By: Veronica Faison
Political tongues have grown weary of the word “unprecedented” when describing the actions of the Trump administration. On February 15, 2019, President Trump declared a state of emergency on the US southern border with Mexico, in an “unprecedented” move. Sixteen states, including California, Virginia and Maryland, filed suit in the Northern District of California against the president’s declaration on February 18, 2019, under the claim that the president’s diversion of certain funds to the wall deprives them of the federal dollars they need to sustain military construction, drug interdiction and law enforcement initiatives. The complaint alleges that the president’s actions have created a constitutional crisis by mischaracterizing the southern border situation to fulfill political platform promises to the president’s base and requests injunctive relief.
The controversy links and conflates two issues: the constitutionality of the president’s powers under the emergency doctrine and the standard of what should constitute an actual “emergency.” While it is unclear whether taking this case violates theories of justiciability- where the courts cannot answer political questions that should be left to the legislature or executive– the partisan lenses raise important queries of whether the potential for abuse should outweigh the importance of executive discretion.
In Youngstown, President Truman’s assertion of military powers to seize and keep privately-operated steel mills open was rejected as an overextension; the concurrence stipulated that when a president contradicts congress, he is at his lowest ebb of power and can only rely on expressed powers in the Constitution. However, the National Emergency Act of 1976 was passed by Congress and enacted as a mechanism for what would otherwise be an overreach of presidential authority. Passed as a supposed limitation to the authority presidents had previously assumed in times of crisis, the National Emergency Act lays out a method for both houses of Congress to vote on whether the emergency at issue should be terminated within six months of the president’s declaration. Notably, this check has never occurred. The US is in 32 concurrent states of emergency dating back since President Carter.
A president’s declaration of a national emergency is more than a sophisticated rhetorical strategy to appeal to his base (though perhaps that is more than an incidental benefit). It is a side-step or shortcut to bill passage and congressional appropriations. Legal experts and viewers of Schoolhouse Rock alike know the House-Senate-desk legislative routine. However, while we wax poetic about balance and the separation of powers, we can also recognize the lethargy of lawmaking. While the National Emergency Doctrine fumbles the separation of powers principle and upsets a philosophical balance, the people of Louisiana know exactly what happens when a president does not act swiftly or prioritize. But the border crisis is not a storm.
The administration has indicated that the border wall is a keystone policy of Trump’s platform and will not be redirected. Trump has indicated openly that the “invasion of drugs and criminals” on the southern border was declared an emergency because of the expediency the mechanism affords. Though this has received criticism from pundits as a power grab, given that the lengthy government shutdown did not result in appropriation for a border wall, the 1976 Act does not list any criteria as to what constitutes an “emergency.” Perhaps there should be.
Most presidents’ declarations of national emergencies have been reactionary to an inciting incident, such as reactions to devastating storms, terrorist attacks and sudden onsets that seem to justify a leap over Congress and a dip into its purse power. There are conceived benefits to the Act’s subjective interpretation. Guidelines can be arbitrary, formulaic and inapplicable—cynically, our Constitution can be like that. However, the risk of abuse—whether the president’s actions are a result of shameless manipulation or political naivety—necessitates a second look at the act of Congress and perhaps a first look by the courts.