During his speech on Tuesday night, President Trump refrained from declaring a national emergency to justify unilateral construction of his wall along the U.S.-Mexico border. But, speaking to reporters on Wednesday, he made it absolutely clear that he still might, if Democrats don’t agree to fund it:
Reporter: Why didn’t you announce it last night, and when might you —
Trump: Because, I think we might work a deal, and if we don’t, I may go that route. I have the absolute right to do national emergency if I want.
Reporter: What’s your threshold?
Trump: My threshold will be if I can’t make a deal with people that are unreasonable.
In other words, according to the president, the question of whether he exercises his authority to declare a national emergency to circumvent Congress depends on whether Congress will do his bidding.
Interestingly, by saying this, Trump may have just undermined his legal case, should he go this route and find it challenged in court.
To be clear, it is possible that Trump does have this power. Legal experts believe there are statutes that may confer on Trump the authority to direct military officials in a national emergency (as declared by the president) to move money toward purposes Congress did not explicitly authorize — so long as they are essential to national defense or supporting the armed forces. The idea, as the New York Times’s Charlie Savage explains, is to “give presidents the flexibility to redirect funds in a crisis.”
But it would be subject to legal challenge, which would then determine whether the relevant statutes actually do confer the authority in question in this particular situation. And another question this would focus on is whether in this situation there is an actual national emergency, as Trump declared, or whether he declared one on false pretenses.
That’s where today’s quotes could come in. Trump seemed to be saying that he would need only to declare a national emergency if Democrats don’t give him what he wants. The Post’s Aaron Blake talked to a legal expert who points out that this could be used against the president in court. Trump appeared to reveal that this isn’t an urgent enough matter to act right now, and instead is merely dangling it as a threat to force the hand of Democrats, and will act unilaterally later only if that fails. This undermines the notion that this is an actual emergency that urgently requires untying Trump’s hands to deal with it. Of course, Trump could argue that he genuinely had seen an emergency, but had hoped to address it with Congress’ help and acted when that failed. But this would get sorted out in court.
Ultimately, the big question this all raises is whether it would actually matter legally if Trump did declare an emergency in total bad faith. We all know Trump is completely fabricating the idea of a security emergency at the border for nakedly cynical purposes. The facts on the ground don’t support any such thing, and we already saw Trump literally send in the military as a prop to concoct a made-for-TV visual of this supposed emergency, to bolster the GOP’s closing campaign message. Take the $5 billion that Trump has demanded for the wall: Has anyone figured out where that number came from or how Trump decided this was the precise amount needed to tamp down this emergency?
But the rub of the matter is that presidents have a great deal of discretion to say what constitutes an emergency. And as the Brennan Center’s Elizabeth Goitein points out, even if the courts concluded that Trump had fabricated one on false pretenses, they still might be reluctant to rule on this basis, because that might constitute substituting their own definition of an emergency for the president’s.
The thing is that there are good reasons for awarding this discretion to the president. You want courts to be reluctant to substitute their own policy judgments, and the president is theoretically accountable to the people via elections. What happens, though, when the president’s decisions are premised on false pretenses constantly? Think back to Trump’s travel ban. That was nakedly little more than a policy designed to fulfill a campaign promise that was an outgrowth of crowd-pleasing effusions of anti-Muslim animus, but the Supreme Court upheld it on the grounds that it was neutrally about national security on its face, actual rationale be damned. The problem is it isn’t so obvious that this was a wrong decision, because how to proceed here is complex and difficult.
The truly troubling question is whether Trump has located a hole in our system: Is it equipped to handle a president who operates in such obvious, relentless, and bottomless bad faith, all the time, on just about everything?