There are currently 32 active national emergencies in effect in the United States. Most of those 32 active national emergencies are to continue imposing sanctions on various foreign entities. However, there is only national emergency that directly circumvents Congress in order to receive the necessary funding. That national emergency is the “National Emergency Concerning the Southern Border of the United States” declared by President Trump to divert funding from the Department of Defense and the Department of the Treasury to fund the building of the wall along the Southern border of the United States. President Trump’s use of the national emergency should be worrisome given the unprecedented nature of the emergency and how he is able go toward extreme measures to achieve his political motives. His use of the national emergency should be seen as another indication of democratic erosion in the United States.
The nature of the national emergency and its related powers is a delicate manner as noted by Tom Ginsburg and Aziz Z. Huq in How to Save a Constitutional Democracy. Ginsburg and Huq note how national emergencies have always operated within existing legal frameworks.  Although President Trump in this case has not done anything illegal, the very act of diverting funds for his wall is troublesome as no previous President has acted in a similar way. National emergencies must be treated in a sensitive way given the limited restrictions surrounding them. As such, with President Trump’s use of this power in an unparalleled manner, it should evoke great concern. Even more problematic is the dramatic depiction that President Trump has provided regarding the Southern border. He argues that the current situation on the Southern border is an imminent crisis, yet reports indicate that illegal border crossings have remained at similar rates since 2010. As such, to argue that there is a crisis on the Southern border is unjustified. Levitsky and Ziblatt in How Democracies Die also detail how the use of emergency powers in the past has largely reserved his executive powers only in wartime situations.  The situation at the Southern border is very far from what one would call a war, yet the President appears quite adamant in ensuring that it receives this characterization. These instances demonstrate that Trump has used exceptional reasons to justify his national emergency, which should post great alarm. By acting in this almost rouge manner and diverting from traditional norms, Trump is slowly inching to establish more leeway to increase his power and executive authority.
Another component of national emergencies is the absence of checks and balances on the emergency once enacted by both the judicial and legislative branches. As Ginsburg and Huq note, the other component of emergency powers is their ability to expand and evolve to confront various circumstances and situations. National emergencies are most often declared for when Congress is unable to efficiently provide solutions to a problem, which is when the executive branch must step in and provide an immediate solution. On the flipside, Ginsburg and Huq explicitly detail that there are almost no consequences when executive powers do use their emergency powers. In this case, Trump understands that issuing the national emergency can almost guarantee that his funding will be diverted as there are very few legal statutes that would override this power. The only possible mechanism is for Congress to obtain a super-majority to strip Trump of his emergency declaration, but the likelihood of that to occur is very slim. Additionally, due to the recent nominations of Justice Kavanaugh and Justice Gorsuch, the Supreme Court would not strike down those emergency powers. Both of these instances are very rare and almost never occur, which further exhibit the wide encompassing ability of Trump to exercise his power. Although the absence of checks and balances related to emergency powers is not specific to this case, the mere lack of those abilities is alarming as there is the potential for exploitation of emergency powers.
Ginsburg and Huq also provide commentary on the danger of the emergency power. They argue that these emergency powers do not indicate the collapse of the American democracy, yet they do indicate that it is an exhibit of an institution that would demonstrate democratic erosion. The current use of the emergency power by President Trump should be worrisome given the unusual purpose as well as the fearful results that it will produce. Although it appears the technicalities of the funding mechanism behind the wall have stalled the project, the very use of the emergency power is enough to demonstrate that democratic erosion could continue. Ginsburg, T. and Huq, A.Z., 2018. How to Save a Constitutional Democracy. University of Chicago Press. Chapters 5  Levitsky, Steven & Daniel Ziblatt. 2018. How Democracies Die. New York: Crown. Chapter 6.
*Photo by Nikiko “Wall”, Creative Commons Zero license.
This is a very frustrating and painful situation for all sides involved in the immigration process. The claims of national emergency are directly caused by the Trump administration’s immigration policies. By keeping asylum seekers in Mexico rather than holding them in the United States is not only illegal but creates a backup in the already complex process. Moreover, there have been claims of asylees being turned away at the border or explicitly told they cannot claim asylum, which is completely false. The United States must take in all asylum applications and judge based on credible fear. In fact, it has recently been reported that the two main facilities are currently at around 20-30% capacity and can take in more asylum seekers. Yet there are immigration woes now being faced at our northern border as well. The Canadian non-immigrant L-1 visa is currently being denied at the border. Previously CBP could accept border processing of the visa but under the new pilot, the visa must first be approved by USCIS. The change in jurisdiction creates an even longer processing time than simply arriving at the border. An attempt of the administration to rectify the mass of asylum seekers has been to employ border agents as asylum officers. The training alone is costly and will retraumatize the asylum seeker. By lengthening and complicating the immigration process, Trump’s administration is creating – and worsening – the very problem he claims is a national emergency.
The Trump administration’s diversion of funds sets dangerous precedent as well. In the future, this action may be used as justification for another national emergency. But what is troubling is the question of how many precedent-setting actions are needed for a future president to manipulate and erode democracy completely? Five? Three? Perhaps all it takes is one – this one.