“We have an invasion of drugs, an invasion of gangs, an invasion of people, and it’s unacceptable,” Trump said. In so doing, Trump made a claim that is subject to examination: That those things constitute a national emergency, justifying his appropriation of extraordinary powers to address it.
What’s at stake in this battle is a simple dilemma: Can the president declare a national emergency, and appropriate all the powers that this confers on him, when there isn’t any national emergency?
“That is the fundamental question,” Elizabeth Goitein, who has extensively researched national emergency law for the Brennan Center for Justice, told me.
Or, to put the question somewhat differently: Can the president declare a national emergency, no matter what the actual facts on the ground show? Is there any point at which presidential bad faith matters?
The basic problem we face right now in this regard was created by Congress. The post-Watergate National Emergencies Act, or NEA, places various constraints on the powers the president has when he declares a national emergency. For instance, it requires the president to say which other statute he is relying on to exercise the particular authority he plans to employ under his declared emergency.
The NEA also creates a mechanism by which Congress can terminate the emergency by passing a resolution through both houses doing that. The House is likely to pass such a resolution, but it’s unclear whether the Senate will do so. Even if the Senate did pass it, Trump would veto it anyway, though the House still should try this to get GOP senators on the record.
But the NEA doesn’t define what an emergency is, giving the president tremendous discretion to do that himself. The core question we now face is whether that discretion is limitless.
There are multiple ways to challenge Trump’s emergency
There will be lawsuits against Trump’s national emergency declaration. Protect Democracy and the Niskanen Center just announced that they will represent local border communities in such a lawsuit.
There are several basic ways of challenging Trump’s national emergency in court. The first is to challenge the idea that the statute Trump is invoking to find the precise power he wants to exercise actually does give him that power.
According to multiple reports, Trump is relying on a law that allows the defense secretary to “undertake military construction projects” that are “not otherwise authorized by law” if they are “necessary” to support “use of the armed forces.” This would reportedly allow him to tap some $3.5 billion in funds.
Robert Chesney, a law professor at the University of Texas at Austin, tells me that this is vulnerable to challenge, because it requires that this “use of the armed forces” is actually being employed in the emergency in question.
“This doesn’t work for just any emergency — it has to be an emergency in which use of the military is required,” Chesney said. Trump, of course, will claim that the military is in fact being used to counter his border emergency, since he sent in troops. But in this case, those troops are not actually repelling arriving migrants, so there’s no way to credibly argue that a wall is “necessary” to support what the military is actually doing.
“There’s a better chance than normal that a judge could second guess this,” Chesney said.
But perhaps the bigger question concerns the second way to challenge Trump’s national emergency: By arguing that there isn’t any national emergency, and that at some point, this has to matter.
But for legal purposes, do the facts on the ground matter at all?
We’re in uncharted territory
According to Goitein of the Brennan Center, since passage of the National Emergencies Act, the courts have not once considered the question of whether a national emergency can be declared invalid on the grounds that there isn’t any national emergency. Another legal expert told Charlie Savage the same.
That may now change. To reiterate, this problem was created by Congress: By failing to define what a national emergency is, it left enormous discretion to the president to do it himself.
As we saw in the case of Trump’s thinly veiled Muslim ban, the Supreme Court is inclined to grant the president incredibly broad discretion when it comes to national security decisions. Though Trump widely and openly telegraphed that his motive was discrimination against Muslims, the court upheld the ban as constitutional on the grounds that its motive was pretextually neutral. Because of the court’s reluctance to substitute its own policy judgment for the president’s, Trump’s extraordinary levels of bad faith didn’t matter.
But is there a point at which that bad faith will matter? Possibly, in the case of his new national emergency.
“Yes, there is no statutory definition of a national emergency, and yes, the president has incredibly broad discretion,” Goitein told me. “But even the broadest discretion can be abused. The word emergency isn’t completely meaningless. So you could see a judge say, ‘As deferential as I can possibly be, I still can’t see how this qualifies as an emergency.’”
Chesney of the University of Texas agreed. “The president is given sweepingly broad authority to decide when there’s a national emergency, and we can understand why,” Chesney said. “But there does have to be an outer boundary role [for the courts] when it’s manifestly clear that there is not actually an emergency."
“There must be great deference, but it’s not unlimited deference,” Chesney added. “It’s not unreviewable.”
One hopes so. We will soon find out.