Scholars have engaged in an interesting debate regarding the legal basis for President Trump declaring there is an “emergency," which in turn could trigger two specific statutes — 10 U.S. Code Section 2808 and 33 U.S. Code Section 2293 — that allow monies to be shifted from military building projects to Trump’s vanity project, the wall. (Senate Republicans have begun to throw cold water onto the idea.)
Does Trump have inherent Article II powers to do this, or must he rely on the statutes? What level of scrutiny will the courts apply? These and other legal issues are worth exploring, but for now, I want to focus on a more fundamental problem: There is no emergency, and the best witness for this assertion is Trump.
To begin with, it is not clear what the emergency is that Trump would claim. Border crossings are a fraction of what they were at the beginning of the 2000s. Crime is down, and statistical evidence demonstrates that immigrants are less likely to commit crimes than the U.S.-born population. It doesn’t seem like the best bet to claim that border crossings raise the risk of terrorism or a crime epidemic.
Moreover, Trump said on national TV that the crisis was “humanitarian,” referring to the asylum seekers. As many have noted, however, the wall would do nothing to solve this; these people aren’t trying to sneak into the country. They are presenting claims for asylum under existing law.
So the first problem for Trump, then, is that it is far from clear which emergency he is manufacturing.
Whichever emergency he decides upon raises the question as to when it began and why it has been going on so long. Trump did not declare an emergency in his first year in office or when the continuing resolution to get us to December ran out. He did not declare an emergency before the midterms when the — cue the scary music! — caravan was approaching. He didn’t declare an emergency when he was negotiating with Congress or when he suggested that he would sign a clean continuing resolution (before he said he wouldn’t). When exactly did this emergency arise?
Trump gave the game away when he said the emergency would be upon us if Congress didn’t agree to the wall in negotiations. Sorry, it doesn’t work that way. If waiting two years, waiting for a continuing resolution to run out, negotiating, going on TV, reaching a deal, waiting for votes and so on are all part of an acceptable process, we don’t have an “emergency"; we have a political fight (or a public relations disaster, depending on your perspective). Moreover, since the building of the wall, including the laborious environmental requirements and the eminent domain proceedings, could take years, how is this a solution to any “emergency"? You have to redefine “emergency” as something the president really, really wants to do and would take a long time anyway.
As a logistical matter, the emergency declaration gets tricky. Consider the process: Trump says we have an emergency, so fine, reopen the government. Congress passes the funding through the end of the year; Trump signs it. Within a nanosecond, multiple parties are in multiple federal court venues seeking a temporary restraining order to prevent Trump from moving funds. Chances are, some court will grant such an order. All the federal workers are back to work, and the appeals continue. What happened to the “emergency”? The issue of urgency, which was always going to be a problem, remains — and Trump’s leverage is gone. (Maybe that is what he wants to get out of the box he climbed into, but you would think that Ann Coulter or Rush Limbaugh would be smart enough to see that Trump intentionally took a dive. Then again, perhaps I give them too much credit.)
In sum, the law is tricky enough when it comes to declaring an emergency for a legitimate emergency. It’s super hard when the precise emergency isn’t clear, when it’s not an emergency, when the president implicitly told us it is not an emergency and when the very process of litigating would demonstrate there is no urgency to this project.
To be certain, there also are tremendous political hurdles to a declaration of emergency — including, but not limited to, opposition from Republicans. The Republican ranking member on the House Armed Services Committee, Rep. Mac Thornberry (R-Tex.), not only pushed back against using emergency powers but also let on that the wall is not a national security issue. (“I’m opposed to using defense dollars for non-defense purposes. ... We should fund the rest of the government and improve border security, leaving the political posturing behind.”) You might see additional Pentagon resignations over this stunt. (The Republican congressman with a longer stretch of border in his district than anyone else, Rep. Will Hurd of Texas, also says there is no emergency and a wall wouldn’t help anyway.)
If there are any constitutionally sentient Republicans, they would also quickly figure out that if they go along with a non-emergency emergency justifying a wall, they will be defenseless in the face of emergencies (e.g. climate change, people going without health care) that future Democratic presidents will be able to cite.
No one knows whether an irrational president who has cornered himself will act in an even more irrational and counterproductive fashion. At some point, you would think a whole bunch of Republican senators who aren’t irrational (lacking courage is not the same thing) will figure out that their careers are over if this goes on much longer and the brakes on future Democratic presidents will be removed if they support declaration of a non-emergency emergency.
Really, aside from being constitutionally offensive, the idea of an emergency declaration is just dumb and legally improbable. Well, I guess that means Trump might try it after all.
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