united-states emergencies
What constitutional laws support a leader overriding his Congress?
<p>In other words, what thoughts regarding freedoms and rights from the founders of a nation support a leader taking supreme power over its Congress?</p>

<p>I guess I'm asking, what's the point of having a law-making body and a judicial body, if there are laws allowing a single person to overrule both?</p>

<p>But more than that, I'd like to find out what the exact laws are.</p>

<p>What I've tried: look for similar questions, like <a href="https://law.stackexchange.com/questions/40989/what-if-the-president-defies-congress-and-the-courts">this</a>. But that question is in fact many questions rolled into one, and the answers do not directly address my more fundamental one.</p>

<p>Isn't the executive branch supposed to just execute? I.e. Execute the bills proposed by the party he represents, as supported by that party's allies? (I realize of course that this is a challenge with only two parties. With only two, both are more or less bound to never negotiate; never agree with the other's bills.)</p>

<p>Addition from comments (thanks Putvi): </p>

<p>I'm actually <em>not</em> asking specifically about Trump and recent events, simply because I expect there to be well-established laws in the constitution that support this, and I don't know which they are. I'm asking for the United States, though, and there are many <a href="https://en.wikipedia.org/wiki/List_of_national_emergencies_in_the_United_States" rel="nofollow noreferrer">still in effect</a>.</p>

<p><a href="https://en.wikipedia.org/wiki/State_of_emergency" rel="nofollow noreferrer">It's not the only country</a>, I guess I'm trying to get to grips with how the Congress wouldn't immediately support an actual emergency if one is evident. Surely it would? And how a law that lets a leader declare one himself came about.</p>

<p>I've looked some more. This is all the same question in my mind, but to be the most specific I can be: For the U.S., how does the <a href="https://en.wikipedia.org/wiki/National_Emergencies_Act" rel="nofollow noreferrer">1976 law</a> override or amend the constitution? (As in: this law could have been passed for something that was needed then, but wasn't before and isn't now.)</p>

<p>After two edits, I've made it as specific as I can. I hope you can answer, I'm new here :)</p>

<blockquote>
  <p>In other words, what thoughts regarding freedoms and rights from the
  founders of a nation support a leader taking supreme power over its
  Congress?</p>
</blockquote>

<p>Generally speaking, one doesn't take "supreme power over Congress", one instead, disregards laws duly enacted by Congress or express mandates of the Constitution, including those related to cooperation with Congress.</p>

<p>The most notable recognized deviations from Congressional direction that are recognized (at least by some people) are:</p>

<ul>
<li><p>The authority of the President to direct the military as commander-in-chief, and to a lesser extent, to conduct foreign policy. U.S. Constitution, Article II, Section 2. This power is balanced with the power of Congress to declare war and regulate the military via the <a href="https://en.wikipedia.org/wiki/War_Powers_Resolution" rel="nofollow noreferrer">War Powers Resolution of 1973</a> which has never really been tested in a "when push comes to shove" kind of way so far. The War Powers Resolution (a.k.a. the War Powers Act) requires the President to seek Congressional approval for new conflicts that arise that could become wars and predominantly Presidents have done so without necessarily acknowledging that they are obligated in a constitutionally valid way to do so.</p></li>
<li><p>The closely related power to unilaterally employ military force to ensure a Republican form of government or to respond to an invasion or insurrection or at the request of a governor, "domestic violence" without Congressional authorization. U.S. Constitution, Article IV, Section 4. </p></li>
</ul>

<blockquote>
  <p>The United States shall guarantee to every state in this union a
  republican form of government, and shall protect each of them against
  invasion; and on application of the legislature, or of the executive
  (when the legislature cannot be convened) against domestic violence.</p>
</blockquote>

<p>Related to this is the power to suspend the writ of habeas corpus. U.S. Constitution, Article I, Section 9:</p>

<blockquote>
  <p>The privilege of the writ of habeas corpus shall not be suspended,
  unless when in cases of rebellion or invasion the public safety may
  require it.</p>
</blockquote>

<p>In practice, however, this theoretically unilateral power of the President has never been very meaningful, because no President has ever sought to invoke it in circumstances in which he didn't already have solid and prompt legislative support from Congress.</p>

<p>For example, the suspension of habeas corpus by President Lincoln during the U.S. Civil War was backed by legislation from Congress, the Habeas Corpus Suspension Act of 1863.</p>

<p>But, the emergency power to limit the right of habeas corpus has been significantly restricted by <a href="https://en.wikipedia.org/wiki/Habeas_Corpus_Suspension_Act_(1863)" rel="nofollow noreferrer">U.S. Supreme Court case law</a>: </p>

<blockquote>
  <p>In <em>ex parte Milligan</em>, the United States Supreme Court held that the
  Habeas Corpus Suspension Act [of 1863] did not authorize military
  tribunals, that as a matter of constitutional law the suspension of
  habeas corpus did not itself authorize trial by military tribunals,
  and that neither the Act nor the laws of war permitted the imposition
  of martial law where civilian courts were open and operating
  unimpeded.</p>
</blockquote>

