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
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.
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 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