The legal fight over Trump’s ‘national emergency’
A coalition of 16 states this week sued to block President Trump from building a wall on the southern border after he followed through on threats to use emergency powers to obtain construction funding in defiance of Congress. Trump declared a national emergency on the Mexican border after grudgingly signing a bipartisan budget deal without most of the border wall funding he’d demanded, in order to prevent another government shutdown. Invoking the National Emergencies Act of 1976, Trump plans to divert about $6.7 billion in spending approved by Congress for other uses toward building at least part of the border wall that was the centerpiece of his presidential campaign. National emergencies have been “signed by other presidents,” Trump said in a Rose Garden news conference. “There’s rarely been a problem. They sign it. Nobody cares.”
Senate Majority Leader Mitch McConnell has said he will support the president in the coming political and legal struggle, although several Republican senators have expressed opposition, including Sens. Rand Paul of Kentucky, Lamar Alexander of Tennessee, and Susan Collins of Maine. A host of interest groups, including the American Civil Liberties Union, the Sierra Club, and the Southern Border Communities Coalition, also filed lawsuits charging that 200 miles of new barriers would hurt border communities and the environment. Some of the lawsuits argue that Trump’s own words prove that there is no emergency at the southern border, where illegal border crossings have been declining over the past two decades. “I can do the wall over a longer period of time. I didn’t need to do this,” Trump said in his press conference. “But I’d much rather do it much faster.”
What the editorials said
President Trump’s emergency declaration is a “dangerous fraud,” said Bloomberg.com. “To begin with, there’s no emergency at the border.” The larger issue, however, is Trump’s blatant assault on the constitutional separation of powers. Congress alone has the power of the purse. Lawmakers have granted the White House limited emergency powers to deploy resources in times of genuine crisis, when events move faster than the ordinary budget process. But that legal leeway was never intended to allow presidents to spend money on projects Congress has explicitly rejected. It’s “disgraceful” that McConnell and other Republicans would condone this.
Such hand-wringing is “beyond absurd,” said the New York Post. While the term “national emergency” sounds dramatic, it’s more of a technical designation allowing the president to shift some spending around. Going back to Jimmy Carter, presidents have declared about six national emergencies per term. Lawmakers have given the president wide leeway to determine what counts as a national emergency, making Trump’s actions “completely legal.” The law also gives Congress the ability to overrule an emergency declaration if it has the votes. Rest assured, our constitutional order remains intact.
What the columnists said
So here it is—proof that the president “really does seek unconstitutional powers,” said Yascha Mounk in Slate.com. Autocrats throughout history have trumped up “emergencies” and threats of foreign invasion to consolidate their power. “It would be tempting to think that a similar course of action would be impossible in the United States.” But our system of checks and balances depends on Congress protecting its constitutional turf. After pleading with Trump not to declare an emergency, McConnell and the GOP are caving in once again—an alarming “dereliction of duty.” Is there any power grab by this authoritarian president Republicans would refuse to accept?
Democrats have only themselves to blame, said David Harsanyi in TheFederalist.com. President Obama “normalized this kind of behavior” by defying Congress to grant legal status to “Dreamers”—the millions of illegal immigrants brought to the U.S. as children. Already, hypocritical liberals are licking their chops at the idea of declaring national emergencies to solve “real” crises like climate change and gun violence. That’s why conservatives will regret supporting Trump on this, said Jonah Goldberg in National Review. What will Republicans say when the next Democratic president uses emergency powers to fund the “Green New Deal” if they can’t get money from Congress? “‘The wall was different?’ Good luck with that.”
Trump’s emergency declaration “is a craven ploy to cover his own blundering,” said Jonathan Chait in NYMag.com. After House Speaker Nancy Pelosi made him look impotent in the battle over wall funding, Trump needed to do something to show his supporters he’s tough and strong as he heads into the 2020 election. He’ll probably lose in court: The Supreme Court’s conservative justices are willing to step out on a limb to roll back liberal policies they hate, but they “have no reason to spend their reputational capital” on Trump’s vanity wall. The real border crisis is the backlog of thousands of Central American families who’ve legally applied for asylum, said Matthew Yglesias in Vox.com, and more border barriers would do nothing to address that. If there’s a national emergency, it’s Trump’s incompetence. “What’s going to happen to us when a real crisis hits?”
President Trump’s emergency declaration “faces a lengthy court battle,” said Mark Berman, Fred Barbash, and Maria Sacchetti in The Washington Post. The outcome will likely depend on how much deference the courts choose to give the executive branch. The laws the White House is citing to justify Trump’s declaration are all fairly vague in defining “a national emergency.” Congress will also have its say, said Perry Bacon Jr. and Nate Silver in FiveThirtyEight.com. The Democratic-controlled House is expected to easily pass a resolution canceling Trump’s declaration, forcing the Senate to vote on it. It would take only four GOP defections to pass the Senate. At least eight Republicans have said they oppose the national emergency declaration, but there’s no guarantee they’ll follow through and vote to rescind it. By issuing this declaration, Trump “has forced his party into what amounts to a loyalty test.”
Cover illustration by Howard McWilliam.
Cover photos from AP, Getty, screenshot: BBC ■