Saturday, February 23, 2019

To End an "Emergency"

The NY Times Editorial Board cutely commented on the President's supposed "emergency," calling it "the presidential equivalent of phoning 911 because your pizza delivery is taking too long." But, of course, it is much more serious than that. Not only is it a dishonest fabrication of a non-existent "emergency," but it is also and more importantly a direct challenge to our constitutional system. 

As in ancient Rome, the transition from republic to empire has (perhaps inevitably) involved a transition from legislative to executive dominance, from constitutional norms to Caesar's norms - most notably in the area of executive (as opposed to congressional) war making, but also in so many other areas as congress has consistently abdicated its assigned responsibilities. Over the years, we have become increasingly accustomed to presidents acting on their own and have even often applauded it when we preferred the particular policy and despaired of Congress ever actually acting as it was meant to act by Article I of the Constitution.

That said, this president seems here to have crossed that proverbial "red line," brazenly acting on his own to spend money on a project which congress has already debated and decided otherwise. The challenge to any residual notion of constitutional and congressional respectability is evident in the extreme.

Fortunately for Congress (or, perhaps, unfortunately for those members who consistently prefer not exercise the responsibilities they were elected to exercise), The National Emergencies Act of 1976 specifies a procedure for Congress to follow in just this kind of case. And on Tuesday the House of Representatives will take the first step in that process, voting on a Joint Resolution of DisapprovalThat Resolution (introduced by Democratic Congressman Joaquin Castro of Texas) says simply: Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That, pursuant to section 2020 of the National Emergencies Act (50 U.S.C. 1622), the national emergency declared by the finding of the President on February 15, 2019, in Proclamation 9844 (84 Fed. Reg. 4949) is here-by terminated.

The nice thing about this is that, according to The National Emergencies Act of 1976 this Resolution is privileged and so, assuming it passes the  House, it must be voted on by the Senate (within 18 days). So the Senate Majority Leader cannot play his usual role as obstacle to democratic decision-making.

The Senate will serve as the real test of whether Congress can still function as it was intended to function. Will enough Republican Senators break with their party and vote for constitutional government? We will see. 

If they do so and the resolution passes, presumably the President will veto it. So Congress clearly cannot in that case on its own terminate this "emergency." Even so, Congress will have spoken clearly and made a major move in rediscovering its role in our constitutional system.

Of course, in keeping with the way our system has evolved, the ultimate adjudication of this issue will almost certainly be by the judiciary - in this case, again almost certainly, the Supreme Court. How that body (newly populated with at least two presidential acolytes) will decide the case that comes before it is at present anybody's guess.

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