How a 1982 SCOTUS Case Let Trump Circumvent Congress and Fund his Wall

I’m teaching Introduction to Government in the United States this semester. I love following the news while teaching this course. Invariably, events unfold in the news that are difficult to reconcile with the basic principles I’m teaching my students. Sorting out what’s going on often deepens my understanding of government, and points to interesting unanswered questions. In this case, I found out that Donald Trump’s surprisingly broad capacities as concern emergency powers and border wall funding trace their origins to a 1983 Supreme Court case that seems ripe for reassessment.

A basic principle I teach my students is that when it comes to the power relationship between the president and Congress, the president has the power of the sword (the military, or unilateral action more broadly construed), and Congress has the power of the purse. This is a core principle in understanding American government, and it goes back to Alexander Hamilton. Although there has been a gradual ebbing of power from Congress to the executive branch over time, I tell my students, spending authority is Congress’s ace in the hole. Sooner or later, the president needs money to carry out his agenda. Congress can attach strings to the money is provides, or it can say no.

Of course, the day after the lesson, Donald Trump said he was going to spend a bunch of money that Congress didn’t authorize, and it became my job to explain why he can do that what’s going to happen next.

The basis for Trump’s authority in this case derives from the National Emergencies Act, signed by Gerald Ford in 1976. This Act allows the president, upon declaring that an emergency exists, to repurpose funds from one source to another. In this case, funds are being shifted from planned military construction projects (housing on bases and so forth, I believe) to the wall.

If you think this sounds like a surprising concession for a Democratic Congress (which it was in 1976) to make to a Republican president, that’s a fair point. Why would Congress abdicate its spending authority in this way?

It turns out they didn’t. The National Emergencies Act included a provision that allowed Congress to terminate the state of emergency by passing a resolution. This resolution could be introduced in either the House or the Senate. And once passed by one chamber, it would become a privileged piece of legislation in the other chamber. This mean it has to get a vote within 18 days, and you can’t have a filibuster in the Senate. This is why Mitch McConnell will need to schedule a vote on the termination resolution introduced by Representative Castro shortly after the House passes it. No doubt, McConnell would prefer simply not to put the measure on the calendar, so members of his caucus don’t need to take a tough vote. (This is what he did with various measures that the House passed in January attempting to reopen the government.)

As envisioned, that would be the end of the process: House and Senate pass a resolution saying there is no emergency, and the emergency disappears. There is a pretty good logic to that. The purse belongs to Congress, so a bare majority of Congress gets to claw the money back if it wants to. It would be relatively easy for Congress to assert its spending authority.

But that’s not the world we live in. This brings us to a 1982 Supreme Court Case I had never heard of, called INS v. Chadha. The basics of this case are as follows. It concerned the 1965 Immigration and Nationality Act (INA). This Act had a provision in which Congress authorized the Attorney General to suspend an otherwise lawful deportation if he wanted to do so. However, there was also a provision in this law allowing either chamber of Congress to nullify the Attorney General’s choice with a majority vote.

This is what happened with a fellow named Jagdish Rai Chadha. He was set to be deported, and the AG suspended the deportation. But then the House passed a resolution vetoing the suspension. The case wound up in the Supreme Court on the idea that the part of the INA allowing either chamber to veto the AG’s decision was unconstitutional. In a 7-2 decision, the Court agreed. Basically, they held that all congressional legislation has to go through a standard legislative process. In particular, it needs to be presented to the president, who has an opportunity to veto it.

The INS v. Chadha decision altered the provision of the National Emergencies Act I describe above. Now, after you get your majority in both chambers, the termination of emergency power goes to the president, and he can veto it. You can only override the veto with the standard 2/3 majority in both chambers.

This makes all the difference in the world for our present conundrum. If majorities in both chambers were all that was required to claw back the wall money, it would probably happen. (A majority in the Senate is uncertain, but several Republican senators seem ready to support termination.) But a veto-proof majority is a much taller order.

Was INS v. Chadha correctly decided? A key part of the decision focuses on a particular provision of Article 1, Section 7 of the Constitution, which says:

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill. [emphasis added in the SCOTUS holding]

(There’s another part of the holding dealing with the circumstance that only one chamber is acting, which was relevant for Chadha. But the part above is the key thing for the National Emergencies Act.)

I concede that that seems pretty airtight. Every order resolution or vote means every order resolution or vote.

Still, I’m not sure the Court fully comprehended what that interpretation means for the fundamental relationship between Congress and the executive branch. It seems entirely consistent with the founders’ vision for how Congress and the president would relate to each other that Congress could turn over some of its core competency to the president, while also constructing a non-standard procedure that makes sure it can pull the competency back if necessary. To invoke a metaphor, they can give the president a toy, but also can take it back whenever they want. The arrangement imposed by Chadha is more like a ratchet that moves in one direction. Once authority has surrendered to the president, the president can veto attempts to take it back, so it’s very difficult to do.

Chadha’s applicability to the NEA seems especially perverse, since the case was decided well after the National Emergencies Act was passed. Congress didn’t know just how much authority it was surrendering.

It also bears note that there are some important differences between the Immigration Act relevant for Chadha and the National Emergencies Act. The Immigration Act invested just one chamber of Congress with special prerogative. The NEA required both. Also, the Immigration Act focused on law enforcement (a canonical executive power), whereas the NEA is about spending authority (as I note above, quintessentially the legislative domain). Not being a lawyer, I have little sense of whether either of these differences open up avenues for challenging Chadha’s applicability here.

A tenet of logic is that, if you have an absurd conclusion, you must have had an absurd premise. The notion that a president, on a whim, could purloin one of Congress’s core competencies, even as majorities in both chambers object, seems patently at odds with the basic logic of the American constitutional order. So maybe it’s time to revisit the reasoning that got us here.

After I wrote this, I realized that real lawyers with better knowledge of constitutional law, of course, have their own takes. Here is Richard Pildes and Elie Mystal.