Not an emergency

Continuing this series of my columns from last year, this one was published on July 27th.

The US Constitution specifies a separation of powers. Unlike in Britain, there is no monarch sitting at the summit – even figuratively – of the three co-equal branches. Congress legislates. The President executes the law. The judiciary adjudicates.

There is no point at which one branch failing to do what another branch wants creates an “emergency”. That word does not appear in the Constitution. Disagreement between the separate branches is a feature, not a bug. In parliamentary systems, the executive is accountable to the legislature. In dictatorships, the legislature is accountable to the executive. In the US both are accountable to the law.

The separate branches sometimes disagree. If agreement is a requirement for action – as it typically is with legislation or appropriations – then disagreement means no action can be taken. The different branches must find an accommodation, or the status quo prevails.

If the President says, “if you don’t act, I will”, he is effectively saying, “if you don’t obey me, I will seize powers which the Constitution grants to you”. The legislature is under no obligation to “act”, let alone to simply do what the President demands. When it stands up the President this is not a failure, or a crisis, it is constitutional government in action.

It is true that Congress has delegated some of its powers – far too many of them, in this column’s view – to the executive. Under certain strictly constrained circumstances, the President can invoke powers normally exercised by Congress. These are supposed to be for emergency use. For example, if Congress cannot convene fast enough to consider the proposal, then the President should be able to act.

If Congress has considered a proposal and declined to pass it, this cannot, by definition, constitute an emergency. That’s Congress exercising its constitutionally mandated role.

When President Trump wanted funds for a “border wall” and Congress refused, that was not an emergency. It was a disagreement. The President thought his pet project was a top priority. Congress disagreed.

When President Biden wants new policies on climate change and Congress refuses to enact them, that is also not an emergency. The policies themselves may be good or bad, but the need for them has not arisen since Congress last sat. For the President to invoke “emergency” powers while Congress is in session is necessarily suspect.

Nor is it acceptable for “emergencies” to continue indefinitely. They should continue until Congress has had the chance to debate the matter, and then automatically lapse. The oldest current “emergency” was declared by President Carter in 1979. Congress has had more than four decades to consider whether his proposed measures were sensible or not, and to either enact or not at its own discretion within the legislative powers which it, and not the President, gets to exercise.

There is urgent – perhaps even emergency – need to review the legislation under which presidents can declare emergencies. They should all lapse, if not affirmatively declared by Congress, at the end of the next session. Nothing Congress has refused to do should be deemed an emergency by the President without demonstrable and dramatic changes in circumstances.

Congress should legislate and the President should execute the law.

Quentin Langley lives in New York and teaches at Fordham University. His book, Business and the Culture of Ethics was published in September 2020