A National Emergency?

February 21, 2019

Our political turmoil continues. The negotiators in Congress who were representing the Democrats and Republicans were able to reach compromise legislation on federal spending last week and averted a governmental shutdown. The legislation passed with overwhelming, veto-proof, majorities in both chambers. The bill dealt with border security, but only authorized $1.375 billion dollars for the construction of 200 miles of a new barrier along the border between Mexico and the United States. This was much less than the $5.7 billion that Trump had requested. On Friday, February 15, President Trump announced that he would sign the legislation into law, but that he was also declaring a national emergency in order to secure more funds for expanded construction of the wall. White House officials say that the declaration would permit the president to redirect $3.6 billion from the military, $2.5 billion from counter-narcotic programs, and $600 million from the Treasury towards wall construction.

Justification for and Weaknesses of the Declaration of Emergency

The 1976 National Emergencies Act is a U.S. federal law that grants special power to the President during an emergency but identifies restrictions for the use of that power. An emergency declaration can be rescinded by a joint resolution of both Chambers of Congress, but this would require a 2/3 majority in both the House and in the Senate in order to override a veto by a president.

Since its enactment, the law has been utilized 59 times, and over thirty of those declarations are still in effect. Republican and Democrat Presidents have invoked it, but this time is different. Previous uses of this act have always enjoyed widespread, bi-partisan acceptance. Recent examples include (1) the prohibition of the importation into the U.S. of diamonds from Sierra Leone {Clinton Executive Order 13194} and (2) the blocking of property of individuals contributing to the conflict in the Democratic Republic of the Congo {Bush Executive Order 13413}. Although these and other declarations are somewhat important for those involved, they hardly rise to the level of a “national emergency”.

What is new in Trump’s Declaration is that he wants to transfer funds authorized for other purposes into the construction of the border wall. In its federal spending bill, Congress specifically prohibited the use of funds beyond the $1.375 billion for the construction of a new wall. The U.S. Constitution maintains a fairly clear separation of powers of the three branches of our government (Legislative, Executive and Judicial). It is the Congress that has the “power of the purse”, that is, the responsibility to authorize federal spending, not the Presidency.

How will this conflict play out? It is likely that challenges will take place in both Congress and in the Courts.

Challenges in Congress

            Now that the Democrats have the majority in the House of Representatives, it is very likely that Speaker Pelosi will introduce a Joint Resolution to rescind Trump’s emergency declaration. It is also likely that the resolution would pass the House with a substantial majority. Through a special provision, the Senate would have to vote on that same legislation within a short period of time. Republican Senate Leader McConnell would probably not want to bring any legislation to the floor in which Trump would lose the vote, but in this case McConnell would not have any other option. Many Republican Senators (including Lamar Alexander, Susan Collins, and Marco Rubio) have expressed that the declaration would establish a “dangerous precedent” and, as a consequence, they would support a resolution to rescind the emergency declaration.[1]

            It is not so likely that such a Joint Resolution would garner the two/thirds majorities in both the House of Representatives and the Senate which would be needed to override a Trump veto.

Challenges in the Courts                                                                                               

In his White House speech, President Trump himself predicted that his emergency declaration would be challenged in the courts. “They will sue in the 9^th Circuit (Court of Appeals) even though it shouldn’t be there, and we will possibly get a bad ruling and then we will get another bad ruling and then we will end up in the Supreme Court and hopefully we will get a fair shake and win in the Supreme Court, just like the (travel) ban.”[2] Trump made these comments in a sing-song fashion as if to ridicule the judicial process, but in fact, he is probably correct in predicting what would happen in the various venues of the legal proceedings.

As of today (February 21, 2019), sixteen states have begun proceedings to sue the President. The legal suit claims “Contrary to the will of Congress, the president has used the pretext of a manufactured ‘crisis’ of unlawful immigration to declare a national emergency and redirect federal dollars appropriated for drug interdiction, military construction and law enforcement initiatives toward building a wall on the United States-Mexico border.”

