A number of states are suing the Trump administration over its declaration of a national emergency at the border. The administration’s lawyers and apologists argue that Congress has already delegated the power to the executive to take broadly defined emergency actions, and raid funds appropriated for other purposes for wall construction at the border. Whatever you think of this argument, it points to the larger and growing hole in our Constitution. Through the legal fiction of an emergency, the old rules that governed America, and ensured some democratic check on executive power, are sidelined.
It’s not just Trump’s wall, of course. Emergency powers are now routinely used to join the U.S. into international conflict, often leading to armed conflict. Primarily this is done by the president declaring an emergency and initiating economic sanctions.
Because U.S. institutions are the broker for much worldwide trade, changing the rules by which those institutions operate — namely forbidding them from doing business with certain foreign nations or businesses within certain nations — the U.S. has an expansive ability to isolate countries economically. Sanctions can be powerful enough that many regimes who are targeted by them treat them as an act of war and an attempt to bring down their government. President Obama initiated emergency action against Libya and Yemen, and these were swiftly followed by U.S. military interventions. He also initiated them against Russia for its action in Ukraine.
And did you know he also did the same against Burundi? Did you know we had a serious conflict with Burundi? Probably not, precisely because executive actions often seem like background noise, rather than major operations of the U.S. government.
In the Constitution, power to “regulate commerce with foreign nations” is specifically delegated to Congress. Just as the power to declare war is. But, like the power to declare war, over time and in fits and starts Congress has surrendered its role to the executive branch. You’ll see on these new executive orders references to the International Emergency Economic Powers Act, and the National Emergencies Act. During a short period of congressional retrenchment in the 1970s, some sanctions powers were returned to Congress. But the Patriot Act shoved them back to the executive.
Even into the 1990s, economic sanctions against Cuba were initiated or modified by Congress, then put into effect by the executive. And, when there is a compelling political reason, Congress can still force an unwilling president to impose economic sanctions. That happened under Trump. Congress, suspicious that Trump was giving in too easily to Vladimir Putin’s interests, passed a sanctions bill with a veto-proof majority. And the president was left to complain that he can strike “better deals” than Congress.
I happen to think Congress should fund more-extensive border security, including fencing. But conservatives have to defend the constitutional order that gives government acts the savor of legitimacy. That means Congress must reassert itself as the preeminent branch of government, in appropriations and foreign policy.
Ending the confusion about the roles of Congress and the President is good hygiene for a few reasons. First, it will stop brinksmanship of the presidents, who dare Congress to challenge them when they overstep their authority. Second, it will stop the brinksmanship of our federal courts, who often respond to presidential power grabs with judicial overreach of their own type.
But most importantly, keeping within the bounds of Constitutional order allows America’s democracy to function properly. It isn’t just about punctilious conformity with an order described on parchment. Right now voters punish or reward candidates and parties according to rather vague ideas about their role in national life. When the executive and legislature have confused roles, and the political parties have such an outsized influence on our political discussion, voters don’t know how to hold their government accountable anymore. Want to solve populist brinksmanship? Bring back democracy, through constitutionalism.