Aziz Huq discusses whether Congress can block Trump's emergency declaration
Congress is voting to end Trump’s ‘emergency.’ But the vote won’t stop him.
The House voted Tuesday to disapprove President Trump’s emergency declaration redirecting Defense Department funds to construction of a southern border wall, and the Senate will soon take up the question. Many in Congress doubt the president’s claim that there is an emergency at the border, as the National Emergencies Act of 1976 requires. Many also think the president has failed to satisfy the statutory triggers for reallocating military funds in an emergency.
Will Congress’s actions make any practical difference? The answer is almost certainly not. That is because ending the emergency declaration requires a two-thirds supermajority in both the House and the Senate to overcome a nearly certain presidential veto. To put it mildly, reaching that threshold is extremely unlikely.
But the original 1976 law did not allow a president to veto Congress’s effort to rein in an assertion of emergency powers. That odd result is a consequence of a 1983 Supreme Court decision called INS v. Chadha that stripped Congress of the ability to unilaterally end a presidentially declared “emergency.” As a result of that decision, Trump could make such a declaration with little fear of congressional pushback. The court in effect created a new presidential power that — as we are now seeing — poses a significant threat to the rule of law.
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