The 'Emergency' Declaration: Let's Hope It Fails

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Posted: Feb 15, 2019 2:05 PM
The 'Emergency' Declaration: Let's Hope It Fails

Source: AP Photo/Eric Gay

President Trump has formalized his highly unpopular decision to invoke a national emergency in order to scrounge up money for a border wall.  Conservatives and constitutionalists should hope he fails in this endeavor.  It is true that other presidents have gone this route many times in the past, with dozens of those declarations remaining active to this day.  It's also true that Congress has afforded the presidency fairly wide latitude on emergency decrees (read this thread from a Harvard Law professor), so there may -- arguably -- be at least some statutory basis for what Trump is trying to do.  But at its core, this maneuver flies in the face of the constitution's separation of powers.  Congress is exclusively vested with the power of the purse, and Congress has been quite explicit about what it will, and will not, spend on new border barriers.  

Failing to have one's entire funding request for a political priority fulfilled by the legislative branch does not constitute a national emergency, and seeking to use that arrow in the presidential quiver in response to an undesired outcome in an appropriations fight is an abuse, plain and simple. Furthermore, the president has also directly undermined his own 'emergency' case by saber-rattling over this threat for weeks, and by stating outright earlier today that he "didn't need to do" what he's done:


Did President Obama engage in abuses of executive power on immigration, to the silence or even cheers of Congressional Democrats?  Yes, of course.  DACA and DAPA were clearly beyond his authority, according to his own legal analysis, yet he moved forward with them anyway when Congress wouldn't do his bidding.  Conservatives, correctly, howled.  So, "but Obama" isn't a strong argument here, especially from a crowd that purports to care so very much about the constitution and limited government.  And then there's the "precedent" argument:

Meanwhile, this is a long-term gift to progressives. They hate the Senate’s legislative filibuster and now they have an easily exploitable precedent to declare an emergency when some future Democratic president doesn’t get what she or he wants from Congress and invokes the exact arguments already being used to justify the Green New Deal. Climate change is the new “moral equivalent of war” for progressives — and they believe it. What will senate minority leader Mitch McConnell say in opposition to a future emergency declaration beyond “The wall was different”? Good luck with that. Nancy Pelosi just minutes ago, said “The Republicans should have some dismay about the door they are opening, the threshold they are crossing.” She isn’t thinking Green New Deal, she’s thinking guns.

Leftists are already salivating over how the Trump standard on presidential "emergencies" could be applied to pursue their own agenda -- from gun control, to climate change, to healthcare.  I favor more physical barriers along our southern border, and I find the general direction of the Democratic Party on immigration enforcement to be unserious and reckless.  Our current policy is a mess, and the border is not secure.  But the president should attempt to wring more money out of the opposition through regular channels, including this promising one.  The best outcome here would be for Trump's 'emergency' gambit to be thoroughly rejected by the courts, establishing clear limits to this sort of end-run gambit.  Might a failed result actually be Trump's design?  Via the Washington Post:  "Yet for Trump, the negotiations were never really about figuring out how to win. They were about figuring out how to lose — and how to cast his ultimate defeat as victory instead.”  I'll leave you with this, from the author of In Trump We Trust:

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John Stossel