Decision surely destined for Supreme Court
Before the airwaves are completely chock-a-block with partisan pundits, it is useful to understand just how unclear the law is on President Trump’s declaration of a national emergency to build the border wall.
The short answer is that no one really knows and the fight will wind up in the Supreme Court.
Unlike many other countries, our Constitution is silent on the topic of presi- dential power to declare national emergencies. It is unlikely that the concept even occurred to anyone at that time. If it did, they probably thought only in terms of a military invasion in the classic sense — an army in uniform landing on our shores.
When we look to history, we get little guidance, and most of it is bad. During the Civil War, President Lincoln suspended habeas corpus — the power of the judiciary to intervene if someone is illegally held — but there was no litigation and the Civil War is about as close as you can get to an armed invasion without involving another country.
President Roosevelt’s internment of Japanese-Americans was upheld by the Supreme Court in one of the four or five most-hated decisions of the last century and which was explicitly renounced last year by Justice John Roberts. And President Truman’s attempted nationalization of a steel mill during the Korean War was explicitly ruled to be improper by the Supreme Court.
On the other hand, at various times and in various ways Congress has given the president the ability to declare emergencies and the limits of these delegations have not really been tested. As a result, presidents on both sides of the spectrum have tended to read them very broadly. For example, President Obama used a law initially designed to authorize force against al-Qaeda to do pretty much whatever he wanted in the Middle East with minimal squawking from anyone, Democrat or Republican.
So what will happen is this: Someone will race into a court historically hostile to Trump, such as Hawaii or California, to get a judge to issue an order against the declaration. Meanwhile, if the Trump administration has any sense, it will get someone to go to a favorable court, such as Texas, to get a favorable ruling. One way or another, the entire matter will eventually drop into the lap of the Supreme Court.
Two closing thoughts. First, take this as a caution that anyone who says they know the legal answer for certain one way or the other is just blowing smoke. Second, once again, the reason that we are launched into these legal murky waters is that there is a fundamental failure of Congress to meet its minimal obligations to the country.