Trump’s National Emergency: Why He Still Can Win by Losing
Forget all the gossip, punditry, and political self-aggrandizement. They matter not a whit when it comes to how the law – and those that enforce and decide it – will decide whether or not Trump is on solid footing in declaring a national emergency at the United States’ southern border. This requires $8B of taxpayer money and not a dime from Mexico as he promised on the campaign trail. Having said this and knowing a plethora of lawsuits will be filed in the days ahead against Trump for this use of his executive power, the betting line is that he will lose, but in so doing he may win.
How can that be?
Let’s go to the basic facts where a seasoned lawyer, like myself, begins. Trump declared that an emergency exists at the border between Mexico and the U.S. The legislation that would theoretically allow this declaration is the National Emergencies Act of 1976. This law tells us:
– With respect to Acts of Congress authorizing the exercise, during the period of a national emergency, or any special or extraordinary power, the President is authorized to declare such a national emergency. Such proclamation shall immediately be transmitted to the Congress and published in the Federal Register.
– Any provisions of law conferring powers and authorities to be exercised during a national emergency shall be effective and remain in effect (1) only when the President (in accordance with subsection (a) of this section), specifically declares a national emergency, and (2) only in accordance with this chapter…
The law also provides that Congress must meet every six months to vote on whether the emergency declaration is still necessary, though there is no evidence that in the 43 years of the law’s existence, a Congress has ever done that.
The words highlighted in the law as quoted is only for emphasis, as they do not appear emphasized in the law, but they are stated four times. Nowhere, however, are these words defined in the statute.
What is a court or judges to do?
There is a well-developed body of law that provides guideposts to determine what certain words in a legislative enactment mean. One such canon is to use ordinary definitions for the words used in context, where no definitions are provided. One could also go behind the words and look at the intent and purpose of the legislative body that created them. If no such intent and purpose exist, courts can provide their own definition, but that is fraught with caveats, the most significant of which is that a judicial branch as a co-equal branch may not wish to interfere with the legislative branch. If a legislature has seen fit not to define words, a court may not want to either, deferring to the legislature’s will and prerogative.
Merriam-Webster tells us that “national” means “of or relating to a nation.” That sounds easy enough, so we know an emergency must affect and have an impact upon the entire country. Now let’s define “emergency,” which is “an unforeseen combination of circumstances or the resulting state that calls for immediate action; an urgent need for assistance or relief”. Like, for example, what the country faced after 9/11.
Has Trump provided data on which to declare an urgent or immediate need? No.
Trump has been threatening a declaration of national emergency for weeks. Logic tells us if he first talked about declaring it weeks ago – and did not – no immediate action was necessary because there was no emergency then and circumstances have not changed in the interim.
He declared his national emergency on Friday, February 15. Nothing happened that day, reiterating that nothing had taken place when Trump first started threatening a national emergency. As president and Commander-in-Chief, he did tell the nation this day that “I didn’t need to do this,” followed by telling us he just wanted to accelerate the process to get his wall built. If Trump as the declarant of an emergency felt he did not need to declare an emergency, then no emergency existed.
To carry out his emergency, however, his administration wants to take money from previously-approved defense budgets to pay for his wall, money that Congress previously approved for projects unrelated to building a wall for domestic purposes.
Congress is a co-equal, legislative branch of government with Trump and his administration, and it has sole and exclusive power to spend money. Colloquially speaking, it has the “power of the purse.”
Hours before Trump declared his emergency, Congress provided money for border security, but it did not provide for a wall, and nowhere near what Trump now wants to build his border wall. Trump signed off on that legislation.
Building a wall means taking private property from landowners on which the wall would be built. The government pays for this, often below-market. This is called eminent domain, but there must be grounded reasons to take such property. Typically, this takes years to decide in court, and, to date, no such data points exist to justify there is an emergency for Trump’s declaration.
I said Trump could still win even if no emergency is judicially found. Here’s how.
Congress can pass a joint resolution to disapprove Trump’s declaration; remember, the National Emergencies Act of 1976 calls for Congress to determine whether an emergency declaration is still needed once declared. The House most likely will pass a resolution next week, and if there are enough Republicans in the Senate to side with all Democrats in that chamber, the resolution then goes to Trump, who has already threatened to veto it. The Congress can override the veto, which means 67 Senators (a 2/3 majority) would have to vote for the override. This is viewed as unlikely at this point, but it gets back to why Trump could win.
There have been decisions where a court will not, or does not, want to intervene with a legislative prerogative. After all, here Congress has the complete authority to override a Trump veto of the resolution, finding his national emergency does not exist. Again, the power of the purse belongs to Congress, and if Congress does not have the collective will to buck Trump’s national emergency with an override, there could be enough justification for the judiciary to defer to the actions – or inactions – of the legislative branch. This is not always the case, but, if so, Trump’s “wins,” despite there being no data to support an emergency and despite there not existing any dire consequence for the nation justifying a national emergency at the southern border.
All this having been said, there are still the constitutional arguments to address, that is to say, that the legislative branch appropriates and spends money on behalf of the nation. Trump, as head of the executive branch, cannot issue an executive order declaring a national emergency without foundation and that scoots around this constitutional mandate giving Congress the sole duty to budget and fund government but does not include Trump’s wall.
On this score, he will likely lose because, plainly, not only is there no emergency and certainly not one affecting the entire nation, but also the executive branch cannot take money away from budgeted line items not previously appropriated by the legislative branch.
The most efficient way to resolve the present conundrum created by Trump’s political shenanigans is for Congress to assert its rightful role given it by the Constitution and override any veto.