Lawmakers Urged to Rein in Executive Emergency Powers

WASHINGTON (CN) – Legal experts on Thursday urged Congress to use President Donald Trump’s declaration of a national emergency at the southern border as an opportunity to claw back powers the legislative branch has given to the president over the years.

“In short, it’s past time for Congress to reassert itself in its constitutional role as a co-equal branch of government,” Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, said at a hearing before the House Subcommittee on the Constitution, Civil Rights and Civil Justice.

In this Jan. 9, 2019 file photo, a woman walks on the beach next to the border wall topped with razor wire in Tijuana, Mexico. (AP Photo/Gregory Bull, File)

The Democrat-controlled House passed a resolution Tuesday terminating Trump’s national emergency order, which the president declared earlier this month to move money from military construction accounts towards the construction of his long-promised border wall.

The witnesses at Thursday’s hearing disagreed slightly on whether Trump’s declaration is legal, but much of the hearing focused instead on what Congress can do if it wants to stop other presidents from making similar pronouncements.

Goitein told lawmakers the resolution vote was a good first step, but they should also make changes to the National Emergencies Act, the law under which Trump made the declaration.

She advocated for several changes to the law, from more clearly defining what constitutes an emergency to adding a provision that causes a declared emergency to terminate automatically within a certain number of days unless Congress votes to extend it.

Representative Mike Johnson, R-La., said after the hearing that while Republicans believe Trump’s current declaration is lawful based on the statutes as they exist now, there could be support within his party to change the laws for the future.

Johnson said he expects “constructive dialogue” on the issue going forward from both Republicans and Democrats concerned about powers Congress has given to the executive branch.

“At the end of the day, as was discussed in the hearing, this is ultimately about Article One and Article One powers,” Johnson told Courthouse News, referring to the constitutional provision governing legislative branch authority. “And for generations now we’ve allowed the executive to usurp some of that authority and that’s the broader issue we have to be concerned about, not so much the current issue on the table, which is the Trump declaration.”  

Trump’s declaration has already spurred a wave of federal lawsuits, but Jonathan Turley, a law professor at George Washington University, cautioned Congress not to count on the courts blocking the action. He said based on current law, the president has a nearly “unfettered grant of authority” to declare an emergency.

“I can put it no more bluntly than this: this is a national emergency because the president says it is, because you gave him that authority,” Turley said. “That may seem superficial and simplistic, but the NEA is superficial and simplistic.”

Goitein disagreed, saying “emergency” is a relatively common word and courts should therefore be able to determine fairly easily whether the current state of the southern border qualifies as an emergency.

Stuart Gerson, an attorney at the firm Epstein Becker Green who is currently leading a lawsuit against the declaration, also disagreed, saying even if there is room to improve the National Emergencies Act, the president’s action was out of bounds.

“We believe that it’s constitutionally impermissible for the president to take action in what really is a non-emergency when the Congress has already spoken and told him not to do the very thing that he’s doing,” Gerson said.

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