Who empowered President Donald Trump to declare that “a national emergency exists at the southern border of the United States”? Congress. Congress authorized such sweeping authority. Congress failed to impose meaningful constraints or define “national emergency.” Congress is failing to maintain accountability by failing to abide by its six-month mandatory reviews of such emergencies. And it is Congress that has the power to terminate Trump’s proclamation by a joint resolution of both chambers of Congress. According to recent reports, the House is going to introduce a joint resolution to do just that on Friday. The Senate would need to sign on. But since the president can veto this joint resolution, both chambers will need a two-thirds majority—an unlikely scenario in this political climate.
Congress brought this on itself. Long ago, it could have required the president to meet certain procedural or substantive requirements prior to unlocking this broad national-emergency authority. As I argue in a recently published paper, procedural constraints can come in many forms. Congress could require a president to consult with its members with a proposal to proclaim a national emergency, and require congressional approval of the emergency. It could also require the president to include a justification of the circumstances that require the proclamation. Or Congress could require the submission of a complete record of the factual evidence that the proposed national emergency is based on. It could require documentation of the time-sensitive nature of the action, accompanied by documentation explaining why there is insufficient time for Congress to address the issue through legislation. Or Congress could provide for automatic termination of such emergencies after short periods of time, as opposed to defaulting to perpetual emergencies. These commonsense measures could go a long way in ensuring that presidents do not abuse this delegated authority.