National Emergency

“I didn’t mean, ‘Please write me a check,’”

Donald Trump on his pledge to make Mexico pay for the wall. January 10, 2019

“I will take the mantle…I will be the one to shut it down. I’m not going to blame you for it.”

Trump during his December 11^th on-camera White House meeting with Democratic leaders

If the Dems don’t vote for his wall? “‘I have the absolute right to declare a national emergency,’ Trump told reporters outside the White House on his way to McAllen, Texas, adding that his lawyers advised him that he could. ‘If this doesn't work out...I would almost say definitely.’” Politico.com, January 10^th.

If the Supreme Court decides that Donald Trump can use the National Emergencies Act of 1976 (NEA) to appropriate existing military funding to build his wall, where his own cabinet-level agencies challenge the very assumption of any real semblance of a real emergency, then the Court will have altered the Constitution to hand over to the President the requirement that all appropriations bills must originate in the House of Representatives. Trump may argue that he would only be diverting money that Congress already appropriated, but clearly Congress did not appropriate money for the “wall.” America and democracy would be the big loser. If the Court instead rejects Trump’s ability to force his wall this way, Trump is over. There is a lot at stake.

Importantly, the NEA is not part of the U.S. Constitution. Berkeley School of Law Dean Erwin Chemerinsky tells us: “Thankfully, the United States Constitution does not give the president emergency powers, and it has no clause that allows the president to suspend the Constitution when he perceives an emergency. Quite the contrary, the Constitution was deliberately written to keep government officials from claiming dictatorial powers in the name of national security or emergency management.” Los Angeles Times, January 7^th. The NEA is purely statutory, a law passed by Congress that is subject to the Constitution.

But Trump’s lawyers are paving the road for a court that wants to find reason to support the president, creating hooks and optics to make it appear as if the President carefully examined the risks and determined that there was a sufficient humanitarian and national security crisis to be able to declare that statutory emergency. How does a wall address the “humanitarian crisis”?  Step by step. His trip to McAllen, Texas. His meetings with Congressional leaders. His statement of false statistics and distorting facts, which in fact reflect how border traffic of undocumented aliens has been slowing for years, not rising. Sorry, Donald, those “alternative facts” are “fake news.”

VP Mike Pence has made it clear that there isn’t even going to be any offer of allowing Dreamers to stay in the U.S. as a horse-trade for Trump’s increased ask of $5.7 billion for a hard wall between the United States and Mexico. It’s now “take it or leave it… and if you leave it, I will keep a quarter of the government shut down.” According to every poll I have seen, most Americans now blame just Donald Trump for the shutdown (he was once willing to claim as his own). He has never doubled down with one house of Congress completely in Democratic control. 

But what about the statute Trump is relying on. Chemerinsky continues, beginning with a time before the NEA was passed: “Trump is not the first president to try to claim emergency powers. During the Korean War, President Harry Truman ordered the seizure of steel mills when a labor dispute threatened to close them. Truman argued that national security and the war effort depended on continued steel production. But in Youngstown Sheet & Tube vs. Sawyer, in 1952, the Supreme Court ruled against Truman, concluding the president had no authority under the Constitution or federal laws to do this even in a wartime emergency…

“The president is likely claiming authority to fund building the wall under the National Emergencies Act of 1976, but that law actually was meant to limit the ability of the president to claim powers by declaring a national emergency. One provision says that if there is a national emergency, funds in the Defense Department budget that are not “obligated” can be used for construction projects to support the armed forces. It says: ‘Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces.’

“The clear purpose of this was to ensure adequate space for military mobilization in the case of an emergency requiring a large number of troops. It is hard to imagine a court finding that there is an emergency within the meaning of the statute in this situation where nothing has changed. This is about Trump wanting to carry out a campaign promise, not an emergency that has suddenly arisen. Moreover, the statute is about construction projects to support the armed forces. Trump’s wall is not about that at all.

“Any attempt by Trump to build the wall without congressional approval would be a grave threat to separation of powers. Under the Constitution, every major action of the federal government generally should involve two branches of government. Enacting a law, including adopting a budget, requires Congress passing a bill and the president signing it, or Congress overriding a veto. Going to war requires Congress declaring war and the president, as commander-in-chief, waging it. Enforcing a federal law requires that the executive branch bring a prosecution and the judiciary convict.

“No Supreme Court decision in U.S. history ever has approved the ability of the president to circumvent these checks and balances by spending a large amount of money without congressional approval. That would be a dangerous precedent and one inconsistent with a Constitution founded on the idea of checks and balances.” LA Times. 

But there are arguments to the contrary as well: “Yale University law professor Akhil Amar said a judge may well be reluctant to conclude that the president’s decision to build a barrier at the border does not involve the military or the armed forces. ‘Trump sees this as putting up barriers to repel invaders at the border,’ he said. ‘And about one-third of country sees it that way.’

“Moreover, bringing a lawsuit in court requires an injured plaintiff who has standing. And the court has ruled that neither lawmakers nor taxpayers have standing to sue over how the government spends money. 

“‘Factually it is ludicrous to claim this is a national emergency, but who would have standing to challenge it?’ said Syracuse University law professor William Banks. ‘It could be a property owner who says his land has been diminished in value.’ If so, however, such a case may take time to develop… It is not clear that the Supreme Court will be willing to take up such a dispute or stand in the way of the president.” Los Angeles Times, January 11^th. If Trump can use the NEA to build his wasteful medieval wall, one that can easily be breached, it would be an open invitation for all future presidents to ignore Congress in the same way.

The President also floated another funding source for his manufactured “crisis,” one sure to rile up the Democrats: divert the emergency aid earmarked for the damage from Hurricane Maria to U.S. Territory of Puerto Rico. Who needs a Congress, when the President can make the relevant appropriations decisions completely on his own… or would that be a dictatorship? Was it even real?

In the end, one way or another, this is a bubbling constitutional crisis. Overlooking even the federal employees staggering without a paycheck or all those whose lives depend on the services that have shut down, who we are as a nation hangs in the balance? But was this just an empty Trump threat or more? On January 11^th, Trump backed off… a bit: “What we're not looking to do right now is national emergency… I’m not going to do it so fast,” he said at a White House roundtable with law enforcement officials.

              I’m Peter Dekom, and it takes a pretty arrogant autocrat to bring the country he is sworn to support to bring us to this level of confrontation, even if it is an unworthy bluff.