Declaring an emergency might backfire on Trump
If you can’t stop someone from doing something you dislike, you can always hope he or she will eventually overdo it. Icarus fell out of the sky not because he flew but because he disregarded a warning not to get too close to the sun.
Donald Trump may not be familiar with the lesson of that story. He has raised the real possibility that, denied funds by Congress to build his border wall, he will declare a national emergency to do it anyway. On Thursday, he said, “If this doesn’t work out, probably I will do it. I would almost say definitely.” On Friday, he backed off, saying he wouldn’t act “right now.”
It would represent new heights of chutzpah, even for the modern presidency and even for Trump. And it might be enough to cause some Republicans on Capitol Hill to rise up in rebellion — lest this tactic become a weapon for a Democratic president pursuing liberal ends without the consent of Congress.
It would probably not be illegal, though, thanks to a 1976 statute called the National Emergencies Act. “If President Trump wishes to state that the border is in a state of disarray or exposure such that it constitutes a national emergency under the NEA, he is pretty much free to do so,” writes University of Texas law professor Robert Chesney on the website Lawfare.
The “national emergency” option sounds like something to be deployed only rarely and in exceptionally dire circumstances — such as 9/11 or a huge natural disaster.
In the NEA, Congress gave the president considerable authority but placed firm restrictions on it, with the intention of keeping its use to a minimum. Things didn’t work out as planned. The Brennan Center for Justice reports that 58 separate emergencies have been declared, and 30 remain in effect — several of which date to the 20th century. Congress is supposed to regularly review each use of the law, but it never has.
That’s not all. There are 123 laws granting the president emergency powers. What was supposed to be a last resort in urgent crises is now rolled out whenever it suits the convenience of the White House, and what was supposed to be temporary is often permanent.
The danger to Trump is not so much that he would be blocked by the courts on the ground that using this power to build a wall would be exceeding his legal authority. It’s that his declaration might finally induce Congress to break its habit of tamely submitting to the whims of whoever occupies the Oval Office.
If a Republican president can use this trick to build a wall, a Democratic successor might use it for some nefarious left-wing purposes.
Congress was not meant to be a junior partner in governing. James Madison, the chief architect of the Constitution, wrote, “In republican government, the legislative authority necessarily predominates.” Under our system, “the executive magistracy is carefully limited, both in the extent and the duration of its power.”
That’s why the power of the purse was placed with Congress. Presidents are not supposed to be able to spend a nickel without legislative action. Madison feared that if anything, Congress would grow too powerful. He shouldn’t have worried. Lawmakers have found that with power comes responsibility, so they’ve chosen, repeatedly, to surrender both to the executive branch.
Partisan solidarity is one big reason. The framers expected each branch to jealously guard its prerogatives and repel any encroachment by the others. In our time, though, members of Congress are usually more devoted to advancing the interests of their parties than of their institution.
Only when the opposition party controls one or both houses can the president expect to be rebuffed on important issues — as in the case of Trump’s wall, which the Democratic House refuses to approve. Even Republicans who sometimes deplore his methods and disagree with his policies seldom vote against him.
But if Trump undertakes to spend $5.7 billion that lawmakers have denied him, some GOP members could rebel. If a Republican president can use this trick to build a border wall, a Democratic successor might use it for some nefarious left-wing purposes. Rep. Matt Gaetz, R-Fla., said, “I don’t want the next national emergency to be that some Democrat president says we have to build transgender bathrooms in every elementary school in America.” And if Trump were to use it for this project, he would soon think of others.
Congress has frequently abdicated authority to presidents on the hope that it would be handled wisely. Thanks to Trump, members may finally realize that the only sure method to prevent emergency powers from being abused is to take them away.