Entering the Twilight Zone: A Historical Look at the National Emergency

By Alex Simard (PO’22)

Mere hours after signing a measure to avoid a second government shutdown, President Trump declared a National Emergency in order to advance his campaign promise to build a wall along the southern border. A litigious storm followed the announcement as advocacy groups amassed and began contemplating how exactly to block the President’s emergency declaration in the courts. What’s likely to ensue in the coming months is not rapid construction of a border wall but rather a constitutional debate over the legal extent of executive power and the breadth of the National Emergencies Act. In this piece, I’ll look at why history tells us that, ultimately, the actions of Congress are likely to determine the fate of the recent declaration.  

The United States Constitution says little about emergency powers. What it does say is encompassed in Article I, which gives Congress the right to suspend habeas corpus when “public safety requires it” and to “call forth the militia to execute the laws of the union, suppress insurrections and repel invasions.” Nowhere in Article II, where executive powers are defined, do emergency powers appear. Nevertheless, it’s commonly held that the executive branch, designed to respond more efficiently to crises than Congress, holds some “implied” emergency powers.

Thomas Jefferson espoused that view. The man often hailed in Americana as an advocate for limited government in fact defined the American presidency not as a passive extension of the Congress, but as a powerful central branch. Jefferson’s presidency embraced “executive prerogative,” or the idea that a president has the right to act without the direct consent of Congress. Take Jefferson’s unilateral purchase of the Louisiana territory as an example, wherein he circumvented Congress for the sake of “expediency.” However, it’s worth noting that Jefferson didn’t believe in absolute prerogative, rather in a prerogative that “secured the good of the country.” Jefferson wrote that “the laws of necessity…of saving our country when in danger, are of higher obligation than…written law.” In Jefferson’s mind, the decision to wield executive prerogative rested on a good faith debate that weighed “reverence for [Congressional] law” and “public advantage.” In the midst of the Civil War, Abraham Lincoln would turn to Jefferson’s test when suspending habeas corpus, asking whether “disregarding a single law” outweighed the risk of the US government being “overthrown.” Following Lincoln’s Presidency, the U.S. began a slow march to the world stage. While there’s no doubt that the government of Lincoln and Jefferson was a government helmed by Congress, the U.S.’ ascension to global prominence, especially during the second Roosevelt Administration, pushed Congress aside, leaving the executive emboldened to wield its prerogative.  

Roosevelt’s expansion of authority came to a head in 1942 after signing Executive Order 9066, which ordered the internment of Japanese Americans. The Order precipitated a legal challenge in Korematsu v. US. In Justice Hugo Black’s now infamous majority opinion, echoing both the words of Article I and the writings of Jefferson and Lincoln, the Supreme Court argued that “the need for action was great and time was short,” that “pressing public necessity” sometimes justified policies of questionable constitutionality.

In 1952, a Supreme Court case would create a rare moment of reflection on rapidly increasing executive authority. As the Korean War raged across the Pacific, steelworker unions announced a strike. President Truman, worried that the strike might jeopardize the war effort, signed an executive order nationalizing the steel industry. While Truman notified the Congress of his actions, he made clear his belief that congressional assent was unnecessary. In the following weeks, an inflamed Congress held hearings and votes in opposition to the declaration while the steel industry headed to the courts. In Youngstown Sheet & Tube Co. v. Sawyer, the court struck down Truman’s executive order. Interestingly, Hugo Black delivered the court’s opinion. But it’s not Justice Black’s decision that lives on; rather, it’s Justice Robert Jackson’s measured and resonant concurrence.

Justice Jackson, who dissented in Korematsu, saw Youngstown as an opportunity to lay out before the nation what had become of the executive office. Jackson centers his concurrence on Congress’ opposition to the declaration. To Jackson “presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress.” Jackson lays out three stages of presidential power. Presidential “authority is at its maximum” when the president acts “pursuant” to Congress, exists in a “zone of twilight” when acting “in absence” of Congress, and is “at its lowest ebb” when in contradiction with Congress. Jackson places the presidency in relative terms, and modifies the Jeffersonian test, placing limits on executive prerogative. Jackson introduces a new element to that good faith weighing, the consent of Congress, the traditional constitutional power. More broadly, Justice Jackson also issues a veiled warning about the office of the president, arguing that the waxing “prestige” of the executive crowds out “those who are supposed to check and balance his power.”

Over two decades after Jackson writes his concurrence, Congress passes the National Emergencies Act of 1976. The Act, born out of Jackson’s vision, is an attempt to consolidate and codify the myriad snippets of emergency powers legislation passed in decades prior. The law mandates that the president give clear statutory reasoning for any emergency declaration and disclose all spending the declaration might entail. In turn, Congress must take up an oversight role, meeting every six months to analyze the progress of the emergency and consider a vote on its termination. This law has failed. Since 1976, Congress has never once met to vote on termination, and today 32 states of emergency are in effect, the oldest dating back to 1979.

All of this takes us to President Trump’s declaration. The administration alleges that there exists a national security threat at the U.S. border that requires the immediate diversion of Department of Defense Funds. According to the Brookings and Cato Institutes, evidence for that national security threat is scant at best, and evidence that the wall would address that threat is practically nonexistent. However, it’s likely those facts will matter little to the Supreme Court. Recall that Korematsu was decided on since disproved evidence and recently in Trump v. Hawaii, the court cited “public safety concerns” as reason to allow travel restrictions on six Muslim majority countries and two others, rejecting an Establishment Clause challenge despite the President’s anti-Muslim campaign rhetoric. The Roberts Court seems poised to offer a lenient interpretation of executive prerogative when it’s placed in terms of public safety and national security.

If the court is ready to accept broad interpretations of executive privilege, then why is Trump’s most recent declaration on contentious legal footing? Unlike the executive actions of Jefferson or Lincoln or past cases like Korematsu, Trump’s recent declaration exists in the legal sphere of Youngstown and may be subject to Jackson’s Congressional test. It remains to be seen how the Roberts Court might rule, but if it embraces Youngstown, assessing Trump’s declaration in relation to congressional approval will be central to the decision. Therefore, how Congress acts in the coming weeks is vital. House Democrats already plan to take up legislation blocking the declaration and several Republican Senators have voiced concern. Both parties staunchly opposed the emergency declaration to begin with, and if both chambers pass legislation blocking the declaration and force a veto, the President will be acting in explicit contradiction to the wishes of the Congress. Such a move would “fluctuate” the powers of the President and in the eyes of the court, he’d be acting out of the “zone of twilight” and at the “lowest ebb of his power.”

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