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Sen. Mike Lee's Bill To Limit Trump's Emergency Powers Doesn't Actually Address the Immediate Problem

Lee's new bill would automatically terminate emergency declarations within 30 days, but leave Trump's current national emergency intact.

Ron Sachs/AdMedia/NewscomRon Sachs/AdMedia/NewscomCome Thursday, the Senate is expected to vote on a resolution terminating President Donald Trump's national emergency declaration, something that has put Senate Republicans in a tough position.

Voting yes on the resolution, which passed the House in late February, would reaffirm their rhetorical commitment to containing executive overreach and check a naked power grab by the president. It would also risk pissing off Trump and the GOP base, who're depending on the current emergency to fund the president's border wall.

Fortunately, Sen. Mike Lee (R–Utah) may have given these lawmakers an out. On Tuesday, the Utah senator introduced a new bill that would leave Trump's current emergency declaration intact, while placing restrictions on the future exercise of emergency powers.

Lee's bill—the awkwardly named Assuring that Robust, Thorough, and Informed Congressional Leadership is Exercised Over National Emergencies (ARTICLE ONE) Act—would automatically terminate an emergency declaration within 30 days.

Congress would have to pass a resolution explicitly endorsing an emergency declaration to prevent it from sunsetting. The bill would also give Congress the power to limit or amend the scope of any emergency declaration, and require the president to report how exactly his emergency powers are being put to use.

The idea, says Lee, is to claw back some of the powers Congress' has ceded to the executive branch over the years.

"If Congress is troubled by recent emergency declarations made pursuant to the National Emergencies Act, they only have themselves to blame," Lee said in a statement. "If we don't want our president acting like a king we need to start taking back the legislative powers that allow him to do so."

Whatever the intentions of the legislation, however, its introduction now could well enable the president's use of emergency powers in the short term. Lee's bill would allow senators to vote to keep Trump's wall-funding emergency in place, while also claiming that they are checking future abuses of executive emergency powers.

Sen. Thom Tillis (R–N.C.)—one of four Republicans who've said explicitly they would be voting in favor of terminating Trump's emergency declaration—is already wavering on that commitment following Lee's unveiling of his bill, according to The New York Times.

His defection alone could be enough to sink the House's resolution.

"If you would have asked me before…then I would have said, in the Senate, the president is going to lose," Sen. Joe Kennedy (R–La.) told the Times. Now, he's not so sure. "A lot of people are trying to think of a way to express their support for the president, but at the same time express their concern" about executive overreach, he said.

In addition to possibly preserving Trump's current wall-funding emergency declaration, it's also questionable how much Lee's legislation would limit the future ability of any president to declare national emergencies.

While the bill would automatically terminate these emergencies within 30 days, the president could still circumvent Congress by simply re-declaring a national emergency every month.

A spokesperson for Lee's office told Reason that while there's nothing in the senator's bill to prevent this kind of behavior, "such obvious shenanigans would be politically unsustainable."

That's certainly possible. But given that Congressional Republicans largely lack the political will to check Trump's current invocation of national emergency powers (powers many of them think the president shouldn't have in the first place), one wonders if they'll be more willing to check future excesses that still technically conform to the letter of the law.

"The history of these big framework statutes doesn't give you a lot of reason to hope that a new framework statute is going to solve the problem of lack of Congressional will to fight the executive branch on these things," says Gene Healy, Vice President of the libertarian Cato Institute and an expert on presidential powers.

Healy points to the War Powers Act—which puts limits on the ability of the president to deploy into foreign conflicts without Congressional authorization—as an example of a well-meaning statute that presidents have nevertheless managed to ignore or skirt without repercussion.

Nevertheless, Healy says that Lee's bill is a good first step toward reigning in presidential emergency declarations.

"I think it's a start. It would be better if these things are time-limited," he tells Reason. Healy also praised the bill's requirement that Congress approve an emergency for it to continue. The current National Emergencies Act allows emergencies to continue unless Congress explicitly votes to terminate them.

A more comprehensive approach, says Healy, would be to pare back the powers a president can unlock with an emergency declaration.

