On February 15th, 2019, following the longest ever government shutdown, President Donald Trump declared a national emergency over what he refers to as the security crisis on the Southern border. Hereby, the President intends to divert money, already appropriated by Congress, to the funding of his renowned wall on the US-Mexican border. Declaring a national emergency, President Trump leveraged the powers vested in him by the National Emergencies Act of 1976, which allows the President to declare a state of national emergency and provides him with the ability to activate a number of specified presidential emergency powers. Such measures can be useful in times of emergency, where a President may need to act quickly and where the situation does not allow for timely negotiations with Congress. Originally however, the act was intended to curb the powers of the President in a case of national emergency and to formalize the ability of Congress to act as a check on these powers. Importantly, the act was not intended to allow the President to invoke emergency powers in the pursuit of partisan and policy purposes or in attempts to circumvent Congress. This, however, is exactly what President Trump is doing today, as his emergency declaration is specifically intended to allow for redirecting money without Congressional authorization in order to pursue a policy that Congress has specifically rejected. This is possible because the National Emergencies Act is so vaguely formulated that it does not explicitly provide a definition of what constitutes a case of emergency, meaning that the law leaves it essentially for the President to do so.
In response to President Trump’s emergency declaration, Congress issued, on March 14th, a joint resolution, terminating the national emergency. This resolution was however, immediately vetoed by Trump, and on March 26th House Democrats failed to secure the two-thirds majority needed to override the presidential veto. As of now, the legislative avenues of striking down the emergency declaration are thus exhausted, and the next battle is likely to be fought in the federal courts, as several states and stakeholders have filed lawsuits challenging the legality of the emergency declaration.
President Trump’s emergency declaration poses a series of concerns regarding the state of American democracy. First and foremost, there is the concern of whether this practice violates the constitutionally proscribed separation of powers, as Trump is allegedly encroaching on the power to appropriate federal funds, which according to the Constitution, belongs to Congress. A second, perhaps even more striking, concern regards the anti-democratic nature of this action and the inability of Congress to respond to it. In other words, the National Emergencies Act provides the President with a fairly unrestricted power that can be misused for the purpose of circumventing the democratic political process.
Declaring a national emergency and calling upon presidential emergency powers in order to overcome political opposition and achieve a personal political goal, not only circumvents, but effectively distorts the democratic political process. It seems fair to say, that such action qualifies as a use of legal mechanisms present in democratic regimes for anti-democratic ends (Ozan Varol, 2015). Furthermore, in doing so, President Trump clearly signals that he is willing to deploy his legal and institutional powers to the fullest in order to obtain his goals. In other words, the willingness of President Donald Trump to invoke the National Emergencies Act in order to pursue a policy that Congress has specifically rejected demonstrates a clear break with the democratic norm of institutional forbearance. This norm prescribes that political leaders exercise restraint in deploying their institutional prerogatives and refrain from using their legal powers in ways that are harmful to democracy. According to authors Steven Levitsky and Daniel Ziblatt (2018), this norm is fundamental to a functioning democracy. In fact, this norm constitutes the foundation on which the system of interbranch checks and balances lies, since each branch must demonstrate forbearance for the system to function effectively. Furthermore, strong democratic norms of forbearance and toleration are vital because formal institutions are inevitably incomplete and open to competing interpretations. As noted above, this is exactly the case with the National Emergencies Act. As argued by authors Aziz Huq and Tom Ginsburg (2017), in the absence of strong institutional safeguards, the intentions and actions of individual presidents are thus of great importance for the survival of American democracy. As Trump’s emergency declaration seems to signal a willingness to disregard the democratic norm of institutional forbearance, American democracy appears increasingly vulnerable to democratic decay.