“The Article One Act”-James Wilson Fellow Alumnus Joel Nolette ’18

In an essay for the Federalist Society, Joel Nolette calls for bipartisan support of Senator Mike Lee’s Article One Act that would limit presidential discretion in declaring a national emergency. Senator Mike Lee’s bill in the Senate, and Representative Chip Roy’s concurrent bill in the House would reinstate the legislative branch’s ability to check a president’s declaration of national emergency by requiring a “joint resolution of approval” to warrant its extension past 30 days. Irrespective of one’s political affiliation, Nolette argues that President Trump’s declaration of a national emergency establishes a threat to the separation of powers. Nolette places the brunt of the blame on legislators’ long history of strengthening executive power during a national emergency, via the National Emergencies Act.

Excerpts from the piece:

“Counting by news cycles, it seems like ages ago, but on March 12, Senator Lee spearheaded a common-sense bill aiming to claw back legislative power that Congress previously ceded to the Executive Branch. Representative Chip Roy of Texas followed suit, introducing a companion bill in the House that seeks the same ends. Both chambers of Congress should take up the proposal to reduce the President’s discretion to make public policy by national emergency.”

“The political moment precipitating this bill was, of course, the President’s invocation of the National Emergencies Act to free up funds for some more bollard fencing on the southern border. This declaration followed from Congress’s decision in the February spending bill to appropriate only a fraction of the amount the President requested for “the wall.” But politics aside, the President’s ability to spend money Congress never truly appropriated in order to advance an agenda without proper legislative approval is a worrisome distortion of the constitutional allocation of powers.”

“As Justice Kennedy wrote in Clinton v. New York, individual “liberty is threatened” when “the decision to spend” is “determined by the Executive alone, without adequate control by the citizen’s Representatives in Congress.” At present, south Texas landowners no doubt can relate.”

“The law would amend the National Emergencies Act by putting a thirty-day cap on the duration of a presidentially-declared emergency absent a “joint resolution of approval” from Congress to extend the period. Absent such a resolution, and the unilaterally-declared emergency automatically expires, along with the President’s ability to wield “special or extraordinary power” during the emergency.”

Read the whole essay here.