A Brennan Center paper from December 2018 found 123 statutory powers the executive can unlock by unilaterally declaring an emergency. There are currently 31 active national emergencies, some of which date back to the Carter Administration.

The New York Times reports that over a dozen Republican senators have said they'd support Lee's bill. House Speaker Nancy Pelosi (D–Calif.) today said that even if the ARTICLE ONE Act passed the senate, she would not bring it up for a vote in the House.

Photo Credit: Ron Sachs/AdMedia/Newscom

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  • Just Say'n||

    Lee's bill would overturn the congressional authority previously granted to the president. Anyone who actually opposes Trump's actions on principles would see that as better than the Democratic bill that might as well be named "Muh..Drumpf". But, this was never about restraining the executive if we're being honest.

  • Rossami||

    Precisely which previous grant of congressional authority are you talking about?

    And why, precisely, if it was within Congress' power to grant the authority in the first place, is it not within Congress' power to revoke that authority at will?

  • Dalben||

    It is within their power to revoke that authority at will, but any bill passed to revoke that authority can be vetoed by the President who is exceeding that authority meaning you'd need 2/3 of each house, a very difficult bar to clear, especially since it's likely that more than 1/3 of each house will be from the President's party, almost certainly more than 1/3 from at least one house, unless you've got some really weird and unprecedented election results.

    Trump is a lot less likely to veto a bill that allows his one time wall building expenditure that is extremely important to him, and that restrains all future presidents not just him.

    And even if you oppose the wall on principle or because it's a waste or money, extending already existing barriers a little for a tiny percentage of the budget may not be ideal, but it's no great harm either. The biggest reason to oppose it is symbolic. Not the only reason of course, but it's so much smaller than his original plans that it would certainly be approved in negotiations for something if it wasn't giving him a symbolic win.

  • Dalben||

    Also, there's nothing stopping Congress from voting on Lee's bill AND voting to stop Trump's emergency declaration.

  • Diane Reynolds (Paul.)||

    What about the national emergency where it was recently discovered that rich parents are buying their kids' way into college?

  • Leo Kovalensky II||

    Build the paywall!

  • Rat on a train||

    The solution is to require all rich parents to buy their kids' way. It's unfair that some rich kids get in on merit.

  • Nardz||

    Look, there's an easy solution:

    Just put all the people involved in the college bribery/fraud onto all the American owned Boeing max 8s and crash them into the parts of the US border that still need walls.

    ProblemS solved

  • Ham Sarris||

    These cowards don't have any principles. If you swore to uphold the constitution, vote to overturn the fake emergency. The election isn't even for another year. Even more appalling is senators who are cowards who aren't even up for election in 2020. Shame on all of them.

  • Leo Kovalensky II||

    But Trump might call them names on Twitter. You can only imagine the horror they are feeling in that.

  • Just Say'n||

    Mike Lee is proposing a law that would overturn the previous existing law that allows presidents to make these emergency declarations. That would actually limit the executive. But, instead, you and Christian just want to restrain Trump. TDS is no excuse for being such an unprincipled idiot.

  • chemjeff radical individualist||

    No, there are (at least) three positions here:

    1. Repeal/restrain the NEA for *all* emergencies, including Trump's emergency declaration.
    2. Repeal/restrain the NEA for emergencies going forward, but letting Trump keep his emergency declaration.
    3. Don't repeal/restrain the NEA, but just deny Trump his emergency declaration.

    #1 is, I think, the correct solution.
    #2 is what Mike Lee is proposing, and it sounds a lot like "we get our emergencies but you don't get yours".
    #3 is what Nancy Pelosi is proposing, which is of course the pure anti-Trump position.

    Don't confuse #1 and #2.

  • Just Say'n||

    As it stands there are two bills.

    1. The "muh...Drumpf" bill
    2. The repeal of NEA for emergencies going forward, but letting Trump keep his emergency declaration

    Some seem to think 1 is preferable which really exposes the lack of principle involved here. You cannot invent an option that does not exist

  • Just Say'n||

    I agree that "Repeal/restrain the NEA for *all* emergencies, including Trump's emergency declaration" would be preferable, but that isn't an option. There is no way that Democrats would ever agree to that and there is no way that enough Republicans in the Senate would agree with it.

