What constitutional laws support a leader overriding his Congress? In other words, what thoughts regarding freedoms and rights from the founders of a nation support a leader taking supreme power over its Congress? I guess I'm asking, what's the point of having a law-making body and a judicial body, if there are laws allowing a single person to overrule both? But more than that, I'd like to find out what the exact laws are. What I've tried: look for similar questions, like this. But that question is in fact many questions rolled into one, and the answers do not directly address my more fundamental one. Isn't the executive branch supposed to just execute? I.e. Execute the bills proposed by the party he represents, as supported by that party's allies? (I realize of course that this is a challenge with only two parties. With only two, both are more or less bound to never negotiate; never agree with the other's bills.) Addition from comments (thanks Putvi): I'm actually not asking specifically about Trump and recent events, simply because I expect there to be well-established laws in the constitution that support this, and I don't know which they are. I'm asking for the United States, though, and there are many still in effect. It's not the only country, I guess I'm trying to get to grips with how the Congress wouldn't immediately support an actual emergency if one is evident. Surely it would? And how a law that lets a leader declare one himself came about. I've looked some more. This is all the same question in my mind, but to be the most specific I can be: For the U.S., how does the 1976 law override or amend the constitution? (As in: this law could have been passed for something that was needed then, but wasn't before and isn't now.) After two edits, I've made it as specific as I can. I hope you can answer, I'm new here :)
In other words, what thoughts regarding freedoms and rights from the founders of a nation support a leader taking supreme power over its Congress? Generally speaking, one doesn't take "supreme power over Congress", one instead, disregards laws duly enacted by Congress or express mandates of the Constitution, including those related to cooperation with Congress. The most notable recognized deviations from Congressional direction that are recognized (at least by some people) are: The authority of the President to direct the military as commander-in-chief, and to a lesser extent, to conduct foreign policy. U.S. Constitution, Article II, Section 2. This power is balanced with the power of Congress to declare war and regulate the military via the War Powers Resolution of 1973 which has never really been tested in a "when push comes to shove" kind of way so far. The War Powers Resolution (a.k.a. the War Powers Act) requires the President to seek Congressional approval for new conflicts that arise that could become wars and predominantly Presidents have done so without necessarily acknowledging that they are obligated in a constitutionally valid way to do so. The closely related power to unilaterally employ military force to ensure a Republican form of government or to respond to an invasion or insurrection or at the request of a governor, "domestic violence" without Congressional authorization. U.S. Constitution, Article IV, Section 4. The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence. Related to this is the power to suspend the writ of habeas corpus. U.S. Constitution, Article I, Section 9: The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. In practice, however, this theoretically unilateral power of the President has never been very meaningful, because no President has ever sought to invoke it in circumstances in which he didn't already have solid and prompt legislative support from Congress. For example, the suspension of habeas corpus by President Lincoln during the U.S. Civil War was backed by legislation from Congress, the Habeas Corpus Suspension Act of 1863. But, the emergency power to limit the right of habeas corpus has been significantly restricted by U.S. Supreme Court case law: In ex parte Milligan, the United States Supreme Court held that the Habeas Corpus Suspension Act [of 1863] did not authorize military tribunals, that as a matter of constitutional law the suspension of habeas corpus did not itself authorize trial by military tribunals, and that neither the Act nor the laws of war permitted the imposition of martial law where civilian courts were open and operating unimpeded. The emergency powers of the President to use the military domestically are also limited by the Posse Comitatus Act and related legislation, which prohibits the use of the military to enforce civilian laws domestically in most circumstances, absent an invasion or insurrection. The authority to pardon someone who has violated the law. U.S. Constitution, Article II, Section 2. The authority to veto legislation subject to Congressional override. U.S. Constitution, Article I, Section 7. The authority to not spend all funds that are authorized by Congress for a purposes that are not entitlements. This is implied in case law subject to limitations in a 1974 Act of Congress. This is called "impoundment of appropriated funds." But, one of the strongest limitations on Presidential power is that the President may not spend any money not appropriated by law by Congress. The President can constitutionally spend less than is appropriated by Congress, subject to the Impoundment Act of 1974, but not more. Since the Constitution prohibits many kinds of long term binding contracts and prospective appropriations that would bind future Congresses (except for the Naval contracts), see U.S. Constitution, Article I, this leaves the President on a fairly short leash and fairly accountable to Congress. The authority to exercise discretion in not fully enforcing all violations of the law. This is implied in case law, especially, the law of prosecutorial discretion. The prosecutor's broad discretion in such