
The National Emergency Mess Shows Just How Broken Washington Is
Trump caused the problem, but Congress should have been able to fix it.

We at The Bulwark, perhaps youāve noticed, havenāt been too keen on President Trumpās effort to build his wall on the southern border via national emergency declaration. Not only is Trump engaging in a totally gratuitous executive power grab, a real kick in the teeth to conservative pieties about limited government and the separation of powers, he couldnāt resist browbeating almost every GOP lawmaker into going along for the ride. As a result, an entire generation of congressional Republicans have now relinquished all credibility when it comes to opposing future flexings of the executive will to imperial power, a sacrifice they will surely have cause to regret in the years ahead.
One must resist the temptation, however, of viewing this boondoggle, purely as a Trump problem. The most depressing aspect of the whole affair, in fact, isnāt what has been unprecedented about it but what has been totally commonplace and quotidian: Congressās ability to fritter away opportunities to pass crucial reforms because everyone involved judges it to be in their short-term political interest not to pass them.
When Trump first began openly floating the idea of breaking the national emergency glass in January, the knee-jerk critical response was: He canāt just do that, can he? The national emergency system exists so that the executive can take swift, decisive action in moments of time-critical crisis where congressional action is too sluggish and unwieldy to suffice; any fool could see that a systemic, decades-old problem like a porous border shouldn't qualify. But given that the whole point of the mechanism is to empower the executive to act in circumstances unforeseen by legislators, it makes sense that the precise limits of the presidential ability to declare emergencies are, as a matter of law, relatively vague. The law instead empowers Congress to exercise a prudential check over the president: If they think heās using emergency powers irresponsibly, they have the ability to cancel the declaration. This system works great on paper; this month, America discovered its greatest practical flaw: It doesnāt really function when one party in Congress is more afraid of crossing their president than of ensuring the fidelity of the system.
One response to this, a not unreasonable one, is simply to shake oneās fist angrily at the president. We had a good thing going until you came along and mucked it all up! But thereās another, wiser way to see Trumpās abuse of the system: If a president who doesnāt respect limits to his power was able so easily to twist the system to his will, well, what good was the thing to begin with?
Thatās the spirit in which Senator Mike Lee proposed a bill reforming the national emergency system earlier this month. The bill, titled the ARTICLE ONE Act (please donāt ask about the acronym), would cause national emergencies declared by the president to automatically expire after 30 days unless Congress votes to approve them, and require Congress to reauthorize them again on an annual basis. Itās an elegant proposal that preserves the spirit of the systemāgiving the president broad short-term powers in times of crisisāwhile eliminating the possibility of the sort of abuse Trump has made clear is all too possible under the current framework. It doesnāt instantly cancel Trumpās current national emergencyāthe president, of course, would never sign on to thatābut it gives Congress a chance to sunset it a year from now. Itās a slam-dunk. Itās going nowhere.
Youād hope this wouldnāt be so. To hear them talk, Republicans and Democrats alike in Congress agree that the current national emergency system is ripe for abuse; even many Republicans who voted to allow Trump to declare the border emergency on the grounds that it was not prohibited by current law suggested they thought the law should be changed. The statement from Ted Cruz, who co-sponsored Leeās bill, was illustrative: āI understand my colleaguesā real concerns regarding the vast emergency powers that Congress has given the President over the last half-century. I share those concerns⦠The National Emergencies Act gives the President the authority to activate more than a hundred distinct emergency powers, including those he is exercising here. That statute is, I believe, over-broad. It invites abuse.ā
Even President Trump has signaled that he would be open to amending the rules governing the national emergency systemāprovided, of course, that he can still build his wall. So why isnāt Congress passing the thing? What gives?
On the Democratic side of things, the answer is obvious: By and large,what angers congressional Democrats isnāt the idea of untrammeled executive power. Itās rather the idea that a bad man like Trump should be able to wield it. Any legislation clipping presidentsā emergency power wings that doesnāt immediately foil Trumpās border plans does nothing for them. In some of their eyes, in fact, such legislation would be a net negative: If Trumpās going to get away with this border travesty, well, why on earth shouldnāt they get to ram a few of their policy priorities through too, when they take back power?
This suffices to explain why House Speaker Nancy Pelosi has come out against Leeās bill, ostensibly on the grounds that it gives Trump permission āto violate the Constitution just this once.ā Leeās bill, of course, does no such thingāitās an update to the function of the system, and would treat Trumpās latest emergency declaration the same as all current ones. Pelosiās refusal to support the bill, or any bill accomplishing the same thing, is a tacit endorsement of a system that remains vulnerable to the kind of abuse she claims to abhor.
Itās a transparently political move on Pelosiās partāand thatās good enough for congressional Republicans. The national emergency vote was a sore spot for many of them, and theyād be perfectly content to sweep the whole thing into the past. Pelosiās disapproval of the Lee bill provides the perfect excuse. Weād love to amend the system, they can sayāitās only the Democrats who stand in the way!
Thereās a certain temptation that critics of President Trump must strive to avoid. The man is vacuous, short-sighted, self-centered; practically everything he touches he makes worse. But much of the manās behavior is so shameless and shallow that it can encourage lazy criticism. It is easy to see and remark upon the damage Trump does; more difficult, often, to see beyond that damage to the more quotidian dysfunction that preceded him and will remain long after his departure. President Trump got us into our current national emergency mess. But the fact that we canāt find our way back out of itāthatās classic Washington.