As President Trump delivered a weekend salvo in the ongoing shutdown battle, White House aides reminded reporters that the president remains convinced of his “legal authority to declare a national emergency at the border, which could allow him to redirect Pentagon funding to a build a border wall.” The flacks’ messaging was clear: If congressional Democrats turn a deaf ear to Trump’s latest proposal, then the president retains recourse to his emergency powers.

In a thoughtful post earlier this month, my colleague Gene Healy explained that Trump’s threats are far from idle, and that the Congress bears much of the blame for this bizarre scenario whereby the president can win domestic policy priorities by declaring an ad hoc emergency. Gene pointed to “at least two provisions of the U.S. Code passed during the 1980s, 33 USC § 2293  and 10 USC § 2808,” that plausibly empower Trump to fund a border wall if he declares a national emergency.

Disconcertingly, these were only two out of more than a hundred delegations of emergency powers to the president! Returning to Gene’s post: 

[T]he U.S. Code today [is] honeycombed with overbroad delegations of emergency power to the executive branch. A Brennan Center report released last month identifies 136 statutory powers the president can invoke in a declared national emergency. Few of these provisions require anything more than the president’s signature on the emergency declaration to trigger his new powers—“stroke of the pen, law of the land—kinda cool,” in the Clinton-era phrase. 

Worse yet, the president’s statutory powers aren’t limited to putative national emergencies; instead, there are many and diverse congressional delegations of law-making power directly to the president. For example, through the Antiquities Act, the president can regulate millions of acres of public lands with a brief proclamation. Under trade statutes, the president can impose tariffs backed by little more reasoning than his signature. Prof. Kevin Stack provides other examples in this excellent article.

Gene’s post spotlighted Congress’s complicity to the dangerous accumulation of direct statutory authority in the president’s hands. But Congress isn’t the only branch of government to blame; the judiciary is a co-enabler of executive excess.

Out of undue solicitude for the office of the presidency, the Supreme Court has abandoned substantive review of presidential decision-making pursuant to overbroad delegations of congressional authority. The upshot is that courts won’t scrutinize the president’s decision that a “national emergency” exists. Nor will courts perform a meaningful inquiry of the relationship between the putative national emergency and the border wall. That is, they won’t question if the wall is a reasonable policy to mitigate the supposed national emergency.

Instead, courts would perform a superficial “facial” review of the president’s declaration pursuant to Congress’s broad delegation of “emergency” powers, bending over backwards to accommodate the executive. It’s deference squared.

This ultra-permissive judicial review stands in stark contrast to how Article III courts review exercises of congressional delegations by all other actors in the Executive Branch. Under the Administrative Procedure Act (APA) 5 U.S.C. § 706, all “agency action” is subject to judicial review to ensure that the agency’s lawmaking is not “arbitrary or capricious.” As interpreted by the Supreme Court, this provision requires courts to take a “hard look” at the reasonableness of an agency’s reasoning and decision-making.

In a seminal 1992 case, Franklin v. Massachusetts, the Supreme Court held that the president is not an “agency” under the APA. Unfortunately, the Franklin Court did not explain its reasoning, other than citing “respect for the separation of powers and the unique constitutional position of the President.” As observed by Prof. Kathryn Kovacs, this crucial question was neither briefed nor broached during oral argument. 

This absence of consideration is reflected by the weakness of Franklin’s legal reasoning.

Looking to the text of the APA, there seems to be ample evidence that the statute contemplates searching review of the president’s statutory powers. As I noted above, all “agency action” is subject to a “hard look” under the APA. In 5 U.S.C. § 701(b)(1), the APA defines “agency” as “each authority of the Government of the United States,” but it expressly does not include “the Congress” or “the courts of the United States.” It wouldn’t make sense for the Congress to explicitly exclude two of the three branches of government from judicial review under the APA, but, at the same time, to implicitly exclude the third branch of government.

There’s another textual clue that a president’s statutory powers should be subject to judicial review under the APA. In 5 U.S.C. § 701(a)(2), the APA precludes from hard look review “agency action [that] is committed to agency discretion by law.” In this context, “law” refers to “the common law’ of judicial review of agency action,” and included in this body of jurisprudence are such non-justiciability principles as the “political questions” doctrine. In turn, the political question doctrine allows courts to decline to take on controversies whose solution is better left to the political branches. Simply put, there’s no reason for the APA to account for the political question doctrine if presidents are not considered “agencies” whose actions are subject to “hard look” review under the APA.

There are also policy reasons why the president should be considered an “agency.” In many instances, the president’s statutory powers mirror policymaking authority possessed by administrative agencies. Consider, for example, the Antiquities Act, which authorizes the president to regulate public land to the same ends as can be achieved by the Interior Department pursuant to the Federal Land Policy and Management Act. The difference is that the Interior Department must submit to procedural safeguards and meaningful judicial review before it can regulate millions of acres of public land, while the president can achieve the same results with a stroke of the pen and meaningless judicial oversight.

Regardless whether the Court thought through what it was doing, the Franklin decision added a perverse complement to a president’s statutory powers. On the one hand, the president enjoys vague and therefore sweeping delegations of statutory authority. On the other, he escapes meaningful judicial review when exercising these overbroad delegations. It’s a toxic mix that permits the president to gin up bogus emergencies to achieve major domestic policy priorities. (Imagine President Elizabeth Warren’s Green New Deal in response to a climate-change “emergency.”)

In sum, Gene is absolutely right to endorse calls on Congress to “shore up the guardrails of liberal democracy” with comprehensive reform of the president’s statutory powers. To the same end, it’s also well past time for the Supreme Court to revisit Franklin v. Massachusetts.