last updated: 15 February 2019 (approximate reading time: 7 minutes; 1353 words)
Congress has the power to pass legislation in order to create laws and budgets for the nation. The president, as chief executive, then executes those laws and budgets. Sometimes, however, situations require immediate action and can’t wait for congress to convene, draft legislation, debate said legislation, vote on said legislation, and once the legislation has been passed by both houses of congress, ultimately send the legislation to the president to sign into law and then execute. Sometimes, a natural disaster or national security threat demands immediate expenditure and action. In these cases, the president can declare a “state of emergency” to immediately release discretionary and previously allocated funds for urgent use.
This is a generally accepted (and desired) presidential power. It was used by both President Bushes for war funding, and by President Obama to allocate resources to the Swine Flu epidemic. However, President Trump’s invocation of a state of emergency to build his wall is a blatant executive overreach.
While what specifically constitutes an “emergency” is left intentional vague in the law, one of the determining factors is urgency. If something is a slow or long-term enough issue that it can be funded by the usual course of congressional budget allocations, then it should be. Emergencies are for those things that must be addressed faster than the budget process allows for.
President Trump has had over two years to convince congress to fund his border wall. Even with a Republican controlled congress, he was not able to, because even his own party has been reticent to throw billions of dollars into a pet project that is nationally unpopular, even among Republicans outside Trump’s own, narrow base. Never mind the fact that border walls don’t work—most of the illegal traffic Trump drums up to terrify his base into supporting him come in through ports of entry, not areas in which a wall would help.
There’s also the fact that building a wall on the southern border to keep out brown people appears racist. But then, the Trump Administration appears racist on many fronts, so this is no exception or surprise.
So if this state of affairs has existed for two years, why is there suddenly an emergency now? The only thing that has changed is that now the Democrats control half of congress. So until now, even though his own party wouldn’t fund his wall, he thought he had a chance. Now that the Democrats control half of it, he knows he can’t. (he thought that if he shut down the government, maybe the Democrats would capitulate, but they did not). So the “emergency” is that Trump realized that only his Sturmabteilung supported the wall, and so rather than doing the work of building consensus and convincing congress the merits of his position, he threw a tantrum and declared an emergency.
Now Trump has declared a state of emergency at the southern border in order to free up $8 billion dollars for his wall. (The wall that he promised on the campaign trail that Mexico would pay for, but that’s another essay…). But it’s not quite that simple. There is political recourse, and legal recourse, and President Trump will have to contend with both before he can spend any of that $8 billion.
First, Congress has the ability to pass legislation cancelling his state of emergency. This would require one house of congress—in this case, clearly the Democratic-controlled House of Representatives—to pass legislation cancelling the state of emergency. Once the House passes this, the law says that due to the urgent nature of emergency declarations, the Senate would have to have a vote on the bill within 18 days. If the Senate then passes the bill, it goes to the president’s desk to sign. When signed, the emergency is officially canceled.
Will the Democrats in the House use this tack?
There are solid political reasons to do this. First of all, the House wants to prove that the Democrats are the party of responsible governance, and polls show that 2/3rds of the nation are opposed to this Trumped up border emergency. The Democratic representatives want to flex their muscles and show that they are fulfilling their role as a check on executive power. Cancelling the state of emergency would be a very popular move in the eyes of the Democratic base, so their voters would approve wholeheartedly.
Also, a bill canceling the state of emergency stands a very good chance of passing the Senate as well. It only takes four Republican Senators to vote with Democratic Senators to pass the bill, and so far six Republican Senators have actively spoken out against it. Moreover, Senate Majority Leader Mitch McConnell had privately advised against it, because he knew it would divide his party, and he understands that this is gross executive overreach (no congressional leader is going to feel great about de-powering his own body). So it’s very possible that there already are enough Republican Senators from “safe seats” to pass the bill, and that McConnell may give them permission to “fall on their sword” and vote with the Democrats, which will give the others cover to vote with the president while still knowing that the state of emergency will go down.
That said, there’s also good reasons for the House Democrats not to use this mechanism. For one thing, even if they were successful in getting a bill to the President’s desk, he would very likely veto it. Once the bill was vetoed, congress would then need a two-thirds vote in each house to override the veto. It would be very difficult, if not impossible, to find that many Republicans willing to go against their own chief executive.
Moreover, there are some Democrats who are looking beyond Trump’s wall, and salivating over all the ways in which a liberal president could use the same power: she could declare states of emergency relating to climate change, gun violence, health care, civil rights, and more. While Trump can’t see the repercussions of declaring an “emergency of convenience” others do, and imagine using it for their own policies.
In addition to political recourse, there is legal recourse as well. The Trump administration can be sued by liberal rights groups, non-profits organizations, and perhaps House Democrats themselves. They can posit that there is not, in fact, an emergency, and nullify the declaration that way.
In this scenario, the onus is on the Trump Administration to prove that there is a state of emergency. This will not necessarily be easy, since the fact that they didn’t declare one until politically expedient goes against their argument. Moreover, Trump said in an interview with NBC’s Peter Alexander that “I didn’t need to do this,” which is an overt admission in a public forum that there is no urgency, no emergency.
If the legal route is chosen to cancel Trump’s state of emergency, it will undoubtedly go all the way to the Supreme Court, where the outcome is anything but certain. The Court is currently weighted toward the conservative side, however Chief Justice Roberts, while conservative, also votes with the legacy and legitimacy of the Court in mind. So while the conservative majority on the courts seems to suggest that they would uphold Trump’s emergency, if Roberts believes that such a partisan ruling would tarnish the court, he might side with the liberals.
Whether Trump’s declaration of a state of emergency is fought on one or two fronts, it is extremely likely that the fight will last well into 2020. This means that the funds will be tied up until this has been conclusively determined. Depending how long this fight stretches out, it could find itself as a major 2020 campaign issue. Considering how unpopular the wall is with the American people in general, the fight might result in Trump dropping the wall in order to staunch the approval rating slide, or even losing re-election. In either case, the wall won’t end up ever being built; in fact, it may be what ends up bringing Trump down. Time will tell.
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