Trump's national emergency: "A constitutionally dubious gambit"

Following the longest government shutdown in U.S. history and a budgetary standoff, President Donald Trump declared a national emergency on Feb. 15 in an attempt to obtain funding for a wall along the U.S.-Mexico border. Fellow in political science Mark P. Jones provides insight on this controversial move and what happens next for the U.S.

Why did Trump declare a national emergency to pay for a border wall?

Trump’s emergency declaration is largely a way for the president to save face with his base and protect his own ego. Democratic leaders were dead set against providing Trump with any legislation that would allow him to "win" his standoff with Congress, which included a record 35-day shutdown of the federal government. When presented with legislation to reopen the government that contained only $1.4 billion for 55 miles of border fencing, Trump found himself with a worse deal than what he was offered before the shutdown. In the face of this legislative defeat, Trump had only three options: 1) veto the legislation and cause a second federal shutdown with no realistic endgame, 2) sign the legislation and abandon his effort to build the border wall, or 3) sign the legislation and declare a national emergency to build the wall.  

Trump chose the third option, with an emergency declaration that dedicates $8 billion toward barriers along the U.S.-Mexico border to prevent illegal border crossing and smuggling. Almost half of the $8 billion comes from redirecting funds budgeted by Congress for military construction ($3.6 billion), followed by $2.5 billion intended for military efforts to combat drug trafficking, $1.4 billion from the legislation that ended the shutdown, and the remaining funds coming from money seized from drug traffickers by the Department of the Treasury.

Is Trump’s national emergency declaration legal?

The National Emergencies Act of 1976 reduced the president’s emergency powers, following the Watergate scandal. The legislation attempted to balance a president’s need to act swiftly in times of crisis with the legislative branch’s constitutional duty to check the power of the executive branch. Trump’s emergency declaration to build a border wall would at the minimum appear to violate the spirit of the National Emergencies Act, and quite possibly violate the letter of the law.

First, few neutral observers would categorize the security situation at the U.S.-Mexico border as a national emergency.  

Second, many of the current emergency examples cited by the president, including a large influx of Central American immigrants and shipments of opioids, would not be notably affected by the construction of a border wall. A majority of Central American immigrants surrender immediately and request political asylum, while most opioids are hidden amid legal commerce that is shipped on vehicles passing through existing border checkpoints.

Third, and perhaps most importantly, Congress had over two months to examine and debate this topic, and it provided a legislative remedy that included limited funding for border fencing. This legislation made clear that Congress believed no additional funds for a wall were necessary.

Fourth, Trump is effectively using his national emergency powers to circumvent Congress to allocate funds for a border wall that Congress did not authorize. Trump could not convince Congress to pass the legislation he wanted, and instead of either accepting defeat or going back to the bargaining table (where he was unlikely to succeed), he opted for the constitutionally dubious gambit of declaring a national emergency.

Only the courts can render a verdict on whether Trump’s emergency declaration is constitutional. At the very minimum, however, it is not the type of behavior that we are used to seeing in the U.S., but rather the type of executive behavior that we tend to associate with troubled presidential democracies in Africa, Asia and Latin America, where presidents have often expanded their powers via the use of dubious decrees.

However, Trump’s declaration of a national emergency was probably the smart move from a political perspective. At this point, the border wall is far more important symbolically than physically. Trump’s base can now see that he has done everything possible to build the wall, and he is better off politically having declared the national emergency than to have folded and admitted to a humiliating defeat at the hands of Democrats.

What happens next?

Congress has the ability to repeal a president’s emergency declaration. The House is considering a resolution to repeal the declaration, and given the Democratic majority in the House combined with some GOP opposition to the declaration, it would likely pass. The Senate would then have 18 days to bring the resolution to a vote, and the bill could pass in the Senate since the GOP only has a 53 to 47 seat advantage. It is doubtful that any Democrat other than perhaps West Virginia’s Joe Manchin would vote against the repeal, meaning that if five or more Republicans defected (e.g., Lamar Alexander, Susan Collins, Lisa Murkowski, Rand Paul, Marco Rubio), the repeal would pass.

However, Trump would almost certainly veto this legislation, and at the present time there would not appear to be nearly enough votes in the Senate or House to override this veto, meaning it would stand. Thus, this legislative route would be more an exercise in political theater than a route by which the declaration would actually be repealed.
The more likely scenario is the declaration will be challenged in court by multiple plaintiffs ranging from state attorneys general to Texas landowners along the U.S.-Mexico border whose land would be seized via eminent domain. These challenges, combined with possible injunctions prohibiting the initiation of construction, could conceivably tie the case up in court through the 2020 election season. This is especially the case if the U.S. Supreme Court opts to not immediately take on this political hot potato but rather allows the process to play out in the lower courts with the hope that either the issue cools off or that by the time the Supreme Court has to render a decision, Donald Trump will no longer be president of the United States.


This Q&A appeared in the Feb. 22, 2019, edition of the "Baker Institute Update," the institute's email newsletter.