President Donald Trump turns back to the audience after speaking during an event in the Rose Garden at the White House in Washington, Friday, Feb. 15, 2019, to declare a national emergency in order to build a wall along the southern border. AP Photo/Susan Walsh
Trump’s Emergency Declaration is Going to Run into Four Hurdles
They fall into the broad buckets of legal, legislative, political, and constitutional issues.
President Donald Trump’s declaration of emergency salved yesterday’s loss of face—but has not solved any real problems for this administration or the country. In fact, Trump has opened four new problems atop the original problem with which he has flailed.The original problem is that a border wall was Trump’s signature promise, backed by his guarantee—“Believe me!”—that Mexico would pay for it. Trump has successfully induced his supporters to shrug off the abandonment of his promise that “Mexico will pay for the wall,” which is an impressive hustle already. He might well have induced them to forget the wall, or to accept that a light upgrade of the existing 700 miles of fencing counted as “the wall.” By now, his supporters are much more invested in the idea of Trump as a success than in his achieving any success in particular.
Still, Trump has to imagine that in 2020 some political opponent will drive to an unfenced part of the U.S.-Mexico border with a camera crew, walk back and forth across it, and make a mocking campaign commercial asking: Whatever happened to the wall?
So that was Trump’s foundational trouble, the threat that demanded a response.
He felt the need to be seen doing something, at least. The state of emergency is that something. But this something comes with four catches.
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The first catch is legal. The declaration of a state of emergency is heading almost immediately to court. Construction could be enjoined while the litigation proceeds. Trump could lose. Yes, that would give him somebody to blame in 2020. Liberal judges stopped the wall. But a loss with an excuse remains a loss.
By declaring an emergency, the president gains legal authority to move around some military construction funds, reportedly about $3.6 billion. But that money has to come from somewhere, and where it comes from is other projects. “That must have been really tough. To lose. To be a loser.” Those were Trump’s mocking words to Acting FBI Director Andrew McCabe, as quoted in his new book. He’ll have to wear them himself if the courts stop his wall.The legal route imposes another risk. Few voters will understand the limits on the emergency powers Trump has just invoked. The invocation will sound to many like final confirmation that Trump aspires to dictatorship. If the courts stop him, he will look like a defeated dictator—dangerous but weakened.
The second catch is legislative. Congress will now vote on a statement of disapproval of Trump’s use of his emergency authority. That statement will fly through the House of Representatives. In the Senate, it will need only 51 votes. Can Trump muster a blocking majority? Maybe not. He can veto the bill, and Congress may not muster the two-thirds majority necessary to override it. But even if he does, Congress will have gone on record accusing the president of abusing his powers, and acting like a dictator.
Central American border crossing and asylum claiming has been accelerating since the end of 2017. What kind of emergency can be postponed for 14 months? In 2018, Congress offered a lot of money for more fencing. Trump refused it. Even in 2019, it offered some. The state of emergency allows the president to reach for a little more than offered in 2019, but a lot less than was on the table in 2018. This does not look like emergency behavior. A congressional vote of disapproval will harden the already widespread impression that Trump himself does not believe his own claims, that he is playing demagogic politics with border security.
The third catch is political. The emergency powers Trump has proclaimed allow him to reshuffle money between military-construction envelopes. Every additional dollar he devotes to the border is a dollar taken from another project already approved by Congress. Every one of those projects has patrons and sponsors. And because most military contracting goes to red states, most of the reshuffled dollars will be removed from red states.
Among the projects at risk: a $32 million vehicle-maintenance shop in Fort Campbell, Kentucky. I have no idea whether this project is supremely necessary or a pork-barrel boondoggle. But I bet Senate Majority Leader Mitch McConnell strongly believes it is the former. What will Senator Thom Tillis of North Carolina—up for reelection in 2020—think if Trump pulls funds from the approved but not yet contracted project for a new aircraft hangar at the Marine Corps’ air station in his state? And so on down the line.
Senate Republicans have submitted to a lot since 2017. Trump might at last have discovered their breaking point.The fourth catch is constitutional. House Speaker Nancy Pelosi has pointed out that Democrats stand ready and eager to make use of the emergency-powers precedent being created here if they reclaim the White House in 2020. Yet once the courts get done, Trump’s precedent may actually set new limits on presidential emergency powers.Remember, the most binding Supreme Court ruling on emergency powers delivered a rebuke to presidential power: the 1952 steel-seizure case Youngstown Sheet & Tube Company v. Sawyer. In the context of a real emergency, the Korean War, President Harry Truman tested the outer limits of his power to seize private property—and got told no. The case governs to this day.
Trump’s assertion of emergency powers does not go anywhere near so far as Truman’s. He’s messing with congressional prerogatives, not private property—but he’s inviting another sharp rebuke, one that will bind future presidents, too. Those future presidents may someday want for an authentic public purpose the powers Trump will shortly squander for crass political motives. To rebuke Trump’s abuses, the better presidents of tomorrow will be denied a power they might have used for good.Trump has been hoisted high by his vision of the presidency as the world’s highest-rated reality-TV drama. His instinct to escape every previous episode’s failure by creating a new drama for the next episode has served him well to date. But reality TV is ultimately not reality. Government is very real, and hedged by realities. Reality is now exacting its retribution upon the Trump presidency. Ahead looms the fate that the reality-TV star must most dread: the cancelation of the whole crazy series.