- Jun 6, 2007
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The National Emergency Act under which President Trump has declared a national emergency on America's Southern border and plans to reappropriate monies earmarked for defense to build a wall on this border is a really screwed up law. The law wasn't when it was passed in 1976 it was a prudent law giving the President the power to declare a national emergency and providing a good check for stopping a President from over reaching by only requiring both chambers of Congress to pass a concurrent resolution terminating the emergency declaration for it to be terminated. Then in 1985 the Act was changed and instead of only requiring a concurrent resolution to be passed Congress is now required a joint resolution be passed to terminate the declaration meaning that both chambers of congress have to pass the terminating resolution and it needs to be signed by the President for it to be effective. The Act was probably changed as a result of a case brought around that time challenging President Reagan's declaration of a National Emergency and imposing a trade embargo against Nicaragua; the plaintiff an American businessman hurt by the embargo won on the issue where the District Court Judge found that the Act's provision not requiring the terminating resolution to be signed by the President was unconstitutional because the judge found that the termination of a Emergency Declaration was a legislative act on par with making a law and pursuant to Article One Sec Seven required the signature of the President! The 1985 Congress acted foolishly they should have let the U.S. Supreme Court rule on the issue before amending the act. The District Court Judge showed poor reasoning in the case the NEA granted the President the power to declare a National Emergency and take power specified by Congress in other laws set aside for national emergencies; the Act's termination authority was not giving Congress the power to terminate any innate power of the Presidency it was only terminating power they gave to the President. The NEA should be changed back because the current state of the law subverts Congress being a coequal branch of government with the President and is just plain stupid. What the current version of the Act requires for a President to be checked in an over reach of power doesn't make any sense. A President is only going to declare a national emergency if he or she wants to acquire significant additional power not ordinarily available to the President and he needs this power to carry out his duties so the current Act requires after each chamber of Congress passes a terminating resolution for the President then to sign that resolution. By signing it the President would be saying that he was wrong that he made a mistake in his reasoning on a major Presidential action in declaring a national emergency, that is a ridiculous bar to be met almost no President is going to be so meek! Frankly, if I was sitting on U.S. Supreme Court and I was hearing a challenge to this declaration and resteering of money by President Donald Trump I would be inclined to find that the 1985 amendment made the whole legislative scheme in the NEA unconstitutional essentially because the way the law is written now Congress gave away some of its power over the nation's purse to the President this is contrary to the constitutional design of our government established by America's founders which gave the decision on appropriating federal monies solely to Congress!
