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Interesting piece by @jgeltzer in @JustSecurity today about Trump’s use and threatened use of emergency powers. I agree with much of it, but I respectfully disagree with his ultimate conclusion. 1/16 justsecurity.org/65978/blame-tr…
Josh is unquestionably right that Trump’s use of the National Emergency Act (NEA) to grab funding for the border wall is an abuse of the law (as I’ve said on many occasions). As a simple factual matter, there is no “emergency.” 2/16
I also agree with Josh that using the International Emergency Economic Powers Act (IEEPA) as Trump proposes would be an abuse of the statute. To invoke IEEPA, Trump must declare that an “unusual and extraordinary threat” exists. That’s clearly not the case. 3/16
Needless to say, the president shouldn’t declare an emergency if none exists. The trigger in the NEA & IEEPA, however, is not the *existence* of an emergency, but the *declaration* of an emergency by the president. And Congress chose not to define the term “emergency.” 4/16
As a result, courts have been reluctant to second-guess emergency declarations; some have even suggested that whether an emergency exists is a non-justiciable “political question.” 5/16
Even if we all know Trump is abusing the law, that knowledge is of limited use to those directly affected by the abuses if courts aren't willing to say so. 6/16
Josh also notes that the NEA and IEEPA were passed to impose constraints on a previously lawless system. Yes, we’re better off with them than without them. But that's not the choice on the table. The real choice is: do we accept these laws as they are, or push for reform? 7/16
To be fair, Josh acknowledges the laws are "imperfect." But in the short term, he wants executive lawyers, Congress, the courts, & the markets to stop Trump’s abuses. He thinks that’s more likely if we stop focusing on the role played by the weak safeguards in the NEA/IEEPA. 8/16
I wholeheartedly agree that executive branch lawyers, Congress, the courts, and the markets should act now to shut down specific emergency powers abuses. But I disagree that calling out the weaknesses in the law will keep that from happening. 9/16
As Josh notes, executive branch lawyers in this admin haven’t been much help; commentators calling Trump’s actions illegal won’t change that. Congress and the markets are not driven primarily by the lawfulness of POTUS's actions, but rather the political & financial effect. 10/16
As for the courts, we can be confident that the plaintiffs’ lawyers will present the strongest possible case that Trump has violated the law (and there certainly is such a case to be made). 11/16
On the flip side, though, soft pedaling the problems with these laws could harm efforts to reform them. As someone actively working on those efforts, I can say that most members who support reform are driven by an understanding that Trump is exploiting weaknesses in the law.12/16
I often hear this from the staffers of members who oppose reform: “If it's so clear that Trump is violating the law, then courts will stop him, so there’s no need to change the statute.” 13/16
If reform were a pipe dream, this might all be academic. But a good NEA reform bill just passed the Senate Homeland Security Comm. There’s a real chance here, and success depends on members connecting the dots between actual or feared future abuses and problems in the law. 14/16
The NEA reform bill exempts IEEPA on the theory that it should be examined separately. That examination won’t happen if members see Trump’s threats as wild fantasies the courts will shut down, rather than exploitation of a law written so broadly, many courts won’t review it.15/16
The right solution is to call it as it is: Trump’s use of the NEA and proposed use of IEEPA are an abuse of the law, AND those laws are written in such a way that abuses are extremely hard to prevent or stop. Both statements are true & neither should detract from the other.16/16
