Even though a deal seems to have been made among Congressional leaders, Trump is still threatening to declare a national emergency or to act by executive order or to do both to build his wall.
Should President Trump declare a “national emergency” in order to build his wall? Setting aside without debate the question of whether there is a national emergency that a wall can solve, do we truly want Trump to provoke a legal crisis that might set a precedent for how he and future Presidents can resolve a thorny political problem?
The Constitutional authority to tax and spend belongs solely to Congress. My cursory research indicates that to make an end run around the Constitution, Trump will have to resort to the National Emergencies Act of 1976. This Act allows the President to declare a national emergency, but also states that an emergency declaration can be revoked by Congress. However, a law revoking the declaration has to be signed by the President and the President has the right to veto the action of Congress. A 2/3 vote in each chamber will be required to override a veto.
I imagine a showdown will probably go something like this: Trump will declare a national emergency. The House will pass a bill to rescind the declaration. In all probability, Republicans in the Senate will not pass a bill rescinding the declaration. Even if the Senate narrowly passes a bill, Trump will veto any law rescinding his declaration and it is extremely doubtful there are enough votes in the House and Senate to override the veto.
Trump has to find the money. He will do this by taking money from the appropriated budgets of the Department of Defense or the Department of Homeland Security or FEMA or goodness knows where.
At some point, lawsuits will be filed. How long will it take to resolve them and will the construction be allowed to commence while the lawsuits are pending? Any answers are speculative.
Trump is ultimately counting on “his” Supreme Court. Trump probably has a right to be confident the Supreme Court in a 5 to 4 vote will find a reason to defer to his judgment.
If Trump wins this political fight in this way, does it embolden him to begin to govern by fiat? Probably. His acting Chief of Staff has already said “… he’ll do it with or without Congress”, and Trump said at his El Paso rally that he will build the wall anyway. If Trump does declare an emergency, it is sure to start a tit for tat battle that will ultimately paralyze Trump and the government. Trump is backing himself into a corner, but it is probably a corner he relishes because it gives him an excuse to do what he wants to do how he wants to do it. He may win this battle, but we are the ones who will ultimately pay the price.
The exercise of emergency powers has a history much too long and complicated for this blog. In times of war or in those instances that there is at least a consensus of Congressional opinion that a national or foreign policy objective must be advanced urgently by an exercise of emergency power, the Congress has tended to go along even though everyone with any sense recognizes that this road is dangerous.
There is an excellent series on PBS entitled “The Dictator’s Playbook” that warns us of this path and our own Founding Fathers were justifiably terrified of an “Imperial Presidency”.
I feel certain that one day we will all look at this wall and shake our heads – some of us in shame and some of us in wonder about how foolish this was. Perhaps it is only fitting that Trump builds this type of monument to himself. One of these days we will probably be talking about the cost of demolition and using the wall as an example of bad policy.
My original question was whether Trump “should” declare a national emergency. In my youth, adults who were thinking out loud about the bad consequences of doing one thing or another would inevitably shake their heads and say in exasperation, “Well, let’s just don’t let that get started.” There is wisdom in that.