After failing for two years to persuade Congress to fund a wall on the southern border, President Donald Trump on Friday said he will declare a national emergency and reallocate some $8 billion to build the wall through executive fiat.
Trump announced the move in a rambling, free-associative appearance in the White House Rose Garden that was more MAGA rally than presidential announcement. Even by the standards of this president, his remarks were confusing, untruthful, and often off topic, with strange ad-hominem attacks on other politicians and sharp exchanges with reporters. Despite claiming that the nation faces an acute crisis that requires immediate attention, the president meandered through a long preamble about trade deals and North Korea. When he finally got to the point, he struggled to stay focused.
“We’re going to be signing today and registering national emergency,” he said. “And it’s a great thing to do, because we have an invasion of drugs, invasion of gangs, invasion of people, and it’s unacceptable. And by signing the national emergency, something signed many times by other presidents, many, many times, President Obama, in fact, we may be using one of the national emergencies that he signed having to do with cartels, criminal cartels. It’s a very good emergency that he signed … And what we really want to do is simple. It’s not like it is complicated. It’s very simple. We want to stop drugs from coming into our country. We want to stop criminals and gangs from coming into our country. Nobody has done the job that we have ever done.”
Yet Trump also undermined his own case for the national emergency, effectively saying the declaration was all about political expediency.
“I can do the wall over a longer period of time. I didn’t need to do this. I would rather do it much faster,” the president said, an astonishing acknowledgment that could come back to haunt him in court.
It was one of the least coherent appearances Trump has made in a presidency noted for its incoherence. Yet the circus in the Rose Garden threatened to distract from a major policy announcement.
During a briefing Friday morning, acting White House Chief of Staff Mick Mulvaney said that Trump would take $600 million from a Treasury Department forfeiture fund, $2.5 billion from a Defense Department counter-drug fund, and another $3.6 billion from Pentagon military-construction money. Only the construction funds require an emergency declaration. Trump will not take money from disaster-relief funds, an idea that had been discussed.
The move is sure to draw legal challenges, and might not take effect exactly as Trump described. But the fact remains that the president has declared a national emergency in order to save face with anti-immigration members of the conservative media and his base, having been roundly defeated in a joust with Congress over funding. In essence, the president has created a new crisis to get himself out of a previous crisis—which he also created. And the timing of Trump’s announcement, after months of equivocating and congressional debate, hardly supports the idea of an acute crisis.
There is an irony to Trump’s declaration. Prior to being elected, Trump aggressively criticized then-President Barack Obama, saying that he could be impeached for using executive orders to change immigration policies.
“Now he has to use executive action and this is a very, very dangerous thing that should be overwritten easily by the Supreme Court,” Trump said in 2014. The following year, Trump said, “The whole concept of executive order—it’s not the way the country is supposed to be run. He’s supposed to go through Congress and make a deal and go and talk to people and get the guys in there and, you know, whether you’re Republican or Democrat, is supposed to all get together. He’s supposed to make a deal, but he couldn’t make a deal, because it’s not his thing.” During the presidential campaign, Trump promised to withdraw Obama’s executive orders and accused him of abuses. Since becoming president, however, Trump has become a prolific user of executive orders.
Yet by declaring a national emergency, Trump is doing something more aggressive still. There is nuance to the situation: As the White House points out, Trump is using powers granted to him under a law passed by Congress in 1976, and not creating powers out of thin air. But it’s not clear that this situation fits within the letter of the law, and it’s all but impossible to say that it follows the spirit of the law.
Any declaration of emergency seems by definition distressing—either the president is announcing a bona fide emergency or the government is creating an opportunity for abuse of power, or both. The very point of emergency provisions is to circumvent standard protections and procedures. While that should be concerning to citizens in any case, it’s especially worthy of scrutiny coming from Trump, a president who has disregarded restraints, procedures, and laws even without claiming extraordinary powers; acted like the ruler of a one-party state; and expressed admiration for authoritarians.
As Elizabeth Goitein explained in The Atlantic recently, the 1976 National Emergencies Act superseded a range of laws that were designed to grant the president leeway to respond to an acute crisis. Congress concluded that there are times when the country needs to respond faster than the standard legislative process can act. Mulvaney said Friday that Trump is simply invoking this law.
“It actually creates zero precedent,” he said. “This is authority given to the president, given to the law already. It’s not like he didn’t get what he wants, so he’s waving his wand.”
This is only half true. The authority does exist, and critics saying otherwise are exaggerating. But it’s also exactly like he didn’t get what he wanted, so he’s waving a wand. There’s a legitimate argument to be had over whether a serious problem exists at the border, though the case that there is one is weak. While illegal immigration to the United States is rising, it remains well below the recent peak, in 2000. Trump allies have argued that recent incidents where the Border Patrol fired tear gas across the border show the menace posed by immigrants; however, as Press Secretary Sarah Sanders pointed out, tear-gassing was common during the Obama administration. The White House has also offered up a bogus statistic about terrorists trying to enter the United States.
But there’s no case to be made that Congress hasn’t had a chance to act. Trump has been asking lawmakers to fund his wall since he took office, in January 2017. He failed to persuade even a unified Republican Congress to give him the money. (On Friday morning, Trump repeatedly criticized those in the last Congress who didn’t push hard enough to fund the wall, a clear reference to former House Speaker Paul Ryan.) Since December, two Congresses—one with unified GOP control, and then another with a Democratic House and Republican Senate—have been extensively considering border funding, and they have decided, clearly, not to give Trump the money. The Constitution grants Congress the power to appropriate, and it has decided at length what it wants—a fact Mulvaney acknowledged.
“They’re simply incapable of providing the amount of money necessary in the president’s eyes to address the present situation at the border,” he said. But it’s impossible to believe that Congress passed the National Emergencies Act for the purpose of the president sidestepping the Constitution simply because Congress decided it disagreed with him.
This is a fact other Republicans have acknowledged. Senator Susan Collins of Maine has called the emergency “dubious from a constitutional perspective.” Senator John Cornyn of Texas has expressed worry that a future Democratic president could use unilateral power in ways that would make Republicans uncomfortable. Senate Majority Leader Mitch McConnell has said in the past that he hoped Trump would not declare an emergency. Yet on Thursday, McConnell announced he would support the declaration.
While the president does not need Congress’s say-so to declare an emergency, Congress does have the right to override him after the fact, with a vote of both houses. The House will likely do so, but it’s unclear whether enough Republicans in the Senate would join with Democrats to pass a measure there as well. In any case, Josh Dawsey of The Washington Post reports that Trump would veto such a resolution—which would be the first veto of his presidency.
Trump predicted in the Rose Garden that he would triumph in litigation.
“I’ll sign the final papers as soon as I get into the Oval Office,” he said, in a peculiar singsongy voice. “And we will have a national emergency. And we will then be sued and they will sue us in the Ninth Circuit 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.”
Ironically, even though Trump’s lengthy vacillation on whether to declare an emergency shows that the crisis is not as acute as he claims, it’s also helped inure the public to the declaration. But the declaration is still another huge violation of existing norms and constitutional protections.
The president appears single-mindedly focused on the wall, an unusually sustained focus for him. Given the concrete goal involved, this is probably not a situation in which Trump is likely to use the emergency as an excuse to take other, more extraordinary actions, such as declaring martial law or ordering military action. Moreover, Trump’s biggest projects have been repeatedly bedeviled by failures of execution and follow-through, though even a limited impact in this case could be substantial. The point is that he could do those things. That’s a dangerous tool in the hands of a scrupulous president with great respect for restraints on his power—much less Trump.