The hysteria over Donald Trump’s National Emergency Proclamation with regard to the Mexican border is peak stupid even by the standards of the times, in which almost everything Trump does is portrayed with cataclysmic predictions.
This time around, it’s not just the usual Democrat and media suspects, but also some Republican Senators who worry that Trump is setting a precedent for a future Democrat president to use the National Emergencies Act to spend money for climate change or other perceived liberal emergencies.
Other conservatives claim Trump is violating the separation of powers in the Constitution, and usurping the role of Congress in authorizing spending. Chris Wallace, interviewing Rush Limbaugh, suggested that Trump’s National Emergency Proclamation was the equivalent of Obama’s DACA and other immigration unilateral action and that if you condemned Obama, you can’t justify what Trump is doing.
We’re told it’s “a contemptuous document. It’s the proclamation of a monarch,” a “dictator move” that is “forcing a constitutional crisis” and “the damage to the constitution is likely to last for generations.” As if that wasn’t enough, it’s a “threat to the rule of law” and “an attack on democracy.”
The reality of the Trump emergency proclamation is quite different than as portrayed. Trump is using a statute Congress passed, the National Emergencies Act, which provides that the president can declare an emergency (which is not defined in the statute). There are currently 31 active National Emergencies, and 58 national emergencies have been declared, most of which don’t sound like “national emergencies” in any real sense.
The National Emergencies Act enables the president, among other things, to spend money already authorized by Congress under statutes that provide for use of such funds when a national emergency is declared.
A politically neutral analysis at the Lawfare Blog by Scott Anderson and Margaret Taylor explains how the use of this statutory authority works. It’s not unrestrained power by any means, and certainly does not even purport to supplant the constitutional order. Rather, the spending is relatively narrow and allowable only to the extent there is a specific congressional authorization in the statutes relied upon.
It is not nearly the equivalent of what Obama did on immigration. Obama implemented executive policies which directly contravened existing legislation and created a new class of persons, found nowhere in the immigration laws, who were immune from deportation because Obama said so. Trump, by contrast, is not contravening any law, nor is he usurping Congress’s control over spending authorization.
It also sets very narrow precedent. In order for a future president to do what Trump is doing but as to climate change, the president would have to find statutes where Congress already has authorized spending in an emergency on matters related to climate change. I understand that some Republican Senators genuinely are concerned about presidential powers under the National Emergencies Act. The remedy for that is to amend the Act or rescind it altogether.
One can disagree as to whether there is an “emergency” as that term is used in a catastrophic sense, but that is not what the statute requires. Professor Jonathan Turley explains, Why Trump will win the wall fight:
Presidents have long declared emergencies based on their inherent executive authority. The use of that authority produced some conflicts with Congress, the most famous seen in the case of Youngstown Sheet & Tube Company versus Charles Sawyer, in which the Supreme Court declared that the federal seizure of steel mills during the Korean War was unconstitutional because Congress had never granted President Truman that authority.However, Congress later gave presidents sweeping authority under the National Emergencies Act of 1976. While this law allows for a legislative override by Congress, the authority to declare national emergencies is basically unfettered. It is one of many such laws where Congress created the thin veneer of a process for presidential power that, in reality, was a virtual blank slate. At the same time, Congress has continued to give the executive branch billions of dollars with few conditions or limitations….Democrats insist Trump can be challenged on his use of emergency authority since they do not believe an emergency exists on the southern border. They will fail spectacularly if the case gets to the Supreme Court. While the source of funding can be challenged, there is no compelling basis to challenge the national emergency declaration.
Harvard Law Professor Jack Goldsmith further explains:
Trump’s actions have been greeted with now-familiar claims that he is sparking a constitutional crisis or threatening the rule of law.Considering just the substance of what Trump has done, these are large exaggerations. Everything Trump proposes to do purports to be grounded in congressional statutes and much of what he aims to do does not rely on emergency power. Trump is not relying solely on Article II executive power, and he is not invoking executive power to disregard a congressional statute. Moreover, the statutes in question expressly give Trump authority in the areas in which he claims them.There will be questions—some of them hard, and without obvious answers—about whether Trump’s legal team has interpreted these congressional authorizations, and the conditions on their use, accurately…. The executive branch every day relies on vague or broad or dim delegations of authority, and courts usually uphold these actions. And as Trump himself stated many times, courts will ultimately sort out his claimed statutory authority in the wall context as well.Nor is Trump’s claim of emergency power outlandish—at least by the standards of past presidential practice. Many charge that Trump is declaring an emergency when there is no emergency. But this begs all the relevant questions. The relevant statute on which Trump relies does not define the term “emergency.” Presidents have always—really, always—had discretion to decide if there’s an emergency. And presidents have often declared emergencies under circumstances short of necessity, to address a problem that does not rise to an “emergency” as defined in common parlance to mean “a serious, unexpected, and often dangerous situation requiring immediate action.”
There is no threat to the rule of law. To the contrary, Trump is utilizing powers Congress expressly gave to the president in the way Congress intended. Maybe you think that’s bad policy for Congress, but as Prof. Josh Blackmun points out, “Congress cannot claim that the president is subverting the rule of law when it gives him the precise authority he needs to accomplish his goal.”
The claim that Trump has admitted that there is no emergency because of his statements at his press conference does not negate his discretion legally, or factually. The statement “I didn’t need to do this” is plucked out of both the sentence and the context. He said he could build a wall over time without this declaration, but that he wanted to do it faster. Because the situation is an emergency. Plucking a few words out of context may make for a Twitter legal victory, but I don’t think it will make for a court victory in the end at the Supreme Court.
It’s possible to disagree with something Trump does without losing your own mind. Really, it’s possible, it just seems impossible for some.
There is no constitutional crisis. There is no dictatorship. There is no monarchy. Get a grip.
A president is taking action under a statute, the courts will determine if that action is authorized by the statute or inherent presidential powers, and we’ll survive. Just as we survived the Travel Order, where #TheResistance lost not only it’s s–t, but also the court case in the Supreme Court.
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