William C. Banks Discusses Limits to Emergency Powers with LA Times

Supreme Court has placed limits on presidential emergency powers, but that may not stop Trump

(Los Angeles Times | Jan. 9, 2019) More than a half century ago, the Supreme Court in one of its most famous decisions boldly put a check on executive power, one that has been cited repeatedly as proof the president cannot declare a national emergency to bypass Congress.

“Factually it is ludicrous to claim this is a national emergency, but who would have standing to challenge it?”

Many legal experts, however, say they are not confident the Constitution and the courts would stand in the way if President Trump were to declare a national emergency to fund a wall on the southern border. At issue is not the definition of an emergency, but the many expansions of presidential power written into law by Congress in recent decades.

When President Truman issued an order to seize control of the steel mills, no one questioned that the nation faced a true emergency. American troops had been pushed back in Korea, and a pending strike in the steel industry “would immediately jeopardize and imperil our national defense” and endanger “our soldiers, sailors and airmen engaged in combat in the field,” he declared in 1952.

But the high court stood firm and ruled the president did not have the power, acting on his own, to order the steel mills to keep running …

… Moreover, bringing a lawsuit in court requires an injured plaintiff who has standing. And the court has ruled that neither lawmakers nor taxpayers have standing to sue over how the government spends money.

“Factually it is ludicrous to claim this is a national emergency, but who would have standing to challenge it?” said Syracuse law professor William Banks. “It could be a property owner who says his land has been diminished in value.” If so, however, such a case may take time to develop.

It is not clear that the Supreme Court will be willing to take up such a dispute or stand in the way of the president.

In 1952, all the justices were Democratic appointees, but the 6-3 majority rebuked the actions of a Democratic president.

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