The President only has two enumerated constitutional duties, to be the Chief Executive of the Executive Branch and be Commander in Chief of the Armed forces during time of war. That is it. His oath in Article II of the Constitution requires him to protect and defend that Constitution. Additionally, he is constitutionally bound to take care that all laws be faithfully executed given to him by the Legislative Branch which is charged to make all laws necessary and proper to carry out the enumerated powers listed in the Constitution for all branches of the federal government.
The President has both explicit and implied powers to take care that those laws be faithfully executed. He can only exercise power granted to him by the Constitution and the Legislative Branch. He cannot make law and has no plenary power domestically save for invasion and insurrection. As Head of State, he does have broader, even plenary power, overseas. Even then, he is bound by the parameters, in large part, of international law.
There is clear and specific dicta, precedent and rulings regarding the above by the Supreme Court of the United States. Though the Judicial Branch defers greatly in the exercise of national security powers by the two political branches, the Executive and Legislative branches, they make it very clear that a President cannot step away from the clear confines of the Constitution. Justice Robert Jackson in his famous concurring opinion in “The Steel Seizure Case” stated that without the support of the Legislative Branch a President is acting weakest in the use of executive power.
It is important to note that federal power to govern is strictly limited to the enumerated powers in the first three articles of the Constitution. The Tenth Amendment to our Constitution clearly and unambiguously states that all powers not enumerated in the Constitution are reserved to the States or to the people. Almost all power to govern domestically is with the various States, who are separate and sovereign entities under our federated Republic. Federal power is limited and enumerated within the parameters of the Constitution.
National emergencies are within the executive powers of a President if given that power by the Legislature. Should a President act under that power granted under law, such as in the National Emergencies Act, he is taking care that the laws be faithfully executed. Acting outside of the act, he is constitutionally weakened and perhaps breaking the law. Throughout history Presidents have acted in actual or perceived emergencies such as, the Whiskey Rebellion, the War of 1812 and the invasion of the United States by Great Britain; the Civil War; the Pullman Strike; the Korean War; as well as the so called “war on terror” precipitated by the 9/11 attacks. These were in fact emergencies.
Given all this, are we about to see the current President declare a national emergency along the southern border allowing him to take executive action such as building a wall? He can declare a national emergency for whatever reason, but that rationale will most assuredly be reviewed by a federal court. That court will consider the enumerated powers of the Executive, his role domestically in exerting executive power vis a vis the Constitution and federal laws, the historical use of those powers, legal precedent (to include the clear guidance by the Supreme Court related to that power), and then apply the facts.
Given the facts, and applying the law, the President will ultimately fail in his politicized attempts to build his wall. A court will give great weight to the President’s declaration of a national emergency. The court may even defer to his judgement, as the Supreme Court in several rulings has stated that it will not get involved in political decisions particularly related to national security.
In this instance though, a federal court will look to the law and the factual underpinnings of the declaration and find that there is no national emergency that was earlier contemplated by historical and legal precedent. The President is not taking care that the law be faithfully executed, as there is factually no emergency. The court will state that a President has limited domestic power absent an invasion or insurrection. This manufactured crisis to get around legislation he disagrees with does not come close to an emergency and a federal court will most likely not defer to the President related to this “national security issue”.
The beauty of our Constitution is that it does not place the power to govern in any one person, but distributed that power throughout the three branches of government, all three being co-equal. They can each constitutionally check the improper use of that governmental power. We will see this play out when all three branches of our government flex their constitutional muscle in clarifying the power of a sitting President to declare a national emergency as it relates to our southern border.
I predict that the federal court, perhaps ultimately the Supreme Court, will once again note that a President has a right to protect and defend the United States, but the right is enumerated by the Constitution and law. The federal court will then rule that based on the facts presented that there is no national emergency contemplated by law and his enumerated powers and declare the action by the President unconstitutional. A ruling such as this protects Executive power in times of crisis and national emergency, yet stops this “national emergency declaration” by this President as it is factual unsound.
As Justice Black stated in his majority opinion in the “Steel Seizure Case” (in declaring that an Executive Order by President Truman during the Korean War was unconstitutional): In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea he is a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad.
This President cannot ignore the law or pending legislation and go around the will of the Legislature. There is no national emergency to declare nor is there an invasion or insurrection. The current President is operating outside his enumerated powers given by the Constitution and federal law. He should heed the clarion call of our Constitution that he is bound to take care that the laws be faithfully executed. If the President truly declared a national emergency for political gain and purpose, he is not faithfully executing the law. My bet is on the Constitution and our federal courts that they will so rule.
David M. Crane was the Founding Chief Prosecutor, International War Crimes Tribunal in West Africa, called the Special Court for Sierra Leone; Founder of the Syrian and Yemeni Accountability Projects; Principal, Justice Consultancy, LLC; and a Distinguished Scholar in Residence, Syracuse University College of Law.
Suggested citation: David M. Crane, Take Care That the Laws be faithfully Executed – A Manufactured National Emergency, JURIST – Academic Commentary, Jan. 15, 2019, http://jurist.org/forum/2019/01/crane-executive-national-emergency/
This article was prepared for publication by Kelly Cullen, a JURIST Senior Editor. Please direct any questions or comments to him at email@example.com