Well, it’s been a while coming, but the President finally did what he had been threatening to do for quite some time, and declared his national emergency relative to our southern border so that he can divert funding for his completely unnecessary and mostly symbolic border wall.
Along the way, let’s note that the government has finally been funded for the next fiscal year, including some additional funding for border security, and that we can stop (at least for a while) with these completely petty and disruptive government shutdowns.
So the question that naturally arises is whether this is a legitimate use of the President’s power, and whether he will be able to divert funds to build his border wall?
To answer that question, we should first note that the law that gives the President such authority is the National Emergencies Act of 1976. That law was ironically designed to bring some order out of chaos (and really clarify when a President can use emergency powers). Previously emergency power had been distributed throughout a number of confusing and inconsistent acts.
Presidents have used these powers more frequently than one might have expected — as of this counting, 58 emergencies have been declared — but mostly for very specific things. So, for example, Obama declared a National Emergency With Respect to the 2009 H1N1 Influenza Pandemic, which allowed the Secretary of Health and Human Services to issue waivers allowing overcrowded hospitals to move swine flu patients to satellite facilities or other hospitals.
Trump is going much larger than this, of course. Moreover, he’s specifically disregarding the negotiations that Congress engaged in before coming to agreement on the continued funding of the government.
Now, I’m no Constitutional scholar, but I know where to find some of them. So, let’s listen to Elizabeth Goitein at the Brennan Center for Justice, who is an expert in these areas, and see what she has to say. In short, in an article published in January of 2019 (when Trump first started threatening to use emergency powers) she wrote:
- While Trump can declare a national emergency, it would be an abuse of power in this instance (because there clearly is no emergency at the border);
- Congress is supposed to vote on whether the emergency still exists every 6 months, but with respect to previous emergencies Congress has largely abdicated that responsibility
- Congress could change the National Emergencies Act to make it more difficult to declare an emergency (but probably does not have the votes to do so).
- If it had the votes, Congress could also just pass a bill countermanding Trump’s commandeering funds for his great wall.
More recently Goitein wrote that the courts will likely let Trump declare an ‘emergency,’ even if it’s made up. (But they might not let him shift funds and contravene the will of Congress.)
My prediction? It doesn’t get resolved before 2020.
In any case, I’m happy Trump is trying to do this. It works for me, because:
- Trump is setting a broad precedent that Democratic Presidents can use in the future.
- It makes the Republicans out to be hypocrites once again, given the uproar they made over Obama unilaterally protecting DACA recipients.
- It’s going to make for great courtroom theater as advocacy groups and Attorney Generals around the country challenge Trump on the legality of declaring this as an emergency.
Stay tuned as the Great Wall drama unfolds in the upcoming weeks and months.