by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Andrew McCarthy of National Review Online regrets using the word “stupid” during a television interview to describe laws that allow the overuse of presidential emergency powers. Yet his latest column explains why he believes the situation is plagued with problems.
What I regard as foolish and contradictory of our constitutional system is the existence of an array of laws that vest the president with apparently unreviewable power to take drastic executive action that is not only in the nature of legislation but that may override congressional law.
Because the president in the current instance is Trump, the commentariat is suddenly exercised, but this is a longstanding problem. Obama had his pen and phone, of course, and decided an emergency — namely, Congress’s refusal to do what he wanted — required an executive rewrite of immigration law. Meanwhile, although the Republican-controlled Congress did not want him to suspend Iran sanctions, the sanctions Congress had enacted authorized the president unilaterally to suspend them. Many in Congress do not like Trump’s imposition of tariffs, but, again, Congress has given the president carte blanche — and, as was the case with Iran sanctions, Congress lacks the votes to repeal the authority delegated to the executive.
To be clear, I do not believe all such laws are bad. Even in modern America, where Congress is often in session and could convene within a day if there were a real emergency, it is easy to imagine sudden crisis situations requiring swift, decisive presidential action. Nevertheless, it is Congress’s job to make law when we need law; the president should be executing Congress’s legislation, not pronouncing his own. The president should be coming to Congress asking for emergency authority, which would require convincing Congress that there actually was an emergency. The president should not presumptively be permitted to skip that step.