    So we are left with two options. With (1) you really stick it to Trump, but also show that many still suffer from TDS to a profound effect and can be ignored. With (2) there is Congressional legislation ending the practice going forward, even if it does not eliminate the immediate use of the emergency declaration.

  • chemjeff radical individualist||

    I agree that "Repeal/restrain the NEA for *all* emergencies, including Trump's emergency declaration" would be preferable, but that isn't an option.

    So why didn't Mike Lee propose that? Are we just going to ignore that part?

  • jph12||

    There are 30 to 40 current emergencies under the NEA, declared under both Republican and Democratic administrations. And Lee's bill doesn't leave them unaffected--they expire one year after enactment of the bill unless renewed.

  • grb||

    Let's add a fourth position which reflects the real situation (vs political posturing)

    4. Repeal Trump's phony emergency by the mechanism written into the current law, since the NEA was not meant as means for a president (throwing a snit) to evade congressional appropriation authority. THEN revise the existing law, because future presidents throwing a snit might use it to evade congressional appropriation authority.

    If the law is worth revising - and that's a pretty common belief across the political spectrum at this point - then it's worth revising for better reasons than providing cover for DJT's jokey "emergency", right?

  • grb||

    Let's add a fourth position which reflects the real situation (vs political posturing)

    4. Repeal Trump's phony emergency by the mechanism written into the current law, since the NEA was not meant as means for a president (throwing a snit) to evade congressional appropriation authority. THEN revise the existing law, because future presidents throwing a snit might use it to evade congressional appropriation authority.

    If the law is worth revising - and that's a pretty common belief across the political spectrum at this point - then it's worth revising for better reasons than providing cover for DJT's jokey "emergency", right?

  • grb||

    (apologies for the double post. When you hit the submit button & nothing happens, it's almost automatic to hit it again - realizing a microsecond too late you've committed Dbl-Post-Sin)

  • Last of the Shitlords||

    We're not talking about the fake emergency. We're talking about the very real border crisis.

    Build the wall

    No more illegals

  • Ken Shultz||

    "Lee's new bill would automatically terminate emergency declarations within 30 days, but leave Trump's current national emergency intact."

    Expecting President Trump to sign a bill that will vacate his current state of emergency is retarded.

    Lee's bill is written in the hope that the president might actually sign it.

    Were you hoping the bill would be passed by congress just so you can call Trump a meany for vetoing it?

    Grow up.

  • Just Say'n||

    Lee's bill might actually get signed by Trump and would arguable be the largest restriction on the executive in a generation. But, the game is up, people have exposed what really drives them and it has absolutely nothing to do with restraining the executive- just THIS executive

  • Ken Shultz||

    You're absolutely right.

    Nancy Pelosi said she won't even bring the bill up unless it ends Trump's current emergency over the border wall.

    She won't bring it up for a vote in the House unless it contains a provision that the President will not sign.

    And the result is that we can't get a bill passed to limit the emergency powers of future presidents.

    Moreover, if the Democrats won't support limiting the emergency powers of the President while a Republican is in the White House, why would they do it when a Democrat is in the White House?

    The Democrats love them some evil. They don't want to solve problems. They want to keep evil alive and well so they can complain about it.

  • grb||

    Uh huh. The current NEA law has a provision to overturn bogus emergencies, which is the case here. Pass that, and then see if there's bipartisan support to revise an obviously flawed law. I bet the Democrats then supply more than their share of support for a NEA rewrite. But will the GOP be interested? If they can't use NEA reform to excuse Trump's constitutional abuse, will they even care? Maybe yes, but it's by no means certain.

    An NEA revision - uncoupled from Trump's wall farce - might even attract a veto-proof majority in Congress. If it can't, the problem is as likely Republicans in the House - not Democrats....

  • Last of the Shitlords||

    The wall is going to be built. That you're against it is just more proof it needs to happen.

  • grb||

    Sorry, guy; I'm already on the inside......

