Yesterday’s announcement by Mr. Donald J. Trump that he is declaring a national emergency on the southern border is just one more step towards creating the autocracy that he so desperately wants to have. After two years of total Republican control, and no “big, beautiful wall,” and no money from Mexico, Mr. Trump puts our Constitution in danger in order to shore up his political standing with his base. An overblown statement on my part? I think not.
As I have written in this space before, one may believe that we do or do not need a border wall, but the facts remain the same. There is no crisis on the border and a wall is not going to stop the flow of people or drugs into this country. You can look it up as I did in my previous piece using the statistics from Mr. Trump’s own administration. Mr. Trump, as usual, makes up his own statistics in order to make a case that his own administration cannot make. But the Constitutional issue is bigger than Mr. Trump’s usual panoply of lies.
The law that the president is using to justify his declaration is known as the National Emergencies Act (NEA) signed into law by President Gerald Ford in September 1976. Ironically, it was intended to end the abuse of the presidential power to declare a national emergency for just any political purpose. Enacted as a reaction to the Watergate scandal the intent was to eliminate the opportunity for presidential abuse of power to protect themselves from political scandal. The law itself is quite complicated. Its originators tried to tie together the elements of presidential prerogative to specific situations covered under existing laws. Without going too far into the weeds, Mr. Trump is using Department of Defense funds for his wall because of an existing statute that allows for redistribution of funds for the protection of military personnel on assigned missions. There are military personnel on the border — ordered there by Mr. Trump but in purely supportive positions — and thus he argues that the wall will protect those troops. It is a complicated interpretation of the law, but as I am not a legislative assistant nor an attorney, I will leave it at that. The point is that the president cannot just wake up one morning and declare an emergency for the fun of it — or at least until now it was thought that they could not — rather, the actions taken under a national emergency must be justified on the basis of existing law.
The DOD funds are primarily from military construction funds and intended for use in improving military support infrastructure, restoring hurricane damage to bases in North Carolina and Florida and other projects. Ironically, some of the money will come from a fund used by DOD for counter-drug operations. In all he is misappropriating over six billion dollars of DOD funds.
The act has been used 59 times over the years by various presidents. Most instances were to impose sanctions on a bad actor overseas, such as to inhibit a dictator from killing his own people. One was declared after Iraq invaded Kuwait and another after the terrorist attacks of September 11th. It was these types of acts that the legislation envisioned giving the president the ability to act quickly in a crisis. Most importantly, none of those previous declarations directly or indirectly circumvented the intent of Congress. This one does. The president is directly challenging the power of Congress to control funding for the first time under this provision.
That is why I believe his declaration to be a threat to the Constitution. A bicameral and bipartisan committee came up with legislation to fund the government that included roughly 1.375 billion dollars for Mr. Trump’s wall. The bill passed with veto proof margins in both houses of Congress. That should be the end of the discussion for this year. If Mr. Trump wanted more money in the future, he could work with Congress to add more money in those spending bills. However, in a fit of pique that he got less money this year than he would have gotten if he had not shut down the government for 35 days — and way less than the 25 billion dollars that Congress was willing to give him a year ago in exchange for protecting the “Dreamers” — the “greatest deal maker in the world” declared a national emergency to build a monument to himself and to bolster his chances in the 2020 presidential election. But don’t take my word for it, take his. Besides having talked about a “national emergency” for months and trying to use it as a threat to get Congress to give him more money, yesterday in response to reporter’s questions about why he did not just continue to work with Congress under normal appropriation and authorization processes, he said, “I could do the wall over a longer period of time. I didn’t need to do this, but I’d rather do it much faster.” Wow. So the president himself admitted that there is no national emergency, merely that he got tired of working with Congress and making slow progress, In other words he chose expediency over the national interest. He then went on to say, “And I don’t have to do it for the election. I’ve already done a lot of wall for the election. 2020. And the only reason we’re up here talking about this is because of the election…” Double wow.
