The Constitution is working, but Congress isn’t

Written by Rick B. Larsen

January 18, 2019

Originally published in The Salt Lake Tribune. 

The current debate over the border wall and the associated government shutdown is complex politically and constitutionally. Scholars are debating what the president can and cannot do, and partisan divides are on full display.

But something important is being lost in the arguments.

We the people can learn from this, and the lessons can empower us as citizens and inform our actions as voters.

First, we must remember the basics of the Constitution, and second, assign accountability (or blame, if you prefer) through that lens.

The Constitution works. We may fail to understand and recognize its protections – a frequent error at a time when many voices doubt the validity of the Constitution – but it is working right now. This moment provides good opportunity for those who study the document to explain and marvel at the brilliance of it – and give credit to our Founding Fathers, who were so prescient as to create a document designed for a 21st-century crisis.

The executive office was created for the eventuality of moments when a president must act quickly and decisively in the best interests of the nation.

Alexander Hamilton endorsed the powers of the presidency, writing in Federalist Paper No. 70, “Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks.” Ever promoting balance, John Locke qualified the circumstances for such action as when congressional powers are “lacking or unavailable.”

The president is considering acting under the Constitution and the National Emergencies Act, which was passed in 1976 to add clarity to the roles of the president and Congress in a national emergency. The National Emergencies Act allows for decisive action by a president while maintaining checks and balances. (It has been employed 15 times since 2002.)

Historically, emergencies had a different feel. When George Washington and Abraham Lincoln declared national emergencies, they were facing the potential destruction of the Union. Today, there are claims that such a declaration is presidential overreach and unfairly bypasses Congress.

We should make no mistake – the president has the power to declare a national emergency, and the definition of an emergency was left intentionally vague. But the real lesson to be learned may be this: The only reason Congress is lacking or unavailable in this instance is partisan bickering. This is a crisis that need not have occurred.

We should have confidence based on the fact that whatever decision the executive may make, Congress can, through a joint resolution, overcome the declaration – or defund it via the Appropriations Clause.

The National Emergencies Act states, “Not later than six months after a national emergency is declared, and not later than the end of each six-month period thereafter that such emergency continues, each House of Congress shall meet to consider a vote on a joint resolution to determine whether that emergency shall be terminated.”

These protections against an overly ambitious executive branch rightly rest with Congress – but a Congress that ideally is not complicit in the problem.

We should not – and arguably cannot – look to the courts: First, they cannot possibly be privy to all facts surrounding a presidential declaration of a national emergency. Second, to make a ruling for or against a declaration, a court would have to define what a national emergency is – a definition intentionally not found in the Constitution.

Which all leads to the only way to resolve matters: Members of Congress need to fix this. They should have done so long ago.

The very people we elected at the state level to represent us in this brilliant choreography that is our form of government – designed to protect us against power and tyranny – need to represent us, not a political party.

Rather than trying to either enshrine or eviscerate a sitting president, they need to stand on the values that built this nation – which include a safe and managed immigration process – and stop serving only political ambition.

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