President Trump set a dangerous precedent for executive power on Friday when he declared a national emergency along the southern border to free up funding for the border wall. The declaration will divert $3.6 billion in discretionary military spending towards construction of the wall.
The declaration came on the heels of the passage of a bipartisan spending bill passed by Senate and House yesterday that allocated $1.7 billion towards wall construction, which was considerably less than the $5 billion that Trump, who has made the border wall his primary issue, was asking for.
House Democrats have already stated their intention to challenge the declaration in court, and there is a high likelihood that this case will be brought to the Supreme Court. Whether or not the declaration will be upheld is at this point uncertain.
In his declaration, President Trump stated that national emergencies have been signed “many times before,” and “there’s rarely been a problem.” He’s right: national emergency declarations are not a new or unique occurrence. In 1976, Congress passed the National Emergencies Act, which authorizes the President to declare a national emergency in order to activate emergency powers that ordinarily are not under the direct authority of the President.
Since the passage of the NEA, 59 national emergencies have been declared by presidents, according to the Brennan Center for Justice. 49 of these have been used to impose and enforce sanctions on various nations. Other recent examples include George Bush in the aftermath of 9/11, and Barack Obama in 2009 due to the H1N1 “swine flu” pandemic to reduce certain Medicare restrictions in order to treat more patients quickly and stop the spread.
These cases all constitute a legitimate reason for declaration where the action was necessary and reasonable. The same cannot be said about the current border situation. Border security is undoubtedly an issue: there needs to be a solution to our immigrant situation. But this is not an emergency. No immediate military forces are needed. The situation at the border has existed for decades, and the number of border apprehensions are a fraction of what they were 20 years ago.
Trump justified the declaration through fear-mongering, saying that “we have an invasion of drugs and criminals coming into our country,” but research has found the crime rate of illegal immigrants to be smaller than that of American citizens, and the vast majority of drugs illegally smuggled into our country is not coming across the Southern border, and would not be stopped by a wall. Trump himself admitted during his declaration that “I didn’t need to do this.”
This sentiment speaks volumes to the fact that this is not in any way an emergency: in an emergency, action is needed. If there was a true national emergency at the border, Trump would not have said that he “didn’t need to do this.” Is the current situation at the border ideal? No. Should there be increased border security? Yes. But should this be considered a national emergency commensurate with the same government force as the terrorist attacks on September 11th? Absolutely not.
Trump is weaponizing a serious national security statute as a vehicle for political expediency that sets a dangerous precedent for future Presidents and their use of power. Simply because he did not get the funding desired from congress does not mean a circumvention of congress and potentially bend the rules simply for his own political gain is warranted.
Emergencies impact real American lives, not simply political gamesmanship. By declaring a state of emergency to fund construction of the border wall, Trump cedes a risky level of precedent to declare a national emergency to justify whatever policy or action that future executives desire implemented without having to get congressional approval.
Elizabeth Warren tweeted in response to the declaration that “Gun violence is an emergency. Climate change is an emergency. Our country’s opioid epidemic is an emergency.” Warren’s tweet is evidence of the political repercussions his declaration could have.
If Democrats take the oval office in 2020, or 2024 and beyond, they would in theory be able to declare a national emergency to implement their policy of choice — whether it be gun legislation, the “Green New Deal”, or other items on the Democratic agenda — based on the precedent that Trump just set.
Progressive congresswoman Alexandria Ocasio-Cortez (D-NY) recently compared the issue of climate change to World War II in terms of the existential threat that it poses to the United States.. What’s to stop them from declaring a national emergency and mobilizing the military and spending money in any way they want?
Congress does have the ability to invalidate the declaration, but this would require a joint resolution which, if passed, would need the signature of the President to be effective. It is a safe bet that President Trump would not sign a resolution that would invalidate his own declaration. If he does not sign, then congress would need a ⅔ majority in each chamber to override the veto.
Considering that 70% of Republicans support the border wall (albeit not necessarily via declaration of a national emergency), Republican congressmen would be in a tough situation, and it is seemingly unlikely that the majority of Republican senators would vote to override the President’s veto. The fact that sixty-six percent of the border land is not federally owned and would require large-scale use of eminent domain is yet another obstacle to the feasibility of the wall and would become an additional point of contention.
One of the bedrock principles of the Constitution is a curtailed power of the executive and furthermore, a necessary separation of powers. Our government was founded on the idea of checks and balances. With this declaration, Trump is undermining congress and the legislative process.
President Trump, or any president for that matter, should not have the ability to use his authority to bypass congress because they are unhappy with the legislature’s decision. This should be especially worrisome for rule-of-law oriented conservatives, who have long been skeptics of concentrated executive power, and the possibility of its abuse in the hands of a tyrannical leader.
The declaration is not conducive to democratic rule, and is a short-sided, nebulous, and self-interested political move that has the potential and even likelihood to backfire.
President Trump has notably departed from past presidents in his style of presidency, but actions like this declaration are as unacceptable as they are unorthodox. With the declaration, he has shifted the debate from whether or not the wall should be built to whether or not, and to what degree, a President should be able to increase his own power.
By unethically declaring this situation a national emergency, Trump is potentially bending the rules of democracy while laying the groundwork for a dangerous future expansion of executive power.