So we have the President of the United States, invoking a national emergency, bypassing a bipartisan funding bill from the Congress, because he wants money to build a wall faster in order to appease his base for the 2020 election. That is one thing about Mr. Trump. He doesn’t hesitate to tell us when he is doing something shady.
In case you forgot, Article One, Section 9 of the Constitution says in part, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Article One enumerates the powers vested in Congress. Section 9 is the “power of the purse” reference that is the strongest element of the power invested in the Congress. Since the president cannot spend money except for specific purposes, the Congress can exert its power as a co-equal branch of government. Without that power in Congress, the president and his Cabinet could spend money on any enterprise they see fit without over sight or other input from Congress.
Besides Mr. Trump’s Banana Republic shenanigans in creating a non-existent crisis to deploy troops and to build a wall to stop a non-existent “invasion” (Autocracy 101 Playbook), Constitutional experts consider his actions to be a direct threat to the Article One powers of the Congress. He would set a precedent that any time a president has a pet project that the Congress will not fund, he or she could declare a national emergency and take money from one authorized project and use it on an unauthorized one. It is an unabashed abuse of presidential power.
How to stop it? The NEA of 1976 provides that opportunity. A 1985 amendment allows for a joint resolution of Congress to end the emergency. Again, without going into the weeds, it requires a simple majority in both Houses to overturn it. Provisions require a speedy vote so that legislative legerdemain cannot bury the issue. They must address it if a bill is brought forward. The president may veto the resolution, in which case the Congress must over ride the veto with a two-thirds majority in both Houses to end the emergency.
It is widely expected that such a bill will come forward in the Democrat controlled House of Representatives where it is expected to pass. The chances of the bill passing are less certain in the Republican controlled Senate. Speculation is that it would pass on a majority, but that the Senate would not over ride a veto. Keep in mind that the Senate Majority Leader Mitch McConnell (Trump-Ky) was against the president declaring an emergency before he was for it. Just a few days ago he was against it. Then on Thursday he took to the Senate floor to say that he supports it. So much for his reputation as an ardent supporter of the Constitution and the self-appointed protector of the Senate and their legislative powers. Perhaps he should re-label his position as the Senate Leading Enabler.
When the Congress fails to stop the madness, numerous court cases are likely to be filed. The basis of those cases will range from Constitutional separation of powers issues to eminent domain cases (it seems that most land owners along the border are not willing to give up their land for a meaningless wall). Whether or not the issue makes it to the Supreme Court is itself a question. The Supreme Court may consider this to be an issue between the other two branches of government, and they are historically loathe to make a decision that favors one or the other when it comes to delineated powers. They want them to solve it themselves, which seems logical since the Congress can pass laws to restrict or rescind the original Act, including the above voting procedure to end a national emergency. What is certain is that it will be working through the courts for months, possibly years, to come. The immediate question will be whether a court issues an injunction to stop any building of the wall using misappropriated funds while the court cases play out. And you can expect every brief opposing the action to begin with Mr. Trump’s statement that he didn’t need to do it.
In some ways this is an esoteric issue. In some ways it is a comedy of the absurd. It is hard to follow the nuances of the law and the Constitution. It gets complicated. Mr. Trump has a knack for putting things into black and white to try to make his points, even if he lies to do so. The country cannot afford to ignore him or to look away this time. To cut through the legalese, I’ll put it this way. The President of the United States is using a hoax to usurp the Constitution of the United States. He is making a pure power play that if allowed to stand will set a precedent for him, and future presidents, to act without restraint to achieve their purposes whether legitimate or not. It is the beginning of a president gaining unfettered power. This is not hyperbole on my part or an over reaction from those that are anti-Trump. Read up on your own, form your own opinion, but the consequences are not whether we build a wall. The issue is whether a president can skirt the law and get away with it. That should be of grave concern to anyone that believes that we should be a country of laws and that no one, not even the president, is above the Constitution.