President Trump is considering stretching his presidential powers even further by declaring a national emergency to build his border wall.
But he just undermined his case that it’s actually an emergency.
Speaking to reporters in the Oval Office on Wednesday, Trump said that he has the “absolute right” to declare an emergency. Then he was asked what would make him take such an action. “My threshold will be if I can’t make a deal with people that are unreasonable” on the partial government shutdown, he said. He added at another point of the negotiations: “Otherwise we’ll go about it in a different manner,” but “I don’t think we’ll have to do that.”
Importantly, this is the first time Trump has explicitly said the national emergency declaration is his backup plan. It has been clear that it was a conveniently timed alternative that could be invoked in the absence of a deal to fund the wall and end the shutdown. But the White House could have argued that it was still deliberating about the legality of such a move — or even that it was still considering whether it was appropriate. Here is the president acknowledging that such a declaration is basically a strategic option.
Which doesn’t exactly bolster the idea that there is a true emergency on the southern border. To be clear, that’s a proposition that was dubious to begin with — given that the level of illegal immigration is way down from its peak in the early 2000s and also given that Trump and his administration have repeatedly misstated basic facts to support their case. But Trump has now admitted that his decision relies not on whether it’s actually an emergency, but on whether such a declaration is needed politically and legally to build the wall.
That doesn’t necessarily preclude the idea that there is an emergency, though; we certainly have had other emergencies that weren’t met with national-emergency declarations. Yet there are a couple of logical holes in that argument. The first is that, if it’s truly an emergency now, time is of the essence, and it would undoubtedly be better just to declare the emergency so it can be dealt with posthaste. The second is that the shutdown hinges on just more than $5 billion of border-wall funding, which is enough to build only a fraction of the wall. If there is truly an emergency, isn’t the entire wall needed now?
Those, of course, are questions about the logic behind Trump’s thought process. What’s more pertinent here is the legal questions — especially given that the emergency declaration would definitely be challenged.
But whether it’s genuinely an emergency is also important, as my colleague Fred Barbash reported Tuesday:
In 1976, Congress enacted the National Emergencies Act, which authorizes the president to declare emergencies for a variety of purposes — great and small — but offers no definition of emergency.
Any court battle would probably be fought around that definition and its validity, according to Walter Dellinger, head of the Justice Department’s Office of Legal Counsel during the Clinton administration.
That office, which advises the president on constitutional issues, “has an obligation to determine that there is actually a basis” for a declaration of emergency “and to resign if there is not.” It would be “a critical moment for the rule of law” both for them and the attorney general, Dellinger said.
Bobby Chesney, a professor at the University of Texas School of Law, agreed that much would depend on how the Trump administration defines “emergency” and whether the claim is convincing to the courts.
“I think most of us fully understand there is no emergency,” he said. “But it doesn’t follow that everyone will see it that way.”
I followed up with Chesney and another expert to see whether they thought Trump’s comments could affect the legal case.
“The short answer is, yes, I think this and other statements and actions by the president have undermined his argument that a genuine national emergency exists,” said Cornell Clayton of Washington State University. “Emergencies, by definition, are events beyond the control of ordinary political processes.”
Chesney said he has "no doubt that if litigation arises, this will be a quote that the plaintiffs would use. That said, it’s easy to imagine the administration responding that they have thought it an emergency all along but just didn’t feel the need to take the formal step of a declaration until negotiations failed.”
Chesney added that another important question for the legal case, beyond whether there’s an actual emergency, would be whether it’s one that involves military necessity. The latter is required for getting the funding to address the emergency.
“That likely will be the weakest link, and the more it becomes clear that Trump is merely turning to this tool out of convenience to get a result he happens to want as a matter of ordinary policy and politics, the more space he creates for the courts to make the bold move of rejecting his factual characterization,” Chesney said.
Trump’s comments about his true motivations for certain actions have regularly upended the White House line and risked undermining his legal team’s defenses. One of the biggest questions hanging over his presidency is how they might play into special counsel Robert S. Mueller III’s Russia investigation and the possibility of obstruction-of-justice charges — particularly when it comes to admitting that he fired FBI Director James B. Comey with the investigation on his mind.
These latest comments may never doom a national-emergency declaration. But they do make clear — in case it wasn’t already — that Trump formulating this plan at this particular moment in time is no coincidence, and that it probably has less to do with circumstances on the border than in Washington.