Jan
13
Should Trump Declare a National Emergency Over Border Security?
“We’re either going to have a win, make a compromise — because I think a compromise is a win for everybody — or I will declare a national emergency.” — President Donald Trump
Once again, the U.S. government is in a partial shutdown due to a stalemate on budgetary issues. The President demands the $5.7 billion dollars he requested for building the “big beautiful wall” (or whatever the barrier turns out to be) on the border with Mexico, while congressional Democrats insist that they want to improve border security — yeah, right! — but refuse to fund the President’s “wall”, which Speaker Pelosi has called “immoral”.
So, what’s a president to do?
One option, which Trump has been considering, is to declare a “national emergency” regarding border security. This would “unlock the powers contained in more than 100 other laws”, two of which might grant him access to Defense funding, which could possibly then be allocated toward “construction projects”.
There have been many past instances when presidents declared national emergencies, so that they could act without waiting for Congress — usually to deal with “a natural disaster, public health threat, terrorist attack, or war.” They go back at least as far as the Lincoln administration, through passage of the National Emergencies Act in 1976, and into the present. Such emergency declarations are generally done via executive orders, which carry the force of law. They stay in effect until 1) ended by POTUS, who must otherwise renew it every 180 days; 2) reviewed and overturned by federal court; or, 3) Congress drafts a concurrent resolution to terminate the state of emergency. Many from previous administrations (e.g., that declared by Bush following the 9/11 attacks) are still in effect. (Go here and here for more info on the history, parameters, and legality of presidential declarations of national emergency.)
The “emergency” being argued by Trump and others is a combination of drugs, criminal gangs, and humanitarian concerns at the southern border. Democrats (and a few others) deny it is an actual crisis. One unfortunately fuzzy aspect to this is that the National Emergencies Act, while adding limitations and much more structure to how such declarations are handled, does not define an “emergency”. As per the Washington Post‘s Deanna Paul, “A president must issue a written and signed declaration that specifies the specific emergency powers he plans to rely on and invoke.” But, once the emergency has been invoked, it is subject to the abovementioned challenges by the other branches of government. And we know, should Trump take this option, it will definitely be challenged left and right.
There are notable non-Democrats who have urged the President to go this route. For example,
“It is time for President Trump to use emergency powers to fund the construction of a border wall/barrier.” — Sen. Lindsey Graham (R-SC)
Border wall prototypes
Pat Buchanan believes that the issue is indeed serious enough and the stakes high enough to justify declaring a “national emergency” and that the American people will (for the most part) support it.
“What should Trump do now? Act. He cannot lose this battle with Pelosi without demoralizing his people and imperiling his presidency.
Since FDR, we have had presidential government. And when U.S. presidents have been decisive activists, history has rewarded their actions….
Trump should declare a national emergency, shift funds out of the Pentagon, build his wall, open the government and charge Democrats with finding excuses not to secure our border because they have a demographic and ideological interest in changing the face of the nation.”
Mark Levin, the popular radio host and constitutional lawyer, said,
“He needs to make his case under the statute, which is an easy case — that securing the southern border is a national emergency, given the chaos there, the related consequences, and the refusal by the Democrats to address it in any meaningful way and their holding the rest of the government hostage.”
It’s not surprising that those on the Left have come out against this. As per Jonathan Turley at The Hill, “Representative Adam Schiff, Berkeley law school dean Erwin Chemerinsky, Yale law professor Bruce Ackerman, and many others denounced such a move as flagrantly unconstitutional.”
But, there are other non-Democrats who question the wisdom, if not the constitutionality, of such a move. People like Judge Anthony Napolitano, Erick Erickson, and the Heritage Foundation’s John Malcolm, note that these emergency declarations can be dangerous things, as they set precedents. It’s dangerous enough to allow those in one’s own party such authority (e.g., “eminent domain and reprogrammed dollars”). When the Democrats/Progressives are back in power and can use the same or similar reasoning to justify their own “emergencies”, these precedents may very well come back to bite us (i.e., conservatives and Americans in general).
Napolitano — who cites the same incident that Rep. Schiff does of Harry Truman’s attempt to seize the steel mills — even questions the legality of using the Act this way, apparently, stating,
“[T]he Supreme Court has made it very clear: even in times of emergency, the president of the United States of America cannot spend money unless it has been authorized by the Congress.”
