US President Donald Trump has tested his presidential emergency authority. Photo / Peter W. Stevenson, The Washington Post
The United States Supreme Court delivered a stinging rebuke to President Donald Trump’s favourite instrument of economic and foreign policy power, by rejecting his claim that his presidential emergency authority allows him to unilaterally impose sweeping tariffs.
Trump’s assertion that the 1977 International Emergency Economic Powers Act allowed him to put tariffs in place without any action by Congress was unprecedented, as are some of his other declarations of emergencies where there is no evidence they exist.
Among the avalanche of executive orders he signed on his first day in office was one “declaring a national energy emergency” at a time of record US oil and gas production and the lowest petrol prices in years.
Another emergency declaration deemed there to be an “invasion” and “widespread chaos” taking place on the southern border, even as Border Patrol statistics were showing the number of illegal crossings had dropped sharply and were lower than they had been at the end of Trump’s first term.
While Trump has far outpaced his modern predecessors when it comes to emergency declarations, presidents of both parties have used them in dubious ways to eliminate obstacles to their political agendas.
President Joe Biden claimed the Covid-19 pandemic allowed him to cancel US$400 billion ($670b) in student debt, citing authority under the 2003 Heroes Act.
That law allowed the education secretary to rewrite rules that apply to student loans during times of war or national emergencies but was meant to help military personnel serving in Iraq and Afghanistan. The Supreme Court blocked Biden’s directive.
Congress shares a significant portion of the blame for presidential over-reach, given that it has granted the chief executive no fewer than 150 statutory powers that become available upon the declaration of a national emergency, according to a tally by New York University Law School’s Brennan Centre for Justice.
Those emergency powers stretch across and beyond actions involving health and the environment, troop deployments, seizure of private property, even the dumping of infectious medical waste in ocean waters.
Although it has always been recognised that the nation’s chief executives need flexibility to act in times of crisis, members of both parties have long been concerned that presidents can abuse their emergency powers.
In 1976, Congress passed the National Emergencies Act, setting up more formalised procedures governing how presidents exercise them, including setting a renewable one-year expiration date for emergency actions.
Presidents since then have made 91 emergency declarations under the act, more than half of which are still in effect. One of them - imposing economic sanctions on Iran - dates to the Carter administration.
The law also specified that Congress could nullify an emergency declaration by passing a resolution in each chamber on a simple majority vote that would go into effect without the president’s signature.
But the Supreme Court ruled that such resolutions were unconstitutional with its 1983 decision in INS vs Chadha.
Congress became lax even in exercising its enforcement and oversight authority that remained, said Elizabeth Goitein, senior director of the Brennan Centre’s liberty and national security programme.
However, the legislative branch is not without other tools for reining in emergency actions, including cutting off funding or exercising more diligent oversight of them. Neither of which the Republican Congress has shown much inclination to do since Trump took office.
“We have had decades of legislative fecklessness,” said Georgetown University law professor Stephen I. Vladeck.
“Things have run totally off the rails in the last 13 months.”
With Congress supine before Trump, “what you see is the increased proliferation of executive-judicial confrontation”, he added.
Still, there have been stirrings of alarm in Congress at some of the emergency actions Trump has taken. Both the House and the Senate have voted to overturn his tariffs on Canada, although not by veto-proof majorities.
During Trump’s first term, conservative Senator Mike Lee (Republican-Utah) introduced what he called the Article One Act, after the section of the Constitution that sets out the role of the legislative branch.
His bill would automatically end presidential emergency declarations unless Congress voted to extend the emergency.
“If Congress is troubled by recent emergency declarations made pursuant to the National Emergencies Act, they only have themselves to blame,” Lee said in a statement when he introduced the bill.
“If we don’t want our president acting like a king we need to start taking back the legislative powers that allow him to do so.”
The bill, which he has subsequently reintroduced, has won bipartisan support.
Representative Chip Roy (R-Texas), who sponsored a companion measure in the House, said at the weekend that the Supreme Court decision on tariffs will not be enough to solve the problems that have arisen over presidential assertions of executive power.
“The fact is, Congress is the one who made the mess out of all of this,” Roy said in an interview with Newsmax. “Congress needs to clean it up.”
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