Opinion: How the Supreme Court weakened Congress on emergency declarations
A police officer on the steps of the U.S. Supreme Court in Washington. By Richard H. Pildes March 14 at 2:53 PM Richard H. Pildes is a professor of constitutional law at the New York University School of Law.
To understand how that Supreme Court decision dramatically affected the way the government works, consider what Congress had intended when it passed the National Emergencies Act. The law, created in the post-Vietnam and post-Watergate years, was one of many adopted in that era to constrain what had come to be called “the imperial presidency.” Congress decided that the awesome and dangerous power to declare emergencies required the agreement of both political branches of the government.
Thus, Congress retained the power to end any presidential declaration of emergency. Congress could do that if the House and Senate passed a concurrent resolution to end the emergency. Crucially, a concurrent resolution, which in this context is also known as a legislative veto, is not a statute: The president has no say in such a resolution and cannot veto it.
Rightly or wrongly , the court concluded that Congress cannot act through a legislative veto but can act only by passing a new law. In the case of Trump’s declaration of a national emergency, that means Congress cannot simply disapprove, thus terminating the declaration, but instead must give Trump the chance to veto Congress’s disapproval, as he has promised to do.
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