areas as initiating or foregoing prosecutions, selecting or recommending specific charges, and terminating prosecutions by accepting guilty pleas has been recognized on numerous occasions by the courts. See, e.g., United States v. LaBonte, 520 U.S. 751, 762 (1997); Oyler v. Boles, 368 U.S. 448 (1962); United States v. Fokker Services B.V., 818 F.3d 733, 741 (D.C. Cir. 2016); Newman v. United States, 382 F.2d 479 (D.C. Cir. 1967); Powell v. Ratzenbach, 359 F.2d 234 (D.C. Cir. 1965). This discretion exists by virtue of the prosecutor's status as a member of the Executive Branch, and the President's responsibility under the Constitution to ensure that the laws of the United States be "faithfully executed." U.S. Constitution, Article II § 3. See Nader v. Saxbe, 497 F.2d 676, 679 n. 18 (D.C. Cir. 1974). Complete executive branch control of prosecutorial discretion, however, has been limited by the creation of independent agencies within the federal government and by the enactment of laws authorizing the appointment of a special prosecutor, like Robert Mueller, in cases where there is a risk of a conflict of interest from the President. The authority to refrain from enforcing laws determined to be unconstitutional when that determination is not contrary to the controlling judicial branch ruling. This is implied in case law and in the duty to faithfully execute the constitution. U.S. Constitution, Article II, Section 1. This is closely related to prosecutorial discretion. Sovereign immunity as applied to executive branch officials including the President, is mostly a product of case law although it has some statutory acknowledgement in relatively pedestrian claims like lawsuits for ordinary tort liability against the United States seeking money damages which must usually be brought in the U.S. Court of Claims, if they are allowed at all (with an important exception established in the Bivens case). Case law has also recognized an "executive privilege" against forced disclosure of certain information by the executive branch although the scope of this privilege, which arises only from case law, is disputed. Only a handful of cases have addressed this, the most famous of which is United States v. Nixon discussed at the link. There is also an unanswered question regarding when, if ever, a President's actions are clear and intentional violations of the law, and yet still might not constitute impeachable offenses set forth in U.S. Constitution, Article II, Section 4, or what remedies are available when an impeachable offense is committed but Congress is unwilling or unable (perhaps due to Presidential action) to conduct impeachment proceedings. Other than these circumstances, the U.S. Constitution does not contemplate that the President has emergency powers of any kind. There are few precedents in which the President has defied the law and the will of Congress more generally based upon a claim of emergency powers. The emergency powers of the President, in particular, and government, in general, are qualitatively and quantitatively, different from emergency powers in most other countries, which are, generally speaking, more expansive and have more formal recognition in the governing documents and laws of the countries in question. For example, while a bipartisan coalition in the U.K. suspended elections during World War II, the United States has never, ever, under any circumstances suspended an election (except during the U.S. Civil War in the Confederate States, where the Confederacy that was the de facto regime there held its own elections instead). Specific Legislation Despite its name, the National Emergencies Act of 1976, doesn't really address the question. Analytically, this is just a law authorizing the President to do certain things under certain circumstances, just like any other law, and not a law that gives the President "supreme power over Congress". It is more like the laws governing disaster relief, which authorize the President, subject to specific criteria, to determine that a situation is a national disaster, upon which determination certain federal assistance is authorized. This is why, even though scores of "emergencies" have been declared, many of which are still in force, they don't feel, to the general public, like "emergencies." To the extent that the National Emergencies Act purports to go further, in ways not expressly authorized by the U.S. Constitution, it is an unconstitutional violation of the non-delegation doctrine and isn't a valid law. So, for example, Congress cannot delegate all of its law making power to the President via regulations. The Supreme Court ruled in J. W. Hampton, Jr. &amp; Co. v. United States (1928) that: "In determining what Congress may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the government co-ordination." So long as Congress "shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power." For example, Congress is not constitutionally permitted to give the President line item veto power. Clinton v. City of New York (U.S. 1996). Isn't the executive branch supposed to just execute? I.e. Execute the bills proposed by the party he represents, as supported by that party's allies? The Executive branch is supposed to "execute" although it has considerable discretion in how it does so and has some express instances of unilateral power like the veto power and the pardon power. But, the Executive branch is supposed to "execute" the laws enacted by Congress, not "the bills proposed by the party he represents, as supported by that party's allies." From a legal and constitutional perspective, until a bill is passed by Congress and duly enacted as a law, the Executive branch not only can, but must, ignore them, in any capacity other than as one more lobbyist before Congress among others, on a hypothetically equal footing as everyone else (except that the President has the veto power and the VP can cast tie votes in the Senate, per Article I of the U.S. Constitution).
