State of Emergency
By Stephen Tuttle | Feb. 2, 2019
Presidents like to find ways to work around Congress, typically by issuing executive orders and hoping the courts will uphold them. President Trump, unable to build his wall via that route, is threatening to declare a national emergency and have the military do it.
Unfortunately, there is no specific definition of national emergency, though it is generally expected to be something extraordinary that threatens the health and safety of the country and its citizens, needs immediate attention, and cannot be resolved by existing laws.
There is nothing in the Constitution specifically allowing the president to make such declarations. The courts believe such powers are inherent in his control of the military. Congress has passed more than 100 laws codifying that power.
Those courts rarely stop such declarations from going into effect. The U.S. Supreme Court allowed Franklin Roosevelt to essentially imprison Japanese-Americans during World War II and allowed the George W. Bush Administration to detain and torture folks without charges, lawyers, or trials. And the Bush “emergency” — that Iraq had weapons of mass destruction — turned out to be a fraud.
The problem is the power vested in the president after such declarations extends far and wide. It isn't supposed to, but it does because of Congressional malfeasance.
In 1976, Congress passed the National Emergencies Act. It was supposed to create some checks and reasonable balance. In fact, it requires it.
The law also says the president must be specific regarding which powers he intends to use and must report to Congress if he intends to expand them. The president is also required to regularly report to the nation what progress is being made. And, by law, Congress must meet every six months to determine if the emergency still exists.
In the 43 years since that law was passed, Congress has not met a single time to review any emergency declaration of any president. Not once.
Such emergencies must also expire after one year, unless they are renewed with additional justification. Instead, they are routinely renewed with no justification. We currently have 31 declared emergencies, some going back more than four decades. It's pretty close to absurd.
Congress intended to create some barriers for presidential emergency powers in 1976, then gave the president even more power with the International Emergency Economic Act of 1977. It allows the president to freeze or seize banks accounts, halt trade with specific countries or companies, and even prevent individuals from being employed or receiving medical treatment.
In a declared emergency, the president can deploy troops domestically, halt or even seize ships at sea, seize cargo, stop construction projects, shutter entire industries ... the president becomes practically monarchical under these declarations. Even better, those powers need not necessarily be directed at the specific emergency declared; the latitude given is nearly endless.
Thanks to a relatively obscure 1944 law, the president can even try to control electronic communications.
An emergency declaration will likely be met with lawsuits, maybe several. If they make it past the initial round, it could be months before the Supreme Court ultimately has to decide. The plaintiffs will have a difficult time convincing the courts they should intervene in a political dispute. At the same time, Trump might have a hard time convincing the courts an emergency actually exists at the border.
The real mystery here is why we're having this spat in the first place. The president could simply claim he's winning, as he so frequently does about everything else.
Illegal immigration is already down, a trend that started around 2010 and has continued. Caravans aside, there is no avalanche of humanity crashing through the border. Trump could claim the combination of his policies, tough talk, and a strong economy with low unemployment are solving the border crisis.
It's a spin his talkers should have adopted early in the debate. He could have accepted a compromise that included $2 billion for his wall and billions more for technology upgrades and expansion, and significant increases in the number of border patrol personnel. The votes were already there. Trump could have claimed, with justification, that he promised increased border security, and we're getting increased border security.
Instead, he's trapped by the magical wall conjured up by his campaign staff, now a $57 million-per-mile fence of steel slats. If the military gets involved due to an emergency declaration, it's a pretty good bet it will cost three times as much and take three times as long to complete.
Trump is not likely to get full funding for his 100-mile wall from the U.S. House. So we'll either have another shutdown, he'll declare an emergency, or he'll accept a reasonable “down payment” and declare victory.
Trump has already won the battle for border security, wall or no wall. He should just say so and move along.