Opinion: The national emergency could lead to broad unilateral executive power

For the 60th time in American history, a president has invoked his power to declare a national emergency and make unilateral governmental decisions.

But this time is distinctly different from all previous national emergencies. On Feb. 15, President Donald Trump declared a national emergency to finish construction of a border wall on America’s southern border. By doing so, President Trump has called into question the constitutionality of national emergencies and set a potentially dangerous precedent for future use of presidential powers.

If President Trump is given unilateral power to build a wall, then there is an unlimited number of policies that a Democratic president could use his or her unilateral power to address. While many Republicans believe the wall is important, they will not be nearly as pleased with the power this will give presidents of the
opposition party.

NPR reported that in order to avoid a second shutdown in 2019, Trump agreed to accept the Congressional budget proposal that authorized $1.4 billion for the building of a wall. Immediately after signing the bill, Trump declared a national emergency that will reallocate another $6.6 billion in military spending, giving Trump a total of $8 billion to build 230 miles of the wall.

Since the creation of the National Emergency Act in 1976, most national emergencies have imposed sanctions on foreign powers or limited trade, according to NPR. Other national emergencies respond to acts of terror or national disasters, such as following the Sept. 11, 2001, attacks and the swine flu outbreak in 2009.

This declaration seems different from those. Trump has repeatedly pointed to an “invasion” of drugs and migrants flooding through the border between Mexico and the U.S., characterizing it as a national emergency due to drugs, gang members and human traffickers crossing the border. 

However, statistics from the United States Border Patrol show that the number of apprehensions made at the southern border have decreased since 2005. That year, there were slightly more than 1 million apprehensions. That number has steadily decreased in subsequent years. In 2018, there were less than 500,000 apprehension. However, the primary concern with the national emergency is not the situation at the border, but rather the power that the president has assumed by making this declaration.

Supporters of the president are understandably upset with the gridlock in Congress, which has debated immigration for a generation but have few results to show for it. Many Republicans admire President Trump’s willingness to act when others do not — that is part of what made him a popular presidential candidate.

However, to some legal scholars, this move seems like a step too far. For the first time, a national emergency is funding a project Congress had previously rejected. Although Congress eventually included around $1 million in wall funding in the final spending bill, they had previously voted against several bills that included any funding for a border wall. By creating additional funding, Trump has bypassed Congress to construct more
of the wall.

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PHYSICAL BARRIER — The U.S. and Mexico border already has 650 miles of fencing, according to the BBC.

Elizabeth Goitein, who works for the Brennan Center, oversaw a project examining all presidential uses of national emergencies. She concluded, “Congress has made it as clear as it can that it does not want the president to use funds for this purpose, so this is the president using emergency powers to thwart the will of Congress. That is very different from how emergency powers have been used in the past.”

Other legal minds agree with Goitein. California’s Attorney General, Xavier Becerra, announced he is working with other states to bring a lawsuit early next week, as is the American Civil Liberties Union. However, even if the order holds up in court, the ripple effect of this order will create new precedent for future uses of presidential power.

Due to the high potential for partisan gridlock beyond 2020 and 2024, republicans will be forced to wrestle with the fact that the same power that President Trump assumes here, if upheld, will transfer to all future presidents. A Democratic President could use a national emergency to create stricter gun control and redirect funds toward climate change. When people oppose this use of power, these presidents will be able to point back to President Trump, showing how he is the one who enabled the executive to use this power toward policy-making.

“A Democratic president can declare emergencies, as well,” Democratic House Speaker Nancy Pelosi warned. “So, the precedent that the president is setting here is something that should be met with great unease and dismay by
the Republicans.”

The short-term benefit to Trump and his base may be vastly outweighed by the expansion of presidential powers and the consequences that will come from increased unilateral decisions. The separation of powers is the very principle of the Constitution that all elected officials are sworn to protect. All Americans should be wary of an executive bypassing another branch, regardless of the policy they
are implementing.

One comment

  • I agree that this sets a dangerous precedent. However, the original law allowed a President to allocate defense/military funds to respond to an emergency. This was in response to the Iran Hostage crisis when it was difficult for the President to find funds for a planned rescue effort or other military options without going to Congress.

    I dissent on a future President being able to use a declaration to restrict gun rights. Gun rights are enshrined in the Constitution by the second amendment. Rights enshrined in the Constitution are protected as addressed in Ex Parte Merryman. It is generally accepted that only Congress can suspend Constitutional protections such as Writ of Habeas Corpus and one would presume this applies to 2nd Amendment rights as well.

    As explained in Article 1, Section 9, of the Constitution states that “the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” No other suspension of civil rights is mentioned in the Constitution, but in practice we have seen cases like Korematsu VS United States where the courts have been willing to uphold.

    However, I take hope in the epic dissent of Jackson to Korematsu which reads in part:

    “A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period, a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.”

    Trump v. Hawaii in 2018 would also indicated that the President’s powers whilst broad are not without limits as demonstrated in the Courts recent repudiated of Korematsu v. United States contained in the Trump v Hawaii decision. Further, Congress cannot grant its authority to the President as the courts have ruled that such an action violates the separation of powers.

    I would argue that such a Presidential emergency to restrict gun rights absent some form of open rebellion would be set aside by the courts. The greater threat is a future president declaring an emergency to keep poles open longer in district they favor or in taking some foreign action that surrenders American sovereignty or security for a cause dejore. Perhaps, granting citizenship to all illegal immigrants for once enacted it would be almost impossible to remove citizenship from such people per our UN treaty obligations.

    So whilst I agree with the concern I disagree with the gun rights as realistic example.

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