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Weighing a ‘National Emergency’

Terry H. Schwadron

Jan. 6, 2019

In taking his case for a Wall on the Mexican border public, President Trump aggressively asserted that he has the right as president to build it without Congressional approval.

Legally, Trump said, he could declare a “national emergency” over border immigration, and under the banner of national security reroute money for, say, the Defense Department and the military to have the U.S. Army Corps of Engineers build the Wall.

This claim has gotten little actual attention. Is Trump correct?

According to The Washington Post,legal experts said Trump’s emergency powers under federal law are limitedand expressed doubt that such an avenue would solve the mounting political dilemma who is making this dispute the defining moment for his presidency. Lawyers at the White House were reportedly meeting to research the question.

There has been surprisingly little immediate journalistic examination of the assertion. How does this declaration work? Is it only a power connected to shooting wars? How far do national emergency rules go? Are there any limits on what the president can do under these declarations?

For example, under such a declaration, the president said he could order lands taken from private owners by eminent domain, change the federal budget and have the military build the Wall. The statements came amid a ranging press conference on Friday in which the president made a number of dubious remarks and said he was willing to let the shutdown last for months or years.

Trump said, for example, that all the previous living presidents have supported a wall, when he has not spoken to them about his proposals (they don’t), and that the Department of Homeland Security has been arresting a ton of terrorists (later defined as people whose travel patterns prompt questions by immigration officials). Basically,

illegal immigration may be rising right now, but it remains much less than a few years ago, and most illegal violations involve expired visas.

Trump also insisted that Mexico is paying for the Wall “many times over” because the renewed and renamed NAFTA agreement –which also has not yet been approved by Congress — will make it more difficult for U.S. companies to move manufacturing jobs to Mexico — thus leaving jobs, tax payments, and support income in the United States. Still, it is taxpayer money that he wants assigned to the Wall construction project.

This showdown is a public relations war with actual real-world consequences for both the 800,000 federal employees who already are reporting problems paying household expenses and citizens, who could find themselves paying income tax but not getting tax refunds for overpayment because no one is working at the IRS offices involved in the process. It is a political fight for dominance in the suddenly split political world in Washington, and it is a battle where the stakes may well be in reelection effort next year.

So, it makes sense that Trump and company are pulling out all stops towards meeting their central campaign promise for a Mexican-paid Wall to end immigration. And, one could argue, perfect sense for Democrats who believe a 2,000-mile Wall an ineffective tool for stop illegal immigration rather than a more comprehensive approach and the use of technology, agents, roads along with fencing. What doesn’t make so much sense is stretching the truth on various conflicting data about immigration along the border.

But today’s issue for me is the assertion that Trump can simply ignore Congress, a co-equal branch of government and direct the military to do the work.

The National Emergencies Act (NEA) authorizes the president to declare a “national emergency,” triggering emergency authorities contained in other federal statutes. Past NEA declarations have addressed, among other things, the imposition of export controls and limitations on transactions and property from specified nations. A national emergency was declared in 2001 after the September 11 terrorist attacks.

But we didn’t declare opioid deaths a national emergency, nor illegal drugs more generally. We did not declare the undercutting of heath care a national emergency, nor bad behavior by banks prompting a global economic crisis. So, why a policy decision about a construction project?

Still, Rep. Adam Smith, D-WA, new chairman of the House Armed Services Committee, told The Post that Trump was considering an “unwise, weak and irresponsible legal gimmick” that would divert “substantial resources” from the military to build a wall. “By abusing this authority, President Trump would be saying that he does not actually believe all money he requests for our country’s defense is needed for legitimate national security purposes,” Smith said. “That would raise major questions about his credibility when he requests his next defense budget from Congress.”

An op-ed column in The Washington Examiner, which generally supports the president’s positions, warned that “The U.S. system places important checks on presidential power. Though it’s true that generally executive power is at its strongest in cases involving national security, for the sake of the republic, it’s important to be wary of overly broad invocations of ‘emergency.’The wider the interpretation of ‘emergency,’ then the more decisions can be arbitrarily imposed on the country by a single leader, and there lies the road to authoritarianism.”

The op-ed concluded, “Emergencies should be invoked in very limited cases, such as natural disasters, or if there’s an actual armed invasion. Whatever the arguments in favor of building a border wall, it does not rise to that threshold.”

That the Wall has become an important dispute is not in question. But we should be very skeptical about declaring an authoritarian decision to break the stalemate.


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