<p>The emergency powers of the President to use the military domestically are also limited by the <a href="https://en.wikipedia.org/wiki/Posse_Comitatus_Act" rel="nofollow noreferrer">Posse Comitatus Act</a> and related legislation, which prohibits the use of the military to enforce civilian laws domestically in most circumstances, absent an invasion or insurrection.</p>

<ul>
<li><p>The authority to pardon someone who has violated the law. U.S. Constitution, Article II, Section 2.</p></li>
<li><p>The authority to veto legislation subject to Congressional override. U.S. Constitution, Article I, Section 7.</p></li>
<li><p>The authority to not spend all funds that are authorized by Congress for a purposes that are not entitlements. This is implied in case law subject to limitations in a 1974 Act of Congress. This is called "<a href="https://en.wikipedia.org/wiki/Impoundment_of_appropriated_funds" rel="nofollow noreferrer">impoundment of appropriated funds</a>." But, one of the strongest limitations on Presidential power is that the President may not spend any money not appropriated by law by Congress. The President can constitutionally spend less than is appropriated by Congress, subject to the Impoundment Act of 1974, but not more. Since the Constitution prohibits many kinds of long term binding contracts and prospective appropriations that would bind future Congresses (except for the Naval contracts), <em>see</em> U.S. Constitution, Article I, this leaves the President on a fairly short leash and fairly accountable to Congress.</p></li>
<li><p>The authority to exercise discretion in not fully enforcing all violations of the law. This is implied in case law, especially, the law of prosecutorial discretion. The prosecutor's broad discretion in such areas as initiating or foregoing prosecutions, selecting or recommending specific charges, and terminating prosecutions by accepting guilty pleas has been recognized on numerous occasions by the courts. <em>See, e.g., United States v. LaBonte</em>, 520 U.S. 751, 762 (1997); <em>Oyler v. Boles</em>, 368 U.S. 448 (1962);  <em>United States v. Fokker Services B.V.</em>, 818 F.3d 733, 741 (D.C. Cir. 2016); <em>Newman v. United States</em>, 382 F.2d 479 (D.C. Cir. 1967); <em>Powell v. Ratzenbach</em>, 359 F.2d 234 (D.C. Cir. 1965). This discretion exists by virtue of the prosecutor's status as a member of the Executive Branch, and the President's responsibility under the Constitution to ensure that the laws of the United States be "faithfully executed." U.S. Constitution, Article II § 3. <em>See Nader v. Saxbe</em>, 497 F.2d 676, 679 n. 18 (D.C. Cir. 1974). Complete executive branch control of prosecutorial discretion, however, has been limited by the creation of independent agencies within the federal government and by the enactment of laws authorizing the appointment of a special prosecutor, like Robert Mueller, in cases where there is a risk of a conflict of interest from the President.</p></li>
<li><p>The authority to refrain from enforcing laws determined to be unconstitutional when that determination is not contrary to the controlling judicial branch ruling. This is implied in case law and in the duty to faithfully execute the constitution. U.S. Constitution, Article II, Section 1. This is closely related to prosecutorial discretion.</p></li>
<li><p>Sovereign immunity as applied to executive branch officials including the President, is mostly a product of case law although it has some statutory acknowledgement in relatively pedestrian claims like lawsuits for ordinary tort liability against the United States seeking money damages which must usually be brought in the U.S. Court of Claims, if they are allowed at all (with an important exception established in the <em><a href="https://en.wikipedia.org/wiki/Bivens_v._Six_Unknown_Named_Agents" rel="nofollow noreferrer">Bivens</a></em> case).</p></li>
<li><p>Case law has also recognized an "<a href="https://en.wikipedia.org/wiki/Executive_privilege" rel="nofollow noreferrer">executive privilege</a>" against forced disclosure of certain information by the executive branch although the scope of this privilege, which arises only from case law, is disputed. Only a handful of cases have addressed this, the most famous of which is <em>United States v. Nixon</em> discussed at the link.</p></li>
<li><p>There is also an unanswered question regarding when, if ever, a President's actions are clear and intentional violations of the law, and yet still might not constitute impeachable offenses set forth in U.S. Constitution, Article II, Section 4, or what remedies are available when an impeachable offense is committed but Congress is unwilling or unable (perhaps due to Presidential action) to conduct impeachment proceedings.</p></li>
</ul>

<p>Other than these circumstances, the U.S. Constitution does not contemplate that the President has emergency powers of any kind. There are few precedents in which the President has defied the law and the will of Congress more generally based upon a claim of emergency powers.</p>

<p>The emergency powers of the President, in particular, and government, in general, are qualitatively and quantitatively, different from <a href="https://en.wikipedia.org/wiki/State_of_emergency" rel="nofollow noreferrer">emergency powers in most other countries</a>, which are, generally speaking, more expansive and have more formal recognition in the governing documents and laws of the countries in question.</p>