  • Ken Shultz||

    The only obligation we have to people on the outside is to respect their rights.

    To people on the inside, we're also obligated to respect the appropriate purview of democracy.

    This can be seen in the fact that setting the rules of naturalization are an enumerated power of Congress and foreign citizens are not afforded the right to vote.

    Suggesting that we should ignore these facts and the reasons for them because to do otherwise is selfish is absurd.

  • grb||

    Who is ignoring what?

    (1) Trump himself ignored his goofy wall for two years, and was happy to sign the pre-shutdown budget accord until he took heat from gawdforsaken Ann Coulter and Rush Limbaugh

    (2) But apparently our president can't take the heat. Those two entertainment clowns caused him to reverse direction 180 degrees overnight. The shutdown and "emergency" resulted.

    (3) This "emergency" is the result of Trump's panic over Ann Coulter.... And Rush Limbaugh. Does pathetic get more pathetic than that? Well, maybe Brexit....

    (4) Congress refused to fund Trump's useless wall. The power of the purse is THE most essential enumerated power of Congress btw.

    (5) Trump's NEA declaration will be rejected by a vote of Congress. It's a phony emergency to circumvent congressional appropriations after (a) There was an intense public debate on this issue, (b) There was an election where the issue figured heavily, (c) There is substantial public polling on this issue, (d) There was a shutdown on this issue alone.

    (6) The American people don't want the fool wall by a sizable margin. Trump lost the elections. He lost the shutdown. He lost the Congressional vote.

    How many of those facts do you ignore?

  • loveconstitution1789||

    Trump has to veto or sign this resolution if it passes.

  • Tony||

    So how much do you love the constitution?

  • Rossami||

    While it's probably good that Congress is finally trying to step up to at least some of their constitutional responsibilities, this bill is still support for the general principle that laws with acronym-based names are rarely good laws. Our legislators would be a lot more useful if they put half the time into drafting and proofreading their bills that they do to coming up with these stupid names.

  • Stephen54321||

    While the bill would automatically terminate these emergencies within 30 days, the president could still circumvent Congress by simply re-declaring a national emergency every month.

    A spokesperson for Lee's office told Reason that while there's nothing in the senator's bill to prevent this kind of behavior, "such obvious shenanigans would be politically unsustainable."

    Was it MORE political sustainable when Trump recently decided he was going to ignore the reporting requirements of the Magnitsky Act?

    Or for that matter when president after president has ignored Congress's prerogatives under the war power before staring some new foreign conflict, be it Korea, Grenada, or Syria?

    Then there's the War Power Resolution, which has a similar provision to Senator Lee's bill (for a presidential war started out congressional approval to end after sixty plus thirty days without a vote from Congress.)

    If ignoring that Resolution is politically sustainable, then why should ignoring Senator Lee's bill be any less so?

    The reality is that Senator Lee's bill can be evaded or otherwise not enforced then it will wind up being ignored if the right incentive comes along. Just like the War Power Resolution.

  • Eddy||

    "While the bill would automatically terminate these emergencies within 30 days, the president could still circumvent Congress by simply re-declaring a national emergency every month."

    Limp.

    Allow me to suggest a law that the President can only declare one (1) emergency based on any given set of facts.

    Phrasing will be key, of course, so my idea would need to expressed in a lot of words in order to be a useful law.

  • Eddy||

    Seriously, if it's simply a matter of signing some additional paperwork every month, the President could do that easily.

    "Good morning, Mr. President, here is your continental breakfast and this month's set of national emergency extension decrees."

    "Even this one, proclaiming an emergency based on the war with Spain in 1898?"

    "Yes, sir, you can never trust those Spanish types."

    "Ah, yes, good point. Here, I've signed them all."

  • Tony||

    I mean something's gotta give. Trump could nuke France and ejaculate on the ruins and his followers would still be bleating about Hillary's emails. The Republicans are in a tough spot, one only gotten out of by a modicum of actual patriotism. Godspeed, Republicans. You've enabled so much ridiculous horror. Now is the time to decide whether the votes of the stupidest yokels in the western world are worth going all the way.

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