Declar­ing an emer­gency might back­fire on Trump

Chicago Tribune (Sunday) - - PERSPECTIVE - Steve Chap­man Steve Chap­man, a mem­ber of the Tri­bune Ed­i­to­rial Board, blogs at www.chicagotri­bune.com/chap­man. schap­[email protected]­bune.com Twit­ter @SteveChap­man13

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.

BREN­DAN SMIALOWSKI/GETTY-AFP

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