Will emergency declaration stand?
By Andrew Rudalevige
February 18 at 7:00 AM
... Justice Robert Jackson’s concurring opinion in Youngstown sought to lay out a three-“zone” framework for gauging the legitimacy of presidential claims to power. In the first zone, the president acts with congressional approval; here, the president’s authority “is at its maximum.” In the second — which Jackson called the “zone of twilight” — the president acts in a sort of vacuum, without Congress rendering any opinion, and judges would have to assess whether his decision was grounded in the Constitution. In the third, the president’s action is “incompatible with the expressed or implied will of Congress,” in which case “his power is at its lowest ebb” ...
... the present case goes to the spending power — authority the Constitution explicitly grants to Congress — in ways Youngstown did not. Princeton’s Keith Whittington even speculates that some justices could use this case to rein in what conservatives have long considered excessive administrative delegation to the presidency generally ...
... The NEA activates a specific section of law governing military construction spending, funding the administration wants to raid for the wall. Law professors have argued that the section is activated only by an emergency that “requires the use of the armed forces,” at which point only construction that is “necessary to support such use of the armed forces” can occur. Others add that the wall simply doesn’t match the statute’s detailed definitions of the kind of projects it allows ...
The best possibility the president can hope for, then, is a long delay before any actual wall is built. Congress could answer all the legal questions above — and protect its vital power of the purse — by using the NEA’s procedure to rescind the president’s declaration. It might even revisit the NEA itself ...
https://www.washingtonpost.com/news/monkey-cage/wp/2019/02/18/will-the-presidents-emergency-declaration-stand-here-are-three-and-a-half-reasons-it-may-not/?utm_term=.76441e9c4e67