Photo courtesy of Rochelle Brown/Unsplash.
In declaring a national emergency on Feb. 15, President Trump sought to highlight the gravity of what he calls a national security crisis along the U.S. border with Mexico, while at the same time downplaying claims that he subverted constitutional checks on the executive branch. The president and his advisers portrayed the emergency declaration as a routine move by the executive branch to redirect money Congress has authorized, just as previous presidents have done dozens of times. “We’re going to confront the national security crisis on our Southern border, and we’re going to do it one way or the other,” he said in a televised statement in the Rose Garden just 13 hours after Congress passed a spending measure without the money he had sought. “It’s an invasion,” he added. “We have an invasion of drugs and criminals coming into our country.”
A declaration of national emergency will allow President Trump to redirect money from the Defense Department and the Treasury to supplement the $1.375 billion Congress authorized for the wall. The extra money would then permit the administration to build more than 230 miles of border barrier, rather than the 55 miles lawmakers had previously approved. “This is authority given to the president in law already,” acting White House chief of staff Mick Mulvaney told reporters. “It’s not as if he just didn’t get what he wanted so he’s waving a magic wand and taking a bunch of money.” President Trump himself has claimed that he “was going to be signing a national emergency and it’s been signed many times before,” he said. “It’s been signed by other presidents. From 1977 or so, it gave the presidents the power. There’s rarely been a problem. They sign it. Nobody cares.”
Research compiled by the Brennan Center for Justice at New York University School of Law, however, indicates that no previous use of emergency power since the Carter administration parallel that of President Trump’s declaration. Presidents largely declared national emergencies to impose sanctions on foreign officials and groups — freezing their assets and preventing Americans from doing business with them — because of human rights violations, terrorism or transnational narcotics trafficking.
Congress has also enacted a statute that gives presidents, during times of declared emergency, the power to redirect military construction funds to build projects related to that use. Mr. Trump is relying upon this specific statute to justify the construction of his wall and claim that he is exercising the very presidential powers envisioned by lawmakers. But, in a briefing with reporters, the White House identified only two previous instances in which presidents relied on emergency powers to secure funds for something different than what Congress had appropriated them. Both instances involved military construction associated with wars: President George Bush’s Persian Gulf War emergency declaration and President George W. Bush’s emergency declaration after the Sept. 11 attacks. Neither declaration allocated funds toward projects that Congress had previously rejected.
Checks against the abuse of emergency powers by the Executive branch have weakened since the 1980s. After a 1983 Supreme Court ruling presidents gained the power to veto Congressional resolutions that overruled declarations of National Emergency. Today, legal scholars say that self-restraint on the part of the executive branch is the most powerful tool of curbing abuse. Modern presidents have largely self-regulated and not invoked emergency powers to achieve policy goals Congress had rejected.
Much of the criticism that President Trump centers on the precedent he has created—that both Democrats seeking to further liberal agendas and Republicans pushing for conservative policy measures may push the boundaries of presidential power. House Speaker Nancy Pelosi has already warned the GOP that the next Democratic President may declare a national emergency on guns.
Here at Conn, students remain divided over whether Presidents should self-regulate their use of emergency powers. “President Trump needs to learn that compromise is how government functions” says Natalia Lipkin ’19. “His declaration of emergency appears to be an excuse to get what he wants without compromise. If every president starts operating the same way, then our ability to compromise will be lost. Also lost will be the expectation that the president represents the entire country, not just his supporters.” Guin Feldman ‘19 concurs. “Like many Conn students, I believe that president can play an essential role in addressing national emergencies and should act immediately in times of crisis. I do worry that if a president begins to use executive powers too much, it undermines the structure of a democracy.”
