The House of Representatives voted 245-182 on Tuesday to overturn President Trump’s national emergency declaration to fund his long-promised border wall.^[1] This is the latest of several efforts by Congress to rescind executive action via joint resolutions of disapproval. Last year, Congress tried to rein in executive overreach through unsuccessful attempts to amend Section 232 of the Trade Expansion Act of 1962,^[2] responsible for tariffs on imported steel and aluminum.^[3] Congress also used the Congressional Review Act (CRA),^[4] which uses a joint resolution, sixteen times at the beginning of the Trump Administration to reverse Obama-era regulations.^[5] Congress had only used the CRA once in the previous twenty years of the law’s existence. Joint resolution mechanisms are appealing because they reduce the likelihood that congressional politics undermines legitimate action.

But these mechanisms rarely succeed unless they are targeted at a previous administration because a President is almost certain to veto an attempt to rescind actions by his own administration.^[6] Ideally, Congress would retain its own authority to decide when to divert money to an emergency or impose tariffs to protect national security. But that has proven an unrealistic goal, so Congress should instead shift its preferred mechanism for restricting executive overreach away from an option for disapproval towards a requirement for approval. James Madison wrote in Federalist 51, his famous essay on the separation of powers, that “[a]mbition must be made to counteract ambition.”^[7] Congress must now regain its ambition to make the United States government one that is “oblige[d] to control itself.”^[8]

Joint resolutions of disapproval do not work because they require the President’s signature. At one point in time, Congress would have been able to structure these laws as a legislative veto to reject administrative action without requiring the President’s signature. But the Supreme Court declared this procedure unconstitutional in 1983. In INS v. Chadha, the Court held that a provision of immigration law that allowed the House of Representatives to override determinations made by the Attorney General violated constitutional requirements that bills and resolutions must gain a majority in both chambers of Congress and be presented to the President for signature.^[9] While a joint resolution of disapproval structured as a legislative veto does not contain bicameralism issues, the presentation clause requires Congress to risk a presidential veto in order to create law.^[10] To be sure, Congress can override a presidential veto with a two-thirds vote by both chambers. But this would limit the role of Congress in challenging the president’s action to extraordinary circumstances. Such a limited ability to challenge the President may be appealing because it requires bipartisan support, but the uncertainty created by a process with an indefinite number of final actions imposes avoidable costs.^[11]

Instead, Congress should require itself to hold a fast-tracked vote on approval of executive branch determinations. The President would submit the national emergency declaration, for example, to Congress, which would then have a limited amount of time to vote on the bill and send it to the President for final approval. Trade Promotion Authority currently uses a similar approach for negotiating free trade agreements.^[12] After the executive branch concludes a trade agreement with another country, it submits the text to Congress, which has a limited amount of time to vote on implementing legislation.^[13] The proposed Bicameral Congressional Trade Authority Act also uses this approach to restrict executive authority under Section 232.^[14] The bill requires the President to submit his determination that the investigated imports threaten national security and the proposed remedy to Congress, which has sixty days to authorize implementation. The bill also clears procedural hurdles to a vote by automatically discharging the proposal from committee after ten days and waiving all points of order against motions to proceed to consider the proposal.^[15] This mechanism involves Congress closely in the interpretation and implementation of the Article I authority that it has delegated to the executive branch.

One downside of requiring Congress to pass joint resolutions of approvals for executive action to take effect is that an incumbent President may weaponize it against a member of Congress running in opposition. For example, an incumbent President could start a Section 232 investigation to force a Republican member of Congress branded as both a “free trader” and a “defense hawk” to put a vote on the record in an election year that forces a conflict between imposing tariffs and acknowledging a threat to national security. But being in Congress requires “ambition” to limit exercise of authority delegated to the executive branch. Congress should require itself to make hard decisions instead of restricting itself to the ineffective mechanism of disapproval resolutions.

 

[1] The National Emergencies Act of 1976 allows Congress to terminate any national emergency declaration through a joint resolution of disapproval. 50 U.S.C. § 1622(a)(1) (2018).

[2] 19 U.S.C. § 1862 (2018).

[3] Section 232 currently contains a provision allowing Congress to nullify tariffs on petroleum imports using a procedure similar to the CRA. 19 U.S.C. § 1862(f) (2018). A bill sponsored by Senator Portman would expand this subsection to include all action under Section 232. Trade Security Act of 2019, S.365, 116th Cong. (introduced Feb. 6, 2019), https://www.congress.gov/bill/116th-congress/senate-bill/365/text.

[4] 5 U.S.C. § 801 (2018).

[5] See Maeve P. Carey & Christopher M. Davis, Cong. Research Serv., IF10023, In Focus: Congressional Review Act (CRA) (2018), https://fas.org/sgp/crs/misc/IF10023.pdf.

[6] See Paul Larkin, Jr., The Trump Administration and the Congressional Review Act, 16 Geo. J. L. Pub. Pol’y 505, 508–509 (2018) (explaining the use of the Congressional Review Act to rescind “midnight regulations” issued at the end of the previous administration), https://www.law.georgetown.edu/public-policy-journal/in-print/volume-16-number-2-summer-2018/the-trump-administration-and-the-congressional-review-act/.

[7] The Federalist No. 51 (James Madison).

[8] Id.

[9] 462 U.S. 919 (1983).

[10] See U.S. Const. art. I, § 7.

[11] In a survey of 20,000 small-business owners, “Uncertainty over Economic Conditions” ranked as the fourth-most important problem and “Uncertainty over Government Actions” ranked sixth among a list of 75 policy and operational issues. See Holly Wade, Nat’l Fed’n Indep. Bus., Small Business Problems & Priorities (Aug. 2016), https://www.nfib.com/assets/NFIB-Problems-and-Priorities-2016.pdf.

[12] Bipartisan Congressional Trade Priorities and Accountability Act of 2015, Pub. L. No. 114–26 (2015).

[13] 19 U.S.C. § 4205 (2018).

[14] Bicameral Congressional Trade Authority Act of 2019, S.287, 116th Cong. (introduced Jan. 31, 2019), https://www.congress.gov/bill/116th-congress/senate-bill/287/text.

[15] Id. at § 2(d).