudicate whether President Trump’s declaration is a “real” emergency or a good idea.

So Nancy Pelosi’s cautionary tale to Republicans — that this same power could be used against them if a Democrat takes the White House — is well-founded. And the solution is for Congress to take back its own power and reassert itself as a co-equal branch of government.

Because relying on lawyers-in-robes to decide all the issues of national importance is a bad place to be. Even if they managed to get it right with President Truman.


Michael Cianchette

About Michael Cianchette

Michael Cianchette was the chief counsel to Gov. Paul LePage from 2012-2013 and deputy counsel from 2011-2012. A Navy reservist, he was deployed to Afghanistan from 2013-2014 as a trainer and adviser to the Afghan National Police. He is an alumnus of the Leadership Maine program and holds a BA in economics and political science from Boston College along with a JD and an MBA from Suffolk University. He works as in-house counsel and financial manager for a number of affiliated companies in southern Maine.