Why Trump’s National Emergency is Congress-Proof—At Least for Now

Our country does some stupid things. Consider the case of Jagdish Rai Chadha. Based on his unique circumstances, do you think it was necessary to deport him?

Respondent Jagdish Rai Chadha was born in the British colony of Kenya to Indian parents. Chadha was a Citizen of the United Kingdom and Colonies and entered the United States on a British passport when studying in Ohio as a foreign exchange student. After Kenya’s declaration of independence from Britain in 1963 he was not recognized as a legitimate citizen or resident of Kenya (as his parents were Indian) or India (as he was born in Kenya). Furthermore, his right of abode in the United Kingdom was stripped under the Immigration Act 1971 due to his lack of connection with the United Kingdom. After his non-immigrant student visa expired in 1972, none of the three countries would accept him onto their territory, rendering him de facto stateless.

The Immigration and Naturalization Service (INS) dutifully moved to deport Mr. Chadha because they were required to do so under the Immigration and Nationality Act of 1965. But there was a provision of the law that allowed them to suspend the deportation provided that they notified Congress, which they did. For some reason, the House of Representatives did not approve of this decision and exercised a legislative veto reversing the suspension. Mr. Chadha would have to be deported into the ether after all.

This controversy formed the basis of a 1983 Supreme Court case called Immigration and Naturalization Service v. Chadha. The case is relevant today because it stripped Congress of the right to exercise legislative vetoes, including unicameral vetoes like the one the House of Representatives used to complicate Mr Chadha’s life. The SCOTUS ruled that when Congress acts in a legislative manner, they must abide by the Constitution’s provisions for legislative behavior, and that means that both chambers must act in concert and that the president may sign or veto whatever they produce.

This explains why Donald Trump can veto any resolution Congress passes annulling his ridiculous national emergency. In 1985, in response to the Chadha ruling, Congress amended the National Emergencies Act to provide for a Joint (Bicameral) Resolution process that can be invoked to terminate a declared emergency. However, such a resolution required a presidential signature. As with other legislation, it is possible for Congress to override an executive branch veto if each chamber produces a two-thirds majority.

It is now apparent that Congress will indeed pass a joint resolution terminating Trump’s border emergency. The House moved to do so last week and the Senate will follow next week. So far, there is no sign that there will be enough votes to override Trump’s veto, however, even though the Senate might be almost there.

Rather than face this fiasco, the Senate Republicans are casting around wildly for alternative solutions and attempting with increasing urgency to convince Trump to simply back down rather than force their divisions out into the open. Senator Roy Blunt of Missouri, the chairman of the Rules Committee, made reference to the Chadra case during a recent caucus meeting.

Sen. Roy Blunt (R-Mo.), a member of GOP leadership, said he had not yet decided how he was going to vote and that he was waiting to see “what our other options are.”…

…Blunt noted that he brought up during a caucus lunch that Congress might have “overreacted” to a Supreme Court ruling in the 1980s, after which they added the requirement that a president must sign the bill and could also veto it.

It’s not really clear to me how Congress “overreacted.” The Court held that bicameralism (both legislative chambers acting in concert) and presentment (presidential signature or veto) were requirements for Congress to act in a legislative manner. It held that Congress acted in a legislative manner when it modified the rights and duties of people serving outside of the legislative branch.

Perhaps Sen. Blunt thinks Congress can convince the Supreme Court that annulling a presidential emergency deceleration doesn’t modify the rights and duties of the president, but there was a solid reason for Congress to amend the Immigration and Nationality Act. They believed that they were constitutionally required to do so.

For now, at least, the president can and almost certainly will veto Congress’s joint resolution, assuming that they can’t get him to back down and unilaterally rescind his emergency declaration.

As for Jagdish Rai Chadha, he was not deported. He became a U.S. citizen, and as of October 2015, he was living in Albany, California. As far as I know, he hasn’t represented any threat to our national security. It makes me wonder why the House of Representatives was so keen on seeing him deported in the first place.

 

Martin Longman

Martin Longman is the web editor for the Washington Monthly and the main blogger at Booman Tribune.