There has been much debate about President Trump’s declaration of a national emergency on our southern border. Critics complain either that no real emergency exists and/or that Trump’s actions are unconstitutional. Too often, how one feels about the issue of immigration shades one’s view of the declaration. Open borders advocates detest it and condemn the declaration, but those in favor of less immigration generally like it.
No matter where one comes down on this immigration issue, anyone holding any loyalty to our written Constitution should decry the National Emergencies Act itself. In declaring the emergency, Trump specifically relied on “sections 201 and 301 of the National Emergencies Act.” In 1976, Congress granted to the president the authority to declare an emergency and to invoke “special or extraordinary power[s].”
A careful study of Article II of the Constitution, which sets forth the president’s authority, mentions nothing about special or extraordinary powers outside of the instrument. Similarly, Article I, which deals with congressional authority, does not allow Congress to delegate power to the president nor does it grant Congress (or any other branch) special or extraordinary powers outside of those powers specifically enumerated. “The powers of the federal government,” Madison explained in the Virginia ratifying convention, “are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction.”