Some other legal proceedings will probably come from ranchers who own land on the Southwest Border who do not want their land taken by the government through the use of “eminent domain”.

It is also possible that Democrats in Congress will sue the President, but I think they will express their disapproval through a vote on a joint resolution to rescind the declaration.

In the end, it is likely that the legal proceedings will reach the Supreme Court. The decision they might reach is somewhat difficult to predict. Although “Conservatives” have a 5/4 majority in the Supreme Court, it is not at all certain how they will rule. The newest Justice, Brett Kavanaugh, is known to be in favor of expanding powers for the presidency and would probably vote in favor of the declaration of national emergency. Nevertheless, other conservative justices usually tend to defend the constitution over “extenuating circumstances” and might rule that Trump has violated the law.

At times, President Trump has shown himself to be brilliant in his use of social media to advance his goals (tweets, rallies, etc.). At other times, he has made mistakes that have hurt his cause. His Rose Garden speech on February 15 was not one of his better moments. He made statements that weakened his argument that border wall construction was an “emergency”.

1. If it were truly an “emergency”, the border wall construction should have been his only topic. Nevertheless, he started his speech by rambling about a host of other items: Brexit, trade, Syria, North Korea, praising himself for being suggested for the Nobel peace prize, etc. before he got to the main issue of the “national emergency”.
2. During the speech he referred to his emergency declaration and claimed, “I didn’t need to do this, but I’d rather do it much faster.” Emergencies usually require urgent action. By his own words, he unintentionally admitted that the declaration was not urgent, merely just convenient.
3. After the speech, Trump spent the weekend on vacation at one of his resorts in Florida. Although presidents have the right to go on vacation, it gives an apparently contradictory message to declare an emergency and then go play golf.

My Reflections

1. Those Republicans in Congress who believe that Trump’s declaration of national emergency was a violation of the law, should vote their conscience instead of giving in to “party loyalty”. Partisanship does not outweigh ethical convictions. It will be important to notice how Republican voters respond to the Senators and Representatives who vote their conscience.
2. Democrats should avoid “overreach”. They hurt their own cause when they overstate their case. They should stick to the facts. They also need to repeat over and over again why they believe the border security bill was good and sufficient (increased number of ICE personnel, asylum judges, and inspection agents at the ports of entry, the use of better surveillance technology, etc.)
3. The Supreme Court should evaluate whether this was a valid, legitimate use of the 1976 National Emergencies Act or whether it was a violation of that Act, especially the transfer of large sums of previously designated funds.
4. Congress should revisit the 1976 National Emergencies Act and, where necessary, make explicit what activities are considered emergencies and those that are not. This Act needs to be updated.
5. According to all the national polls, most U.S. citizens do not favor declaring a national emergency to obtain funds to build to build a border wall. Nevertheless, a significant majority of Republicans do favor such a declaration. So, even if Trump loses a joint resolution in Congress and/or rulings in the courts, he will repeatedly affirm that he has fought the good fight to be true to his campaign promises. Most of his political base will stick with him and he hopes that this will be sufficient to win the 2020 election. It is important to see if he can keep independent voters. At the present, the majority of independents view this border wall construction as a campaign promise that is not the best way to provide border security.
6. There is a national crisis, but it is not the need to construct 200 more miles of a wall along the border. There exists a moral crisis. There is a need for more truth in the discussions about the great moral challenges of our day. We the People need to demand, and live, the truth.

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[1] See https://www.washingtonpost.com/politics/pelosi-warns-trump-republicans-against-emergency-declaration-on-border-funding/2019/02/14/cf6f492c-3099-11e9-86ab-5d02109aeb01_story.html?utm_term=.705f470cf319 for statements by Rubio and other Republican senators who have expressed they would vote in favor of a joint resolution to rescind the emergency declaration.

[2] https://nypost.com/2019/02/15/trump-predicts-he-will-ultimately-win-legal-challenges-to-border-wall/