It has now been more than three weeks since President Donald Trump first began his public flirtation with declaring a national emergency as a way of getting funding to build a wall on the southern border. At first he seemed intent on declaring an emergency immediately. Within days, though, he began saying that he was in no hurry to pull that trigger. On Friday, even as he abruptly caved and allowed the government to reopen for three weeks without wall funding, he again threatened to declare an emergency—but only if Congress doesn’t give him what he wants.
Trump no doubt thinks he looks more reasonable if he gives Congress plenty of time to act before declaring an emergency. He might also think that Congress’s repeated failure to provide funds shows the need for emergency action. The truth is the exact opposite. By giving Congress time to definitively establish its unwillingness to fund the border wall, Trump is both taking away any legitimate justification for emergency action and proving his intent to subvert the constitutional balance of powers.
Here’s how the legal process for emergency powers works: Under the National Emergencies Act, passed by Congress in 1976, the president has broad discretion to declare a national emergency. Upon issuing the declaration, he gains access to special authorities provided in 123 provisions of law that have been enacted over many decades. These laws authorize presidential action across all areas of government, from military deployment to agricultural exports to energy production. Like an advance medical directive, in which a patient specifies actions a doctor may take in a range of extreme situations when the patient cannot make her wishes known, they represent Congress’s best guess as to what powers a president might need in a crisis that is unfolding too quickly for Congress to respond.