Conservatives Will Live to Regret This

With his national-emergency declaration, Trump has crossed the Rubicon.

Donald Trump declares a national emergency
Jim Young / Reuters

About the author: Noah Rothman is the associate editor of Commentary Magazine and the author of Unjust: Social Justice and the Unmaking of America.

The president seems to think he’s found a way out of the crisis. No, not the “crisis” at the border—if the word still has any universally accepted definition, there is no crisis at the border.

According to U.S. Customs and Border Protection, 2018’s apprehensions along the southwestern border were the fifth lowest in nearly half a century. Last year’s records show modest growth from 2017, when apprehensions were lower than at any point since 1972. The administration notes an increase in the number of family units and unaccompanied minors crossing the border from Guatemala and Honduras. But the number of border-crossing families and children originating from Mexico and El Salvador has declined precipitously since 2016, and more juveniles crossed the border into the hands of patrol agents under George W. Bush. His administration coped with that influx despite having fewer available resources.

For Donald Trump, the crisis isn’t humanitarian but political. It is a crisis of confidence. He staked his reputation on constructing a wall along the southern border, and he’s not going to get one. Republicans in Congress had two years to appropriate the $25 billion Trump initially sought for a contiguous partition along the border, and they passed on it at every available opportunity. Trump transformed the 2018 midterm elections into a referendum on the notion that a humanitarian disaster was unfolding at the border and the wall was the only answer. Voters were not convinced.

Having lost face at the polls, Trump sought to demonstrate who’s still the boss by demanding tribute from ascendant Democrats—a mere $5.7 billion, not for a wall per se, but for “steel slats” along a few miles of the border. He didn’t get it. Indeed, Trump will sign a compromise today that appropriates only $1.375 billion for fencing and border-security enhancements—less than what the GOP-led Congress was prepared to allocate at the end of 2018. That compromise bill also imposes a 17 percent reduction on the number of beds available in Immigration and Customs Enforcement detention facilities, which would be an irresponsible thing for the president to sign amid a genuine immigration crisis.

Amid this unambiguous series of defeats, Trump resolved to get his border-wall funding by other means: He said in a rambling press conference today that he would invoke the National Emergencies Act, under which he plans to circumvent Congress and reallocate approximately $8 billion apportioned to the Treasury and Defense Departments to construct his barrier along the border with Mexico. This is a staggeringly cynical maneuver not because it will finally hand Trump the MacGuffin on which he campaigned in 2016, but because it most likely won’t.

Legal observers expect the courts to impose an injunction on this national-emergency declaration as soon as it is made. Indeed, the president made the judiciary’s work easier on Friday when he admitted that he “didn’t need to do this,” a confession that there is, in fact, no ongoing national emergency. A judicial quagmire is the GOP’s fondest hope. That way, Trump can say he’s fighting for his wall in every possible way, and Republicans in Congress can cede their authority to check the executive branch by insisting that the whole matter is out of their hands. And all without ever having to expropriate private property along the border or prove the dubious efficacy of a physical wall. Everybody wins!

This is an especially dangerous game, in part because it further degrades the Madisonian scheme in which each branch of government is supposed to be a jealous steward of its constitutional prerogatives. Articles I and II seem especially eager to surrender their authority to Article III, if only to evade responsibility for having to execute their responsibilities. Trump’s game is dangerous, too, because it is contemptuous of Congress’s verdict on this domestic policy dispute. The president will radically expand the definition of what constitutes an emergency, the relevant statutes of which are supposed to be applied only when Congress cannot be consulted on the matter in a timely fashion. By appealing to the military to resolve a domestic policy dispute, Trump is actively eroding America’s sense of civic propriety.

This isn’t the first time the president has appealed to emergency powers reserved for periods of extraordinary duress, simply to achieve a petty political objective. When he imposed tariffs on heavy-metal imports from America’s trade partners, Trump invoked Section 232 of the Trade Expansion Act of 1962. That provision is explicitly reserved for a national emergency, such as a natural disaster or war. But Trump promised his constituents in the manufacturing sector that he would protect their jobs, and so he had to label America’s trading partners—including allies like Japan—as threats to American national security.

As Trump’s trade war heated up and its negative effects were being disproportionately absorbed by American farmers and ranchers, another core constituency, the president appealed to national security again to ease their pain. His administration offered aid to affected sectors of the agricultural industry to the tune of $12 billion by citing the Agriculture Department’s broad authority to stabilize that sector of the economy during times of tumult.

Though he eventually abandoned the move, Trump planned to invoke Section 202(c) of the Federal Power Act to force American energy markets to purchase electricity from inefficient coal and nuclear plants at above-market rates. This provision is exclusively reserved for American presidents amid a national cataclysm that renders Congress inaccessible, but the Trump administration sought to use it only to provide this favored constituency with a federal bailout.

Even if Trump’s decision to invoke national security to erect his wall is stopped indefinitely by the courts, we may look back upon this moment as the crossing of the Rubicon. Congressional Democrats aren’t even being coy about their desire to expand on this precedent when their party regains control of the White House. “Want to talk about a national emergency?” asked Speaker Nancy Pelosi. “The epidemic of gun violence in America. That’s a national emergency.” There is no shortage of Democrats who are similarly convinced that climate change also represents an existential crisis, to say nothing of a national emergency. Many have endorsed draconian anti-industrial policies that are unlikely to pass in Congress as the only rational remedy to the crisis. The next president will undoubtedly face pressure from his or her core constituents to apply the precedent Trump is setting to their domestic policy priorities.

Maybe the most pernicious effect of the president’s extraordinary maneuver here is how he will drag complacent Republicans along with him into the abyss. Once invoked, 50 U.S. Code § 1622 on national emergencies sets into motion a series of events, including an almost immediate vote by the House of Representatives ratifying the president’s decision. The House will certainly reject Trump’s national-emergency declaration, sending that motion to the Senate, where it cannot be tabled. And that GOP-controlled chamber will be compelled to support Trump’s transparently political debasing of constitutional norms, not because of support for Trump, but because of pressure from Majority Leader Mitch McConnell.

Within hours of the revelation that Trump would use extraordinary powers to build his wall, Republicans in the Senate went on record opposing the move. “I wish he wouldn’t have done it,” said Senator Chuck Grassley. “I’m not really for it,” Senator Rand Paul agreed. This was a “dramatic expression” of emergency powers, a “bad idea,” and entirely “unnecessary,” said Senators Ron Johnson, Marco Rubio, and Lamar Alexander, respectively. “I think it’s a dangerous step,” averred Senator John Cornyn. “It undermines the role of Congress and the appropriations process,” Senator Susan Collins agreed. But this apprehension is apparently not shared by McConnell, who has proved an effective shepherd of his conference.

Let’s not mince words: Backing Trump in this moment is not the prerogative of an institutionalist, which the majority leader claims to be. It is the prerogative of a partisan operator motivated, above all, by deference to a fleeting political imperative: avoiding another government shutdown.

This is a moment of extreme national cowardice. America’s governing institutions are abdicating their authority in pursuit of expedience and amid a craven scramble to save face. A precedent has been established that all Americans, but conservative Americans in particular, will long regret.