One Demo­crat could trump a wall emer­gency

Congress can scut­tle emer­gency dec­la­ra­tions, but never has in 44 years

USA TODAY International Edition - - NEWS - Gre­gory Ko­rte

Af­ter Hur­ri­cane Ka­t­rina dev­as­tated the Gulf Coast in 2005, Pres­i­dent Ge­orge W. Bush de­clared a na­tional emer­gency to do some­thing Repub­li­cans had long wanted to do any­way: He sus­pended pre­vail­ing wage laws on fed­eral con­tracts to re­build the re­gion.

La­bor unions protested. Democrats signed on to a bill to re­write the law. Even dozens of mod­er­ate Repub­li­cans asked Bush to re­con­sider.

But then a sin­gle con­gress­man used a par­lia­men­tary ma­neu­ver – never at­tempted be­fore or since – to chal­lenge the un­der­pin­nings of the na­tional emer­gency it­self. Bush backed down with­out even a vote.

The largely for­got­ten story of Bush’s ca­pit­u­la­tion ex­plains why Repub­li­cans have ad­vised Pres­i­dent Don­ald Trump against by­pass­ing Congress and in­vok­ing a na­tional emer­gency to build a wall along the Mex­i­can bor­der.

In ad­di­tion to rais­ing le­gal ques­tions – such a move would in­evitably be chal­lenged in court – a dec­la­ra­tion would in­vite Congress to ex­er­cise its long-dor­mant power to re­voke na­tional emer­gen­cies.

And all it would take is one mem­ber of Congress to force the is­sue.

In 2005, that mem­ber was Rep. Ge­orge Miller, a Cal­i­for­nia law­maker who was the top Demo­crat on the House Ed­u­ca­tion and La­bor Com­mit­tee.

Call­ing Bush’s de­ci­sion “cal­lous and mis­guided,” Miller’s first move was to try to amend the Davis-Ba­con Act of 1931. That law sets the pre­vail­ing wage for fed­eral con­tracts, but al­lows the pres­i­dent to grant waivers in times of na­tional emer­gency.

But Democrats were in the mi­nor­ity, and while some Repub­li­cans were grum­bling about Bush’s move, they were un­will­ing to sign on to Miller’s leg­is­la­tion.

So Miller changed tack. He dug up the Na­tional Emer­gen­cies Act of 1975,one in a se­ries of post-Water­gate re­forms. It al­lowed Congress to ter­mi­nate a pres­i­den­tial emer­gency by sim­ple ma­jor­ity vote.

Re­pub­li­can lead­er­ship couldn’t block the vote: Un­der the law, they had 15 busi­ness days to bring it out of com­mit­tee and to the floor.

Miller in­tro­duced his res­o­lu­tion on Oct. 20, and a vote was sched­uled for Nov. 8. On Oct 26, the Bush ad­min­is­tra­tion an­nounced it would ter­mi­nate the emer­gency effec­tive Nov. 7.

Bush La­bor Sec­re­tary Elaine Chao said the ad­min­is­tra­tion had re-ex­am­ined the is­sue and dis­cov­ered that it wouldn’t save as much money as ini­tially fore­cast. (Chao is now Trump’s trans­porta­tion sec­re­tary, and her hus­band is Re­pub­li­can Se­nate Ma­jor­ity Leader Mitch McCon­nell.)

Miller de­clared vic­tory.

“Let me be clear,” he told The New York Times. “The pres­i­dent is back­ing down to­day only be­cause he had no other choice.”

Mark Zuck­er­man, who was the Demo­cratic staff di­rec­tor of the House Ed­u­ca­tion and La­bor at the time, says all it took was the threat of a vote.

“It can be re­veal­ing when you make peo­ple vote on some­thing,” he says.

“We thought it was an un­ac­cept­able and in­ap­pro­pri­ate use of emer­gency pow­ers, but we also wanted to check to see if there was re­ally Re­pub­li­can sup­port for some­thing like this. I think it’s part of the ge­nius of the pro­ce­dure is that it tests sen­ti­ment on Capi­tol Hill for your uni­lat­eral idea.”

The orig­i­nal in­tent of the 1975 law was to al­low Congress a block a pres­i­den­tial emer­gency by sim­ple ma­jor­ity vote. But in 1983, the U.S. Supreme Court struck down the leg­isla­tive veto. So now, any joint res­o­lu­tion by Congress to ter­mi­nate an emer­gency can be ve­toed by the pres­i­dent.

And McCon­nell said Trump could do ex­actly that.

“The pres­i­dent could win any­way by ve­to­ing the bill and then try­ing to get enough votes to sus­tain it, so may ul­ti­mately be able to pre­vail on the na­tional emer­gency al­ter­na­tive,” McCon­nell told Fox News on Tues­day.

Still, some GOP sen­a­tors are al­ready ex­press­ing dis­com­fort over such a vote, and have asked Trump not to put them in that po­si­tion.

“It might be a – you know – a tough vote to win here in the Se­nate,” said Sen. John Thune, R-S.D.

One con­cern is the prece­dent such a dec­la­ra­tion would set.

“I think most Repub­li­cans will tell you that we re­ally would like to find a way to avoid that type of a dis­cus­sion if at all pos­si­ble be­cause this goes be­yond just this pres­i­dent,” Sen. Mike Rounds, RS.D., told CNN. “This goes on to fu­ture pres­i­dents and what they might de­cide to de­clare an emer­gency for.”

That was ex­actly what Congress ex­pected when it voted over­whelm­ingly to pass the Na­tional Emer­gen­cies Act.

The law called for ev­ery emer­gency to be re­viewed – and pos­si­bly voted on – ev­ery six months. But in 44 years, pres­i­dents have de­clared at least 60 na­tional emer­gen­cies with­out Congress tak­ing a sin­gle vote. Thirty-one of those emer­gen­cies re­main in place to­day.

The use of emer­gency pow­ers be­came so rou­tine that the Obama ad­min­is­tra­tion said in 2015 that they were mere for­mal­i­ties – de­spite their boil­er­plate lan­guage that they’re in re­sponse to an “un­usual and ex­tra­or­di­nary threat to the na­tional se­cu­rity.” And pres­i­dents seem to have ig­nored re­quire­ments that they up­date Congress on the costs of those emer­gen­cies.

Liza Goitein, di­rec­tor of the na­tional se­cu­rity pro­gram at the Bren­nan Cen­ter for Jus­tice, has ad­vo­cated re­forms to pres­i­den­tial emer­gency pow­ers.

“I think Congress has wo­ken up to the idea that the process for declar­ing emer­gen­cies is too per­mis­sive,” she says.

“This isn’t go­ing to look good if the Re­pub­li­can Se­nate is vot­ing to cur­tail the pres­i­dent’s power. It’s go­ing to split Repub­li­cans and force Repub­li­cans to take a vote they don’t want to take – and it may not go Trump’s way.”

“I think most Repub­li­cans will tell you that we re­ally would like to find a way to avoid that type of a dis­cus­sion if at all pos­si­ble be­cause this goes be­yond just this pres­i­dent.”

Sen. Mike Rounds, R-S.D., on CNN

Pres­i­dent Ge­orge W. Bush wanted to sus­pend pre­vail­ing wage laws on fed­eral con­tracts in 2005, but backed down af­ter a par­lia­men­tary ma­neu­ver by Rep. Ge­orge Miller, D-Calif. GETTY IM­AGES

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