America's abuse of national emergencies is the real national emergency
As I write this from Minnesota's Twin Cities, it is 27 degrees below zero outside, with a windchill around negative 50. For any man or beast with the misfortune to be outside longer than the minute it takes to dash from house to car, this is an emergency. Real danger is imminent.
The same cannot be said of the situation at America's southern border — at least, not the way President Trump conceives of it. Emergency situations do arise for some would-be immigrants taking dangerous, remote routes to enter the country illegally, but by and large there is no emergency at the border. Tragedy, crisis, inhumanity, yes. Emergency, no.
This is evident in Trump's own approach to the prospect of a national emergency declaration to obtain the funding Congress will not give for his fantasy border wall. He's lackadaisical in the extreme, teasing the idea for weeks on end. Perhaps, as Elizabeth Goitein writes at The Atlantic, Trump thinks this delay makes him look reasonable or heightens the felt need for action. But "[t]he truth is the exact opposite," Goitein argues, for "emergency powers are designed for situations in which Congress has no time to act." A real emergency would not see Trump tweeting his hope for eventual congressional action.
Trump's moseying course toward an emergency declaration is revealing, but not only where his border wall nonsense is concerned. Our entire national emergency system, governed in its present form by the National Emergencies Act of 1976, is ill-considered and ripe for abuse. It provides the president with a convenient sidestep of the legislature and Congress with yet another opportunity to abdicate responsibility to the executive. It is overdue for reform.
Since 1976, presidents have declared 58 national emergencies, and 31 of them are still in effect right now. The United States is at this moment officially suffering national emergencies over 1979's Iran hostage crisis, trade with Sudan, Albanian insurgents in Macedonia, fraud allegations in the 2006 presidential election in Belarus, and former Libyan dictator Moammar Gadhafi, who has been dead for eight years. Two emergency declarations following the 9/11 attacks have never been terminated, 18 years on. And should Trump finally get around to declaring his wall emergency, it will be the fourth indefinite emergency of his presidency. The previous three, like nearly a dozen still in effect from the Obama years, are concerned with travel bans and sanctions for various objectionable personages abroad.
The immediate aftermath of 9/11 as an obvious exception, almost none of these 31 ongoing national "emergencies" is a true emergency — and even those which began under emergency conditions, like 9/11, have lingered well past all reasonable understanding of the term. As Rep. Justin Amash (R-Mich.) tweeted Monday in critique of Trump's emergency proposition, "An 'emergency' does not elicit endless debate without consensus, nor is it addressed with a plan requiring years to execute. A house is burning, a ship is sinking, a city is flooding — these are considered emergencies precisely because everyone agrees they require immediate action."
The president "can't claim emergency powers for non-emergency actions whenever Congress doesn't legislate the way he wants," Amash wrote — but those 31 ongoing emergencies suggest that functionally, he can. This needs to change.
Most pressingly, a national emergency should be subject to a strict definition which comports with ordinary understandings of its component terms. The situation ought to be a true emergency, a grave crisis in which immediate action is necessary. It should also be national, both in the sense that it is not confined to a single city or state (where a municipal or state-wide emergency may instead be declared) and in the sense that it concerns our nation.
Election fraud in Belarus, for example, may fit the former bill — but only in Belarus. It is not a national emergency in America. If Congress feels "Blocking Property of Certain Persons Undermining Democratic Processes or Institutions in Belarus" is necessary for the United States (and this is not obvious), it can pass legislation accordingly. In the time this process will consume, I can confidently assure you the United States will not cease to exist due to briefly unpunished malfeasance in a country most Americans cannot locate on a map.
Reform of our national emergency system must also entail specific time limits, both for when the emergency may be declared and for how long it may last. Trump's present dilly-dallying is instructive on the first point, as he has waited more than long enough for two separate Congresses under different partisan control to make clear their disinterest in funding his wall proposal. This is not a crisis unfolding so quickly Congress cannot act; it is a president unhappy Congress will not act as he pleases.
The speed of modern transit and communication makes scenarios in which Congress literally cannot act within 24 to 48 hours increasingly unlikely, which means an updated National Emergencies Act should give the president a very narrow window to declare a national emergency after a crisis has occurred. When the window has closed, no further justification for overriding normal constitutional procedure exists. Responsibility returns to Congress alone.
The mechanism for termination of emergency declarations should also be updated. Instead of regular congressional renewals of the president's emergency powers, as current law demands, national emergencies should have a fixed expiration date of a year or less, after which Congress will have had plenty of time to pass legislation under regular procedure to address the crisis if it is still ongoing.
Trump's critics are right to protest his national emergency for a wall idea, but opprobrium from enemies is not a meaningful constraint on this or any president. Whatever happens with the wall, our national emergency system is already out of control.