On February 15, President Trump declared a national emergency over the situation on the United States–Mexico border. This move allows the president to divert $3.6 billion from various military construction projects for use at his discretion. According to White House officials, the emergency funding will be combined with $3.1 billion diverted from other government sources using the president’s non-emergency authority, as well as the $1.375 billion already authorized by Congress for border fencing, to pursue one of Trump’s signature initiatives: a border wall between the US and Mexico. Trump’s power to do this comes from the National Emergencies Act, a 1976 law originally intended to curtail the president’s emergency powers by setting guidelines for congressional review of executive emergency declarations. This act does not grant the president absolute power during a national emergency. Rather, it authorizes him to exercise the 123 emergency powers which have become available over the decades.
When Trump invoked his power to declare a national emergency, he did so with little pretense of an actual emergency, admitting to reporters that he “could do the wall over a longer period of time” and “didn’t need to do this,” but would “rather do it much faster” than he could with the limited funding Congress had authorized. When announcing his intention to declare a national emergency, Trump also openly discussed his plans for the declaration to reach the Supreme Court, where he expected it to be upheld. Clearly, Trump intends the declaration to bypass Congress and go unhindered by the judiciary. This situation demonstrates the dangerous lack of checks and balances on the emergency powers granted to the president via the National Emergencies Act.
Checks and balances are vital components of democracy. In his Encyclopedia of Democracy, Lipset (1995) describes checks and balances as the logical corollaries of separation of powers, the doctrine which commonly separates democracies from more authoritarian systems. Huq and Ginsburg (2018) also note that the governmental accountability which arises from inter-branch checks is a fundamental part of a healthy democracy, and they cite the erosion of these checks as a sign of constitutional retrogression. In their discussion of the mechanisms of constitutional retrogression, Huq and Ginsbury are also concerned with shifts of other branches’ power to the executive– in other words, exactly what the National Emergencies Act authorizes, even if temporarily.
And yet, Trump is likely correct in assuming that the Supreme Court will be unable to challenge his emergency declaration. If and when this case reaches the Supreme Court (which many believe it will), experts have pointed out that it will parallel the recent travel ban case. In both situations, Trump acted on a broad delegation in a federal statute, and his actions were immediately challenged in court. Both cases also involved very little warning for Congress before the president made his move, and little to no room for compromise, as well as signs that Trump knew his actions were more drastic than the situation truly called for. In the end, the Supreme Court upheld the travel ban 5-4, even before Trump appointee Brett Kavanaugh replaced Justice Kennedy. Most importantly, even if the court is reluctant to uphold Trump’s national emergency declaration out of political or ideological loyalty, the language of the National Emergencies Act is so vague that the justices would have difficulty finding any grounds on which to rule against it. The act does not specify what constitutes an emergency, giving enormous discretion to the president and leaving the judiciary with virtually no grounds on which to judge the legitimacy of a given national emergency declaration. Trump, therefore, can rely on the Supreme Court– an institution meant to preserve democracy by being able to limit the president’s power– to facilitate what many are calling abuse of power.
As for Congress, its members can do very little to push back against Trump’s national emergency declaration, since the very purpose of executive emergency powers is to allow the president to bypass Congress in times of crisis. While the National Emergencies Act was originally intended to let Congress limit the president’s ability to declare national emergencies, the result is only a set of procedural parameters, rather than real guidelines as to what constitutes a national emergency, or mechanisms for Congress to challenge the president’s use of his emergency powers. Some Congress members are planning to pass a resolution against Trump’s declaration, but the president will undoubtedly veto it, and it seems unlikely that concerned Congress members will be able to rally the two-thirds majority necessary to override the veto. If trends continue, enough Republican lawmakers will be unwilling to oppose Trump that Democrats will be left with little recourse. The only viable option left for motivated Congress members will be to lend their support to the multiple lawsuits emerging in response to the emergency declaration.
Defenders of the National Emergencies Act and the broad powers it affords the president point to the act’s basic purpose. Namely, a president sometimes does need additional powers during times of real national emergency. He may need to act quickly, without time-consuming negotiations with Congress, and he should be allowed discretion in deciding what constitutes an emergency. These are true statements, which the 1975 Senate committee that first created the act recognized. It appears the committee did not, however, recognize the risks of the act’s extremely broad language, and the amount of unchecked power such language could grant an opportunistic president. This dangerous flaw in the National Emergencies Act has allowed President Trump to bypass Congress, rely on a powerless Supreme Court, and provide only a halfhearted pretense of a real national emergency, all to secure immense funds for his pet project which most Americans oppose. Yet states and civil society organizations are leading the legal challenges to Trump’s declaration, while the other branches of government can do almost nothing.
This case reveals the extent to which federal inter-branch checks and balances are missing when it comes to the president’s emergency powers. The fact that the National Emergencies Act allows the president to take actions and divert funds with virtually no restrictions from either Congress or the Supreme Court makes this act undemocratic. The amount of unchecked power the act’s broad language gives the president is excessive, and violates the core principles of a democratic system. Someexperts are already proposing ways in which Congress could amend the National Emergencies Act to place restrictions how the president uses it, or limit when it can be invoked. Until such measures are taken, however, Trump’s national emergency declaration to fund a US–Mexico border wall stands as a troubling example of what can happen when a president with authoritarian tendencies (Lieberman et al. 2017) has access to a dangerously undemocratic law.
*Photo by Gage Skidmore, “Donald Trump,” Creative Commons Zero license.