In a prime-time address Tuesday night, President Trump tried to scare Americans into pressuring Democratic Congress members to cough up $5.7 billion to build a border wall.
“The president has chosen fear,” House Speaker Nancy Pelosi (D., Cal.) said in a response to Trump’s speech.
Indeed, Trump laid the blame for all sorts of mayhem — from gruesome murders to drug-running to a government shutdown brought on by his demand for a wall — on the party that until last week held virtually no power in Washington.
Now that Democrats control the House of Representatives, Trump has conveniently — and wrongly — placed blame for the shutdown at their feet. But as he tried to whip up fear from coast to coast, Trump failed to follow through on the threat he had been dangling over the nation the past couple days: He did not declare a national emergency.
Instead, Trump used a somber Oval Office address to once again make the case for the pet project that formed his first campaign promise and a common refrain at his rallies. Yet he said little that Americans hadn’t heard before.
It may not matter, however, whether or not the president is ultimately successful in making the case that the current situation on the border constitutes a national emergency, as the relevant laws grant the White House a wide latitude to act — and did not anticipate a president with such an aversion for governing norms.
The White House would have the public believe that the situation along the country’s border with Mexico constitutes a national crisis. Under an emergency declaration, the White House could conceivably tap into a pool of roughly $30 billion allocated for the Department of Defense and redirect some of that funding towards construction of the wall.
Nevertheless, the White House has spent the past week laying the groundwork for this argument, with press secretary Sarah Huckabee Sanders falsely stating that 4,000 suspected terrorists had been detained by border patrol trying to enter the country illegally. (The real figure, as reported by the administration itself, was six.)
Of course, Sanders’ claim — on which the administration has doubled-down — is the central plank in the case for a national emergency, as the White House cannot point to any precipitous incident that would fit any reasonable definition of an emergent event. Indeed, the situation at the border is not discernibly different than it was weeks ago, when the administration dispatched military personnel to the border in an election-year stunt. On November 19, it was widely reported that this deployment would be wound down, suggesting that no such crisis on the border was at hand.
In fact, the only thing that’s changed over the past several weeks is the makeup of Congress. And if the Trump administration couldn’t secure the funding it sought with Republicans in complete control of the legislative branch, Democrats taking over the House might feel a lot like a political emergency, at least from the perspective of the president.
Yet remarkably, that might be sufficient under the letter of the law.
For the better part of a century, the President of the United States has enjoyed immense leeway when it comes to the declaration of national emergencies. Historians trace the precedent as far back as Abraham Lincoln, but the more contemporary understanding of the idea is rooted in the 1970s, when Congress passed the National Emergencies Act which enumerated the (still considerable) powers a president wields during a period of emergency.
Critically, lawmakers at the time stopped short of dictating what, precisely, constitutes an emergency in the first place, placing their trust in the idea that the chief executive would always be judicious in their use of emergency powers.
No one anticipated the office would one day come to be occupied by a serial liar with little regard for historical norms and even less regard for the law.
“There’s almost no restrictions on the ability of the president to declare an emergency, which is one of the shortfalls of the National Emergencies Act,” said Andrew Boyle, counsel for the Brennan Center’s Liberty & National Security Program.
“If you create an emergency, it is a prelude for expanding executive authority and power,” said author and historian Robert Dallek. “That’s what has always been a bit unnerving about it. Do you want to see a president who is reaching for powers that he doesn’t normally assume or enjoy? I find it disquieting.”
So, too, did the Supreme Court. In a landmark 6-3 ruling in Youngstown Sheet & Tube Co. v. Sawyer in 1952, the justices ruled against President Harry Truman when he, in an attempt to force striking workers back to their posts, sought to nationalize the steel industry during the Korean War using emergency powers.
The implications of an emergency declaration for the sake of conducting a military operation on United States soil would be far-reaching and immediate, argues Yale Law Professor Bruce Ackerman. From day one, military personnel would be faced with a perilous choice — obey the orders of their commander in chief, or run afoul of the Posse Comitatus Act, which forbids military exercises on U.S. soil.
It’s a matter that legislators have wrestled with in recent years. In the immediate aftermath of the devastation wrought by Hurricane Katrina in New Orleans, Congress granted the White House limited authority to use military personnel in a support capacity. But just two years later, lawmakers reversed course.
“In 2008, the expansion of the explicit authorization that would decriminalize military activities at home was repealed, on the grounds that it’s too easy for presidents of a dictatorial persuasion to declare these major emergencies and use the Army to destroy due process,” said Ackerman. “What Trump is doing is precisely the thing that lead President Bush and Congress to repeal emergency expansions.”
Legality has never been much of a concern to this administration, which has openly flouted the rule of law from the moment Donald Trump was sworn into office. But past transgressions perpetrated by this administration would pale in comparison to a unilateral decision to conduct a domestic military operation.
“If he goes down this path, it is by far the most serious impeachable offense that’s happened so far,” said Ackerman.
There is some disagreement, though, over whether all military action is expressly prohibited under the Posse Comitatus Act. Many legal experts say the provision only prohibits police actions, not things like, say, the construction of a wall. Even so, a decision by the administration to declare a national emergency would be met with swift blowback, first by the legislature, then by the courts. Democrats would almost certainly pass a bill undoing any emergency declaration, and Senate Majority Leader Mitch McConnell (R-KY) would be unable to block a vote in the upper chamber thanks to the provisions laid forth in the National Emergencies Act.
“The next day, Nancy Pelosi will invoke the override provisions of the emergencies act, and have the Democratic house pass a resolution repudiating the president’s declaration which, under the law as amended in 1986, goes to the senate, where Mitch McConnell cannot bottle it up,” explained Ackerman.
Should lawmakers fail to secure enough support in the senate, dozens of court cases would likely follow, starting with landowners along the border who would be forced to sell or otherwise forfeit their property to the federal government.
In short, whether he declares an emergency or not, the wall Donald Trump so desperately wants has virtually no chance of happening in his lifetime. He was right about one thing on Tuesday night, though: with young children still detained in understaffed, makeshift shelters along the border and nearly a million federal employees well into their third week without a paycheck, there is indeed a humanitarian crisis unfolding. One of Trump’s own making.