National Emergency?

Donald Trump’s power play in order to get his border wall built would seem to be unconstitutional on its face. But courts may well uphold his action. “Congress’s delegation to presidents of vast, essentially unconstrained power to declare national emergencies has been an irresponsible surrender of its constitutional responsibilities,” writes Peter H. Schuck, emeritus professor of law at Yale ( His op-ed has a valuable, and disheartening, link to a compilation by the Brennan Center for Justice of numerous “emergencies” in which Congress handed greater executive power to the president ( And only in rare instances has the Supreme Court either limited executive initiatives or taken back from a president what Congress has surrendered.

There is a potential silver lining, however: a Democratic president might just declare climate change a national emergency–which it is!–using the Trump and other precedents.

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  1. Wait till a Democratic President is in power and how emergencies are declared: gun violence, climate change…

    1. … and let’s not forget universal health care! Trouble is, these constant expansions of presidential power weaken the role of Congress, public opinion, and other institutions of democracy–and, as with Trump, can be exploited by unscrupulous leaders.

  2. Hi Mel,

    Thanks for this post and the link to Peter Schuck’s piece in the NYT, which I somehow managed to miss. The only question I have at this point – and I’m 100% certain I’m not the first or only one to ponder this – is why the District and Appeals courts in the 9th Circuit would take Trump’s emergency declaration seriously to begin with, and why, should the matter ever make it to the Supreme Court, would that body even consider granting cert to such an appeal, when Trump, himself, essentially denied the existence of an emergency by saying “I didn’t have to do this”? When will the madness end?

    I hope all is well with you and Jodi


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