Patrick Shea: Crying wolf when there isn’t one

The village boy with small hands reveled in yelling “wolf” at different days of the week.

At first it got everyone’s attention. Village people shut their doors, closed their windows and thanked the village boy with small hands for his alertness. However, after several false alarms, the village people began to ignore the boy with small hands, which really bothered him.

So, he tried several new tactics. Sometime his yell was early in the morning. Sometimes it was late at night. This change of time worked for a while and then, again, the village people caught on and ignored the village boy, which really upset him, again.

Then instead of yelling wolf, he switched to “fire” and this really got everyone’s attention, that is, for a while. Then, the village people ignored him again.

This adaptation of the children’s story came to mind with the recent ranting emanating from the president of the United States. In 1973 and 1974 I worked as researcher for U.S. Sens. Frank Church and Charles Mathias, the co-chairs of the Special Senate Committee to Study National Emergencies. My job was to do a chronology of the more than 5,000 “national emergencies” or executive orders that had been declared by the president since the beginning of our constitutional government.

Church and Mathias had convinced Majority Leader Mike Mansfield and Minority Leader Hugh Scott that the Senate had an obligation to explore how and when the president used his Article II powers to circumvent the Congress. My research examined the good, the bad and the unnecessary “national emergencies” and executive orders which past presidents, without any consultation or ratification by Congress, had declared.

The good included true national emergencies where the nation’s security was at risk, such as Franklin Roosevelt declaring a national emergency in 1933 to save the nation’s banking system. The bad included Roosevelt’s declaration to intern Japanese Americans during World War II. The unnecessary was to allow the Army’s cavalry to graze their horses on private land.

After nearly two years of work, Church and Mathias offered the National Emergency Act. Importantly, the act allowed the president to still declare a national emergency but, after 90 days, Congress could terminate the president’s emergency powers. The premise was that the president, as commander in chief, is able to act very quickly to protect the nation’s security, but Congress with its oversight responsibilities had to sustain the declaration if there was truly an emergency.

If Congress determined there was no emergency, the president’s emergency powers were curtailed. However, to enforce the declaration the Congress would have to rely on its power of the purse strings to curtail any funding for the emergency.

Since the Congress passed, and President Gerald Ford signed, the National Emergency Act in 1976, there have been 30 national emergencies declared. Some — for instance, after 9/11 — were certainly within the gamut the Congress anticipated in creating the statute. Others could be debated as to whether they were real emergencies or simply more circumvention of the Congress. What is unfortunate is that none of the 30 has been terminated.

Now we have a president who is generating what he calls a national emergency and is contemplating using the 1976 Act to build his wall. There are three significant problems with this.

* His self-created definition of an emergency violates the spirit, if not the letter of the act.

* The present Congress is unable or unwilling to provide the check to the abuse of executive power by declaring an end to the emergency.

* By declaring a non-emergency an emergency, it lulls our nation into a haze which will have our country ill prepared handle a real emergency when it certainly will come.

Sens. Mansfield, Scott, Church and Mathias, to name a few, must be spinning in their burial vaults.

Patrick A. Shea is an attorney in private practice and a research professor of biology at the University of Utah.