Constitution of the USA, Article IV, Section 1: Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. and the Commerce Clause (Article I, Section 8, clause 3): [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; SCOTUS has found the former to mean that states that do not allow same-sex marriages in their laws must recognize same-sex marriages registered by other states - Obergefell v. Hodges. Maybe one could argue that driver licenses are not equivalent among states, but I would expect judges (SCOTUS) to require a very well reasoned explanation. For example, maybe Alaska could refuse to recognize licenses from Florida because Florida drivers do not know how to cope with snowed roads. But even in that case Alaska probably would need to produce data showing that these measures aim to serve the public interest (avoid accidents) and that there are no other ways of getting the same result. OTOH the Commerce Clause has been successfully used to avoid states mandating racial segregation of travellers, so it is quite reasonable to see it being used to prevent a state from trying to limit the mobility of citizens from other states (again, in the supposition that the state restricting it cannot show a compelling reason to do so). AFAIK, only the Federal Government could invoke the Commerce Clause; I would expect a lot more people (in your example, the PA government or maybe even any PA driver) would have standing.
I will only address this part of the question: Who would be able to authoritatively decide the constitutionality of such a question, with all Supreme Court justices having clear conflict of interest on the matter? The Supreme Court could still hear such a case, as the justices make their own decisions about when to recuse themselves. In particular, they might decide to hear the case based on the "Rule of Necessity", which says roughly that a biased judge is better than none at all: a judge can hear a case, even in the presence of a conflict of interest, if there is no other way for it to be heard. See United States v. Will, 449 U.S. 200 (1980), in which the Supreme Court ruled 8-0 that federal courts could try a case related to the salaries of federal judges. Another possibility is that the case could be brought in a lower federal court, say District Court. There is a question here: the Supreme Court has original jurisdiction in "all Cases affecting Ambassadors, other public Ministers and Consuls" (US Constitution, Article III, Section 2), and I do not know whether Supreme Court justices are "public Ministers". However, if a lower court did have jurisdiction, it could rule on the constitutionality of the question, since a District Court judge would not have a significant conflict of interest. The relevant Circuit Court of Appeals could presumably hear an appeal. If the Circuit Court's ruling was appealed to the Supreme Court, and the Supreme Court felt that they all had conflicts of interest (and decided not to invoke the Rule of Necessity), then they could simply not vote to grant certiorari, in which case the Circuit Court's ruling would stand.
The Commander-in-chief powers are quite broad. The War Powers Resolution limits his ability to engage unilaterally in military action, by requiring him to report to Congress within 48 hours, and if Congress disapproves, troops must be removed after 60 days. However, this law pertains to armed forces, and would not apply to remotely-launched missiles. Additionally, it is unknown if the resolution is unconstitutional (presidents say it is). No law at all requires POTUS to obtain permission from someone else, in order to engage in a military action. Article 90 of the UCMJ states that it is a punishable offense to "willfully disobeys a lawful command of his superior commissioned officer". The manual also states that An order requir­ing the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime. Murder of a civilian is an example. It also says The lawful­ness of an order is a question of law to be deter­mined by the military judge. "Shocking the conscience" is not a grounds allowing disobedience. One can only conjecture how a military judge would evaluate the lawfulness of a presidential order, when there is not a shred of legal evidence that such an order is in fact illegal: I conjecture that the order would be found to be lawful.
In the US, Congress may pass an act, and this creates one kind of law (if it is promulgated: signed, ignored, or re-passed with a super-majority). Some of those acts direct the executive branch to do things, and pursuant to that act, a regulation is promulgated. Together with case law, the whole thing is "law". A bill (in the House, or the Senate) may result in an act being passed by both houses. It may go through a number of drafts between the point when it is first introduced and the time it becomes an act.
