After hurricane Katrina devastated the Gulf Coast in 2005, President George W. Bush declared a national emergency to do something that the Republicans had wanted to do for a long time: he broke the applicable wage laws on federal contracts to rebuild the region.
The unions protested. Democrats signed up for a bill to rewrite the law. Even dozens of moderate Republicans have asked Bush for reconsideration.
But then a single congressman used a parliamentary maneuver – never tried before or after – to challenge the substantiation of the national state of emergency itself.
Bush resigned without even casting a vote.
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The largely forgotten story of Bush's capitulation explains why the Republicans advised President Donald Trump to bypass the Congress and call for a national state of emergency to build a wall along the Mexican border.
In addition to legal questions – such a move would inevitably be challenged in court – a statement would invite Congress to exercise its long dormant power to withdraw national emergencies.
And all that is needed is a member of Congress to force the problem.
In 2005, that delegate was the deputy George Miller, a Californian legislator who was the best Democrat in the Home Education and Labor Commission.
Bush called Bush's decision hard and misplaced & # 39; and tried to change the Davis-Bacon Act of 1931. This law determines the applicable wages for federal contracts, but allows the president to grant exemptions in times of national emergency.
But the Democrats were in the minority, and while some Republicans grumbled about Bush's move, they were not willing to sign up to Miller's law-which means it would never come on the floor of the house.
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So Miller changed direction. He dug up the National Emergencies Act of 1975, one in a series of reforms after the Waterpoort. It allowed Congress to end a presidential emergency by a simple majority of votes.
Republican leadership could not block the vote: according to the law, they had 15 working days to get it out of the committee and to speak.
Miller introduced its resolution on October 20, and a vote was scheduled for 8 November.
On October 26, the Bush administration announced that the emergency would be terminated with effect from November 7.
Bush Labor Secretary Elaine Chao said the administration had re-examined the problem and found that it would not save as much money as initially predicted. (Chao remains a power in Washington: she is now the transport secretary of Trump and her husband is Mitch McConnell, head of the Senate Republican Senate.)
Miller has declared victory.
"Let me be clear," he told the New York Times. The president is trying to fall back today only because he had no choice. & # 39;
Mark Zuckerman, who was the Democratic Staff Director of the House of Education and Labor at the time, says that all that was needed was the threat of a voice.
"It can be revealing if you let people vote on something," he says.
"We thought it was an unacceptable and inappropriate use of emergency powers, but we also wanted to see if there really was any Republican support for such a thing, I think the part of the genius of the procedure is that it's the sentiment on Capitol Hill test for your one-sided idea. "
The original intention of the 1975 Act was to have Congress suspend a presidential emergency with a simple majority of votes. But in 1983 the American Supreme Court deposited the legislative wealth. So now, any joint Congress resolution to end an emergency situation can be rejected by the President.
And McConnell said that Trump could do exactly that.
"The president could win anyway by vetoing the law and then try to get enough votes to support it, so in the end it could be victorious over the national emergency alternative," McConnell told Fox News Tuesday.
Nevertheless, some GOP senators already show discomfort about such a mood and have asked Trump this week – publicly and privately – not to put them in that position.
"It is not my preference," said Sen. John Kennedy, R-La.
"I hope he does not," he said. Sen. John Cornyn, R-Texas.
"It might be a – you know – a tough voice to win here in the Senate," Sen Th said. Thune, R-S.D.
A concern is the precedent that such a statement would establish.
"I think most Republicans will tell you that we really want to find a way to avoid that kind of discussion, if it's possible because it goes beyond just this president," Senator Mike Rounds, RS.D., told Good King News on Wednesday. "This goes on to future presidents and what they could decide to declare an emergency for."
Special report: The eternal state of emergency of America, from Jimmy Carter to Barack Obama
That was exactly what Congress expected when it decided by an overwhelming majority to get the National Emergencies Act.
The law called for every emergency to be reviewed every six months and eventually approved. But in 44 years presidents have proclaimed at least 60 national emergencies without Congress having a single vote.
Thirty-one of these emergency situations remain in place today.
More: A permanent emergency: Trump becomes the third president to renew extraordinary power after 9/11
The use of emergency powers became so routine that the Obama administration in 2015 said that it was purely formalities – despite their standard language that they respond to an "unusual and extraordinary threat to national security." And presidents seem to have ignored the demands to inform Congress about the costs of these emergency situations.
More: The White House of Obama claimed that national emergencies were just formalities
Liza Goitein, director of the national security program of the Brennan Center for Justice, has advocated reform of the powers of presidential emergency services.
"I think Congress has woken up to the idea that the process of declaring emergency situations is tolerant," she says.
"This is not going to look good if the Republican Senate votes to restrict the power of the president, it is going to split Republicans and force Republicans to cast a vote they do not want to take – and it will be Trump & # 39; s way do not go. "
Trump has not mentioned the national state of emergency in his State of the Union address Tuesday, but says he is still considering it. A national emergency could enable him to transfer unused military building funds to a wall.
"I do not like getting things out of the table," Trump told CBS in a pre-Super Bowl interview. "It's that alternative, it's a national state of emergency, it's other things and, you know, there have been enough national emergencies."