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Editorial: Border Wall Issue Requires Congressional Decision

A couple of weeks ago, frustrated by Congress' repeated refusal to appropriate funds to build a wall along the American-Mexican border, President Donald Trump declared a state of national emergency. He made no effort to disguise the fact that his declaration was intended to allow him to circumvent Congress' constitutional control of our nation's purse strings. The president intends to redirect already appropriated Defense Department funds from buying bombs and bullets to erecting his wall.

Whether one agrees or disagrees with the practicality (or even the possibility) of building an impervious fence several thousand miles long on our southern border, what's troubling is the constitutional and potentially anti-democratic impact of the president's disregard of congressional power.

But wait, you say, the law under which Trump acted is long-established and needs only to be interpreted by the courts to determine if the claims of need standing behind the wall really support a national emergency declaration. We must disagree.

While the courts may have legal jurisdiction to decide relevant issues, they should be wary of exercising that power. They should not jump to be involved, but should carefully consider whether doing so might be more harmful than helpful to our democratic processes. We submit that they should invoke the Youngstown political questions doctrine and stand aside. Going to the courts may seem to make perfect sense in a society that over the last decades has made court action the default button in deciding many thorny questions of state; but we submit that in this case it is up to Congress to resolve the matter.

In Baker v. Carr, 369 U.S. 186 (1962), the U.S. Supreme Court set forth six tests for the existence of a political question, the most relevant here being the second: “a lack of judicially discoverable and manageable standards for resolving it.” Id. at 277-78.

In Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952), President Harry Truman in effect declared an emergency during the Korean War and ordered the Secretary of Commerce to seize most of the nation’s steel mills. The president did not act in reliance on any particular statute but claimed that the constitutional provisions defining his executive power, requiring that he take care to ensure that the laws are faithfully executed, and making him the commander-in-chief of the armed forces authorized his actions. The 6-3 majority held that they did not. In doing so, the majority did not discuss whether there actually was an emergency but said the commander-in-chief provisions do not include taking possession of private property to prevent labor disputes from stopping steel production, and his other constitutional powers do not allow him to become a lawmaker. Id. at 587-89.

The most recent U.S. Supreme Court case on the political question doctrine is Zivotofsky v. Clinton, 566 U.S. 189 (2012), in which the court held that the constitutionality of a statute permitting a person to list “Jerusalem, Israel” as his place of birth in a passport was not a political question. The court said the judicial issue was simply “whether the statute impermissibly intrudes upon the Presidential power under the Constitution.” Id. at 196. As the majority opinion by Chief Justice John Roberts Jr. concluded: “This is what courts do.” Id. at 201.

Embedded in the decision, however, is the following sentence: “The federal courts are not being asked to supplant a foreign policy decision of the political branches with the court’s own unmoored determination of what United States policy toward Jerusalem should be.” Id. at 196. And the following sentence: “Framing the issue as the lower courts did, in terms of whether the Judiciary may decide the political status of Jerusalem, certainly raises those concerns about the second prong of the political question doctrine.” Id. at 197.

It is these sentences that lead us to conclude that the president’s declaration of an emergency is a political question. First, he is acting on the basis of a statute that gives him the authority to declare an emergency. Therefore, this case does not raise the separation-of-powers argument decided by Youngstown. Nor is Congress acting in contravention of what the president claims to be his constitutional power concerning passports, as in Zivotofsky. But in the present case, rather than policing the borderline between congressional and presidential power, the courts would be deciding here the merits of the whole issue—whether there is an emergency. And what are the “judicially discoverable and manageable standards” for deciding that issue? We are hard-pressed to answer that question and therefore conclude that there are none.

Congress in fact anticipated that courts would not be in a position to review an emergency declaration and provided its own review process. Whether or not Trump has acted within the statute's scope, that same law gives Congress the power to override his action. This can be done by a simple majority, if the president is prepared to accept the congressional rebuke; by a two-thirds majority if he is not. Presumably, the legislative branch thought this very scenario through when it passed the legislation in the first place.

If Trump's congressional adversaries cannot collect the votes necessary to override his emergency declaration, his decision should stand as an expression of the popular will. That is the way a democracy works. For the courts to reverse his declaration by some Jesuitical legal magic applied in the face of a congressional inability to act, would be as anti-democratic as Trump's emergency declaration was declared to be in the first place, and such court action could further erode public confidence in the meaning of the vote and popular democracy. We can only hope that our congressional representatives and senators, of whatever party, will carefully consider this problem, put party aside and take action based on the good of the country.