(The judge would seem to be mistaken on this, imho. Unless I’m missing some detail here, by passing the National Emergencies Act 20+ years after Truman, Congress did indeed provide for such a situation.)
Ben Shapiro
The inimitable Ben Shapiro had a few points of his own to make:
“It would be a serious stretch to suggest that military necessity dictates the overruling of Congressional powers in this case – and it sets the precedent that the executive would presumably try to declare a national emergency to redirect already-allocated defense funding to pet projects on a routine basis. Imagine Elizabeth Warren declaring a “green national emergency” and then authorizing the military to shutter coal plants, as Erick Erickson has suggested….
Trump could also theoretically use 10 USC §284, which allows the Secretary of Defense to “provide support for counterdrug activities” if such support is requested by the official responsible for such counterdrug activities. Such support would be restricted to “maintenance, repair, or upgrading of equipment.” Building hundreds of miles of new wall would probably not fall under this definition.”
Shapiro then warned against Trump acting unilaterally and thereby legitimizing when Obama did so. He went on…
“Furthermore, a court will undoubtedly stop Trump. And that’s presumably what he’s looking for: he could try his emergency powers while simultaneously signing an end to the government shutdown. While a court works to strike down that emergency declaration, Trump can fulminate against the judiciary, the Democrats, and weak-kneed Republicans. He gets a win from his base; the government reopens; the Democrats can claim that they never caved. That’s the most cynical answer to Trump’s government shutdown predicament.
It’s also not going to get a wall built….
If Trump instead takes the easy but ineffective way out, he’ll be doing the wrong thing – and demonstrating that Republicans are more interested in optics than in actually building the wall….”
Newt Gingrich, on the other hand, approached the issue from another angle:
“The one thing neither the liberal media nor the Democrats have taken into their calculations about the government shutdown is that President Donald Trump has to win on the border security issue. He has no choice….
As a political leader, candidate Trump has made controlling the southern border one of his major themes. He has been talking about it for three and a half years. If he were to back down, it would send a signal of weakness to his base….
Trump was nominated in part because the base Republican electorate was tired of leaders who promised big changes at campaign time, and then delivered excuses when trying to govern. They currently believe Trump is different from normal politicians. So far, every indication we have is that he is truly different and truly a unique figure…..
When one side refuses to compromise, there can’t be a compromise. There can only be surrender or victory.
The Democrats have decided to start the new Congress by trying to humiliate the president, give him nothing, and force him to surrender on their terms.
For President Trump to let them win under those circumstances would simply destroy his presidency and end his chance of re-election. After all, if Speaker Pelosi can win this round, what will her next demands be?”
Newt Gingrich
Gingrich then outlined 3 strategies he believes Trump must pursue simultaneously. In short:
1) Communicate clearly to the nation that “concerns about illegal immigrants killing, raping and robbing innocent Americans are legitimate…. Let the Democrats who claim this is a manufactured crisis look the victims’ families in the eyes and tell them they don’t count.”
2) Push the proposal to help DACA recipients who arrived as minors, including encouraging his supporters to “flood Spanish language radio and other outlets with requests for people to call their members of Congress and demand they help the president help the DREAMers.” In the process, Democrats look hypocritical for refusing to cooperate.
3) “[T]here is no possibility of enough Republicans splitting with the president to override a veto,” and Sen. McConnell is refusing to schedule any bills that the President would veto. So, Trump needs to remind both parties that, since “he is prepared to veto left-wing efforts to block control of the border”, no legislative solution to the shutdown is viable without his approval.
It’s the Democrats who look worse and worse the longer this stalemate continues. Gingrich concludes:
“As the master of “The Art of the Deal,” President Trump knows that some negotiations must ripen before they can be completed. His job is to relax, stand firm, and let the situation ripen until the Democrats accept a deal that includes the southern border security provisions. Anything less just wouldn’t be Trump.”
Art Arthur of the Center for Immigration Studies is thinking along the same lines…
“As the president appears more reasonable and talks more about compromise on this, the intransigence of the Democrats, I think, is going to be a political liability for them, particularly as more Americans are affected by the shutdown.”
Well, it seems that the President has opted to delay any “national emergency” declarations for the time being. As of Friday afternoon, he announced,
“What we’re not looking to do right now is national emergency. I’m not going to do it so fast.”
In the end, while completely legal to do so, declaring the current border/budget situation a “national emergency” would appear to be both unwise and unnecessary at this time. It also appears that the President agrees… for now.
