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Prepare for a legal crisis if Trump calls a national emergency over the border wall

“Even just the act of doing it is really an assault on our constitutional, democratic system.”

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Jan 10 2019, 8:02pm
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Update, Feb. 15: At 10 am, President Trump is expected to declare a national emergency to secure billions in additional funds to build a wall between the U.S. and Mexico. The President is also expected to sign a government spending bill Friday that will avert a government shutdown.

Original story, Jan. 10:
On the verge of owning the longest government shutdown on record, President Trump said Thursday he’d “almost definitely declare” a national emergency to commission the military to build a southern border wall if Democrats don’t bend to his will and approve the funding.

Though American presidents enjoy broad authority to declare national emergencies, using one to get around a partisan legislative dispute would paddle Trump out into murky legal waters, legal scholars told VICE News. Doing so would launch a flurry of legal challenges from Congress and other groups likely to end in the Supreme Court. There, Trump’s lawyers would have to convince the high court that the situation on the border truly is a national security emergency — and that his proposed response is within the boundaries of law.

“There would be lawsuits immediately,” said Elizabeth Goitein, who co-directs the Brennan Center for Justice's Liberty and National Security Program. “If he declares a national emergency, it's my hope that the courts, and or Congress, will stop him quickly.”

Going the national emergency route would test the constitutional norms that constrain the presidency, Goitein said, with potentially significant long-term consequences that could alter the role of presidential power in American politics.

“Even just the act of doing it is really an assault on our constitutional, democratic system,” Goitein said. “I truly hope he doesn’t do it.”

Defining crisis

As the shutdown grinds on, Trump and his team have tried to bolster their case that security on the southern border is in crisis, often relying on misleading claims that go against readily available evidence. On numerous occasions, Trump and his team have evoked the specter of terrorists sneaking through the southern border to support their concerns that a national crisis is afoot. In a recent tweetstorm, Homeland Security Secretary Kirstjen Nielsen warned that “the threat was real.”

Trump doesn’t necessarily need to rally his base, however. He would have no trouble at the outset in simply declaring a national emergency, legal experts said. The Brennan Center has identified over 100 statutory powers at the president’s disposal once he’s declared a national emergency. Two powers in particular, which would grant him authority over military and construction projects, have been floated as possible avenues for him to pursue, according to Goitein.

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But the exact language used to justify that decision would immediately be pounced upon and challenged — requiring him to back up his rationale for doing so in court.

“I don't think either of these laws is a perfect fit, and I think they would both be quite vulnerable to legal challenge,” she said.

Trump’s bluster would then suddenly bump up against the burden of proof. The president may be able to rally his base by warning about a “crisis” at the southern border. But it’s a different matter to convince the Supreme Court that there’s a “military necessity,” for example, to justify circumventing Congress’s constitutional power over government spending.

“I don't think either of these laws is a perfect fit, and I think they would both be quite vulnerable to legal challenge.”

Yet Trump appeared to undermine his own argument that the border constituted a crisis worthy of exercising his emergency powers. Speaking to reporters Wednesday about why he had not yet declared an emergency on the border, Trump presented such measures in a purely political context.

“My threshold will be if I can’t make a deal with people that are unreasonable,” Trump said, referring to Democrats who’ve shown little interest in caving to Trump’s demands.

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Nor would he have much support behind him in one especially important arena: Congress. Even some Republicans have warned him against taking such measures. Mac Thornberry, a Congressman from Texas who’s now the top Republican on the House Armed Services Committee, announced Tuesday that he would oppose using an emergency declaration to build a wall with military funds.

“In short, I’m opposed to using defense dollars for non-defense purposes,” Thornberry told reporters.

Trump didn’t find much solace on his favorite TV network either, with Fox News conservative legal analyst Andrew Napolitano warning the president against spending money Congress hasn’t authorized.

“He is clearly in dangerous waters constitutionally,” Napolitano said.

That appears to be the general consensus among lawyers, especially if Trump is found to be acting against the will of Congress, which history suggests the Supreme Court doesn’t look too favorably on. And Trump’s wishy-washy argument Wednesday surely won’t do him any favors if he goes this route.

Power and precedent

Queen Elizabeth II and the then US President Harry Truman on Washington D.C. (Press Association via AP Images)

Through multiple statutes passed over decades, Congress has granted presidents considerable leeway to flex emergency powers during a crisis. Doing so gives them temporary authority to take special actions and make spending decisions that allow them to respond quickly in times of actual crisis.

Dozens of distinct provisions in federal law grant the president “extraordinary authority in time of national emergency,” according to a report by the Congressional Research Service. The procedures for officially declaring one were formalized in 1976 under the National Emergencies Act.

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Recent presidents have exercised emergency powers on plenty of other occasions — there are 31 national emergencies still in effect — but rarely have they taken such steps for what many observers say essentially amounts to ending a political policy disagreement.

Trump himself had already declared a national emergency on three separate occasions. Those instances involved sanctioning human rights abusers abroad, sanctioning hackers and social media trolls over election interference, and responding to Nicaragua’s “use of indiscriminate violence and repressive tactics against civilians.”

Former President Barack Obama did so 13 times, including once in response to the H1N1 swine flu pandemic. George W. Bush did it 12 times, including calling one to give himself extensive new powers after the terror attacks of September 11, 2001. Bush’s post-9/11 actions have played a key role in expanding the powers of the presidency, especially when it comes to America’s wars abroad.

President Franklin D. Roosevelt infamously used emergency powers to orchestrate the internment of over 100,000 Japanese-Americans during World War II.

Yet as sweeping as they are, the president’s emergency powers are no sure thing, and the historical example most comparable to Trump’s possible pathway doesn’t paint an optimistic outlook.

A similarly frustrated President Harry Truman attempted to go around congressional gridlock and nationalize American steel assets in response to a labor strike during the Korean War. But the Supreme Court didn’t find his argument for emergency powers convincing, and struck down the executive order.

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Democrat Adam Schiff, chairman of the House intelligence committee, warned Trump would face a similar fate.

“If Harry Truman couldn't nationalize the steel industry during wartime, this president doesn't have the power to declare an emergency and build a multibillion-dollar wall on the border,” Schiff told CNN.

Cover: A helicopter passes over razor wire atop the border wall Wednesday, Jan. 9, 2019, seen from Tijuana, Mexico. (AP Photo/Gregory Bull)

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