Yes, the President can certainly veto such a law. Per the US Constitution (emphasis added): Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. This can have a very real effect: legislators are under no obligation to vote the same way on a veto override as on the original bill. The reason the President needs to supply written objections in the first place is that it lets legislators reconsider, see if they're swayed, or see if they think this is a matter where a Congressional majority needs to be respected even if they disagree (they can change their mind in either direction). They can also get a sense of public reaction. And because the threshold for this is "present and voting," it's possible that just more legislators show up. Even if legislators won't be swayed, it still matters for pocket vetoes. That's where the President neither signs the bill nor returns it within 10 days; normally this is equivalent to signing, but if Congress adjourns in the meantime, it means the bill does not become a law. Because "Congress adjourns" is a necessary part of a pocket veto, it's impossible to override the veto (you can't do it if you're not in session). And even when this doesn't apply either, it matters for politics. Example of a futile veto: Public Law 100-4. Passed 406-8 in the House, 93-6 in the Senate. Vetoed; veto was overridden 401-26 in the House and 86-14 in the Senate (note that at least 7 Senators who voted for the bill voted not to override the veto). Example of an effective veto: While technically there was a conference report agreed to by both houses, and it doesn't seem to have had a roll-call vote (my guess is it was agreed to by unanimous consent; side note: many, many laws don't have roll-calls to check on, because they're passed by voice vote or unanimous consent), H.R.10929 from the 95th Congress was passed in the House by a vote of 319-67 and in the Senate by 87-2. After President Carter vetoed it, the House voted on whether to override the veto. The motion to override was defeated 191-206: after the veto, they couldn't even get a simple majority to override the veto of the bill which had been passed by an overwhelming supermajority. I mentioned it above, but the two-thirds threshold is "present and voting." As a general rule, any time you see a fraction of something needed for a vote to succeed in a deliberative assembly, then unless it specifies some other denominator, it's talking about the fraction of members present and voting. Relevant CRS report on override procedure.
I believe that you will find something similar to this idea in the philosophy of John Locke. Locke was an early advocate of the governmental separation of powers, and his political works significantly influenced several of the framers of the US Constitution. (See Gary Willis, Explaining America for more on this.) There was also a maxim, several times quoted in The Federalist That &quot;no man should be judge in his own cause&quot;. This meant that, insofar as possible, the rights and powers of any person or institution should be determined and limited by some other person or body. This is part of the &quot;checks and balances&quot; theory of the US Constitution. All these are, at best, rules of thumb for the design of governmental systems and legal structures. Such maxims are not themselves enforceable law, and they are not invariably followed.
Your gut feeling is reasonably close, but not precisely correct. The Constitution sets the baseline rules for the powers of and interactions among the branches of the federal government, as well as the powers of and interactions between the state and federal governments. With only one exception (the dilution of a state's representation in the Senate), the Constitution can be amended to basically anything. It can make anything legal and it can make anything illegal. It generally addresses fairly high-leval legal principles, but there's no reason that it couldn't be amended to include a 9,000-page law specifically addressing every conceivable aspect of the regulation of nuclear energy. As it stands now and as it always has, the Constitution permits the federal government to write laws only with respect to certain topics. The states, meanwhile, retain authority to write laws on virtually any other topic. There are a variety of legal and historical reasons why prohibition took the form of a constitutional amendment while drug laws are handled legislatively, but one important consideration is the scope of Congress's power to regulate &quot;interstate commerce.&quot; At the time of prohibition, it was not clear that Congress could regulate commercial activity that took place entirely within a single state. So if you grew all the ingredients for your whiskey in Kentucky, and you distilled those ingredients in Kentucky, and then you sold your whiskey in Kentucky exclusively to residents of Kentucky, it seemed that your conduct was outside the reach of Congress, and that any attempt to regulate it would be vulnerable to a constitutional challenge. The solution, therefore, was to amend the constitution and give that authority to Congress. About a decade after prohibition ended, though, the Supreme Court decided that the power to regulate interstate commerce includes not just transactions that cross state lines, but also any conduct that “exerts a substantial economic effect on interstate commerce” Wickard v. Filburn, 317 U.S. 111, 125 (1942). This broadens the Commerce Clause authority to cover virtually any economic activity. So even if you buy marijuana seeds from your next door neighbor, plant them in your own back yard, grow them for strictly personal use in your own home, and never sell anything to anyone, the courts will hold that your conduct affects the interstate market for marijuana, and is therefore subject to federal regulation. This standard substantially lowers the bar for Congress to act without a constitutional amendment, which is a big part of the reason there hasn't been an amendment to address narcotic use.