The Supreme Court’s 1983 solution to one constitutional anomaly has, today, given us a worse constitutional anomaly.
At today’s big Trump tariffs argument in the Supreme Court, one recurring point — brought up by Justices Barrett, Gorsuch, and Kagan, in particular — was that, when originally enacted in 1977, the International Emergency Economic Powers Act (IEEPA) contained a legislative veto provision.
Back in March, I discussed that issue here.
The tariff power (assuming it falls under Article I powers to tax and regulate foreign commerce) belongs to Congress. But the justices’ point was that, practically speaking, there is no chance that Congress could claw it back after delegating it to the president, even if Congress was offended by the president’s abuse of the power. That’s because a president would surely veto any proposed legislation seeking to rescind the delegation.
It wasn’t meant to be that way. As enacted, the IEEPA included a then-common legislative veto. For example, if a president declared a pretextual emergency in order to impose tariffs (authority the IEEPA does not expressly, specifically grant), the original IEEPA allowed Congress to nullify the emergency (and the consequent tariffs) by enacting a concurrent resolution, which did not require a president’s assent.
In 1983, the Supreme Court invalidated a legislative veto in INS v. Chadha. To my mind, the case was distinguishable from the IEEPA. First, Chadha involved quotidian immigration enforcement, not national security emergencies involving foreign powers. Second, the legislative veto at issue in Chadha was a one-house measure — i.e., unlike the IEEPA provision, it did not require both chambers of Congress to pass a concurrent resolution; it was therefore a markedly more drastic departure from the Constitution’s procedure for enacting law.
It became common wisdom after the Chadha decision that all legislative vetoes are unconstitutional. I am not sure that is correct. Nevertheless, Congress reacted to Chadha by amending the IEEPA to require a joint resolution (passed by both congressional chambers and signed by the president) rather than a concurrent resolution.
I am sympathetic to the argument that all legislative vetoes are suspect because they depart from the Constitution’s procedure for enacting legislation, which includes either presidential assent or override of a presidential veto by two-thirds’ supermajorities in both houses of Congress.
Nevertheless, it seems to me that what we have now is much worse: The president (the Article II branch) usurps the core powers of Congress (the Article I branch) by the facile declaration of an emergency — and then argues, if there are challenges, that the judiciary is institutionally incompetent to second-guess the president’s judgment, in the realms of foreign affairs and national security, that an emergency exists.
At the very least, the IEEPA was meant to give the president broad powers on the presumption that, if the president unilaterally abused those powers, Congress could unilaterally nullify that abuse. That is, without the legislative veto, Congress almost certainly would not have delegated these broad powers to the president in the first place.
I’m willing to stipulate (though I’m not sure it’s right) that all forms of the legislative veto are unconstitutional; but if that’s the case, then legislation, like the original IEEPA, enacted on the assumption that the legislative veto was viable, should also be voided in its entirety.
Obviously, that is not a winning argument against the IEEPA because Congress did amend it — leaving it on the books while stripping out the legislative veto. It would have been infinitely better to repeal the IEEPA. With modern technology and transportation enabling Congress to convene within hours if there is a true emergency, then the president should be able to persuade Congress to enact legislation to deal with that emergency.
In any event, I thought it was interesting to find the Court today rightly worried about the impracticability of unilateral congressional action to reclaiming its powers when, 42 years ago in Chada, it worried about the impropriety of unilateral congressional action to reclaim its powers — and thus gave us the impropriety of presidential lawmaking.