Most of the discussion of President Trump’s proclamation of a national emergency has been focused on whether any emergency exists at the border and whether or by what standard the courts can review the existence of a national emergency. That raises issues of the scope of the president’s executive power under Article II of the Constitution that have never been considered or decided by the federal courts. The leading Supreme Court decision on presidential emergency power, Youngstown Sheet & Tube Corp. v. Sawyer, assumed that President Truman’s declaration of national emergency at the start of the Korean War was in effect. It held that the emergency did not give the president the power to seize the steel industry, in order to forestall a strike, when Congress had explicitly denied that power and enacted a less intrusive alternative when it passed the Taft-Hartley Act. The most influential aspect of Youngstown, Justice Jackson’s concurrence, postulates a three-level hierarchy of emergency powers under Article II: when the president’s action exercises power delegated by Congress (as was the case in Trump v. Hawaii), when Congress is silent, and when presidential action conflicts with Congress. In the last case, wrote Jackson, presidential emergency power is at its lowest ebb. If the Supreme Court follows Jackson, it may well conclude that the current proclamation does not authorize the president to spend to build border barriers beyond what Congress has already appropriated for that purpose.

The 1976 National Emergencies Act uses Jackson’s Youngstown hierarchy to confine the president’s emergency powers. It provides, first, that any declaration of national emergency must specify pre-existing statutes that grant emergency power, and then that only the emergency powers in the specified statutes may be exercised. 50 U.S.C. § 1631. Thus the act both grants emergency power in the incorporated statutes and denies emergency power beyond them. Any attempt to exercise broader powers would conflict with Congress’s expressed will.

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