<p>For example, while a bipartisan coalition in the U.K. suspended elections during World War II, the United States has never, ever, under any circumstances suspended an election (except during the U.S. Civil War in the Confederate States, where the Confederacy that was the <em>de facto</em> regime there held its own elections instead).</p>

<p><em>Specific Legislation</em></p>

<p>Despite its name, the <a href="https://en.wikipedia.org/wiki/National_Emergencies_Act" rel="nofollow noreferrer">National Emergencies Act of 1976</a>, doesn't really address the question. </p>

<p>Analytically, this is just a law authorizing the President to do certain things under certain circumstances, just like any other law, and not a law that gives the President "supreme power over Congress". </p>

<p>It is more like the laws governing disaster relief, which authorize the President, subject to specific criteria, to determine that a situation is a national disaster, upon which determination certain federal assistance is authorized. </p>

<p>This is why, even though scores of "emergencies" have been declared, many of which are still in force, they don't feel, to the general public, like "emergencies."</p>

<p>To the extent that the National Emergencies Act purports to go further, in ways not expressly authorized by the U.S. Constitution, it is an unconstitutional violation of the <a href="https://en.wikipedia.org/wiki/Nondelegation_doctrine" rel="nofollow noreferrer">non-delegation doctrine</a> and isn't a valid law. So, for example, Congress cannot delegate all of its law making power to the President via regulations. The Supreme Court ruled in <em>J. W. Hampton, Jr. &amp; Co. v. United States</em> (1928) that: </p>

<blockquote>
  <p>"In determining what Congress may do in seeking assistance from
  another branch, the extent and character of that assistance must be
  fixed according to common sense and the inherent necessities of the
  government co-ordination." So long as Congress "shall lay down by
  legislative act an intelligible principle to which the person or body
  authorized to [exercise the delegated authority] is directed to
  conform, such legislative action is not a forbidden delegation of
  legislative power."</p>
</blockquote>

<p>For example, Congress is not constitutionally permitted to give the President line item veto power. <em>Clinton v. City of New York</em> (U.S. 1996).</p>

<blockquote>
  <p>Isn't the executive branch supposed to just execute? I.e. Execute the
  bills proposed by the party he represents, as supported by that
  party's allies?</p>
</blockquote>

<p>The Executive branch is supposed to "execute" although it has considerable discretion in how it does so and has some express instances of unilateral power like the veto power and the pardon power.</p>

<p>But, the Executive branch is supposed to "execute" <strong>the laws enacted by Congress</strong>, not "the bills proposed by the party he represents, as supported by that party's allies." </p>

<p>From a legal and constitutional perspective, until a bill is passed by Congress and duly enacted as a law, the Executive branch not only can, but must, ignore them, in any capacity other than as one more lobbyist before Congress among others, on a hypothetically equal footing as everyone else (except that the President has the veto power and the VP can cast tie votes in the Senate, per Article I of the U.S. Constitution).</p>

<p>The point is that one branch rules over two others, but that three branches are seperate but equal and that each one has powers that can limit the other two branches and are themselves limited by the other two branches as equally.</p>

<p>The typical simplified version of the U.S. Government is that Congress makes the rules (Murder is illegal) the Executive enforces the rules (Arrests Murderers) and The Judiciary interprets the rules (Did the executive enforce rules as written by Congress?).</p>

<p>Let's say Congress passes a law that we can debate should be a law (I.E. Jellybeans are illegal.  Anyone with jellybeans in their possesion shall be put to death).  The President (or other executive, such as a Governor can veto the law, basically saying "I'm not doing that".  Perhaps the executive is famously an addict of the Jelly Beans, to the point that he inspired his choice brand to make a flavor dedicated to him and has his portrait hanging in the lobby of the Factory Tour... done entirely in their Jelly Beans).  He vetoes it and passes it back to Congress, and congress vetoes the veto.   Now the president has to enforce the law, and is forced to arrest the CEO of the Beloved Jelly Bean company...  Who then fights back, claiming that the law is unconstional (For a host of reasons... such as Freedom of Speech... cause you have the right to make and eat candy you enjoy or Ninth Amendment uninnumerate rights (Basically after writing 8 Amendments, the founding fathers were getting tired and said, "Screw it, unless we specifically said Congress can do something, they can't do it and it's a right of the people or the state.").  Then the Courts get to fight about it until the decide what, if any part of the no-jelly bean law is unconstitutional.</p>

<p>And of course, if the pro-Jelly Bean President doesn't like the ruling, he can start filling courts with Pro-Jelly Bean judges and congress can advise and consent to having them placed onto courts or not.</p>

<p>There are a few other procedures in everyone's arsenal, but no one branch can overpower the other two without recourse actions from those branches.   The founding fathers never trusted government entirely, but the couldn't live without it either... So they basically built it to be so busy fighting itself that it would not be focused well enough to change policies in the heat of the moment, but after long, long fights between 545 people of alleged intelligence (435 in the House, 100 in the Senate, 9 on the Supreme Court, 1 in the Presidency).</p>
