In his latest op-ed in Slate, “Is Declaring a National Emergency to Build an Unnecessary Wall an Impeachable Offense?,” Professor Frank Bowman discusses factors that could make the political path to impeachment based solely on the grounds of a national emergency declaration tricky. Though it could be considered as part of a larger pattern of impeachable conduct.
“Use of ‘emergency’ powers to circumvent congressional unwillingness to fund a long-wished-for presidential pet project would be both unprecedented and a serious challenge to constitutional separation of powers norms,” writes Professor Bowman. He also notes that “George Mason, who introduced the phrase ‘high Crimes and Misdemeanors’ into the constitutional text, observed, the primary objective of the impeachment mechanism is to forestall ‘[a]ttempts to subvert the Constitution.’”
Professor Bowman explains two circumstances that could enhance the use of the wall emergency as part of the articles of impeachment. Before Congress can consider impeachment for abuse of emergency powers, they will need to terminate the declaration under the National Emergencies Act. It has a mechanism whereby the presidential emergency can terminate when “there is enacted into a law a joint resolution terminating the emergency.” Such a resolution would require majority votes in both houses, including a significant number of Republicans. A two-thirds majority in both houses is needed in order to be veto-proof. Such a vote could be an indicator that the disagreement is constitutional, and not partisan. The other circumstance would be “ if the Supreme Court definitively rejected Trump’s move as an unconstitutional breach of the separation of powers, the case for impeachment would be significantly strengthened.”