President may find it a struggle to justify action was ‘necessary’
PRESIDENT Donald Trump declared that the situation at the southern border constitutes a national emergency. He announced he will sign a declaration to this effect, invoking the power to appropriate funds not authorised by Congress to build his wall.
Trump told all kinds of lies about how drugs come into the country, dismissing the idea that they mostly come through ports of entry (which they do) and claiming a wall will stop them (which it won’t).
“We have an invasion of drugs, an invasion of gangs, an invasion of people, and it’s unacceptable,” Trump said. In so doing, Trump made a claim that is subject to examination: that those things constitute a national emergency, justifying his appropriation of extraordinary powers to address it.
What’s at stake in this battle is a simple dilemma: can the president declare a national emergency, and appropriate all the powers that this confers on him, when there isn’t any national emergency? “That is the fundamental question,” said Elizabeth Goitein, who has researched national security law for the Brennan Centre for Justice at New York University.
Or, to put the question somewhat differently: Can the president declare a national emergency, no matter what the actual facts on the ground show? Is there any point at which presidential bad faith matters?
The basic problem we face right now in this regard was created by Congress. The post-Watergate National Emergencies Act, or NEA, places various constraints on the powers the president has when he declares a national emergency. For instance, it requires the president to say which other statute he is relying on to exercise the particular authority he plans to employ under his declared emergency.
The NEA also creates a mechanism by which Congress can terminate the emergency by passing a resolution through both houses. The House is likely to try this, but it’s unclear whether the Senate will go along. Trump would probably veto it anyway, though it’s still worth doing to get GOP senators on the record.
But the NEA doesn’t define what an emergency is, giving the president tremendous discretion to do that himself. The core question we now face is whether that discretion is limitless.
There will be lawsuits against Trump’s national emergency declaration. There are several basic ways of challenging Trump’s national emergency in court. The first is to challenge the idea that the statute Trump is invoking to find the precise power he wants to exercise actually does give him that power.
According to multiple reports, Trump is relying on a law that allows the defence secretary to “undertake military construction projects” that are “not otherwise authorised by law” if they are “necessary” to support “use of the armed forces”. This would reportedly allow him to tap some $3.5bn (€3.1bn) in funds.
Trump will claim the military is being used to counter his border emergency, since he sent in troops. But in this case, those troops are not actually repelling arriving migrants, so there’s no way to credibly argue that a wall is “necessary” to support what the military is actually doing. (© The Washington Post)