Justice Oliver Wendell Holmes once said, “If my fellow citizens want to go to hell, I will help them. It is my job.” What…
Justice Oliver Wendell Holmes once said, “If my fellow citizens want to go to hell, I will help them. It is my job.” What he was expressing is the limited role of courts in challenges to federal law. It is not their task as judges to sit as a super legislature to question the priorities or policies of the political branches. They will gladly send Congress to hell. It only needs to be clear about the destination.
In the matter of the border wall, Congress could not have been more clear where it was heading. It has long put itself on the path to institutional irrelevancy, and it has finally arrived. While I do not agree that there is a national emergency on the southern border, I do believe President Trump will prevail. This crisis is not the making of Donald Trump. It is the making of Congress.
For decades, Congress frittered away control over its inherent powers, including the power of the purse. I have testified repeatedly before Congress, warning about the expansion of executive power and the failure of Congress to guard its own authority. The two primary objections have been Congress giving presidents largely unchecked authority and undedicated money. The wall controversy today is a grotesque result of both failures.
Start with the National Emergencies Act of 1976. Presidents have long declared national emergencies based on their inherent executive authority. The use of that authority produced some conflicts with Congress, the most famous being the case of Youngstown Sheet & Tube Company versus Charles Sawyer, in which the Supreme Court declared the federal seizure of steel mills during the Korean War to be unconstitutional because Congress never gave President Truman that authority.
In 1976, however, Congress gave presidents sweeping authority to declare national emergencies under the National Emergencies Act. While this law allows for an override by Congress, the authority to declare a national emergency is virtually unfettered. It is one of many such laws where Congress created the thin veneer of a process for presidential power that, in reality, was a virtual blank slate.
At the same time, Congress has continued to give the executive branch billions of dollars with few conditions or limitations. That is why President Obama was able not only to go to war in Libya without a declaration but to fund the entire war from billions of undedicated funds.
