President Donald Trump has reportedly backed off for now from a proposal to invoke emergency powers under federal law or any “inherent” constitutional authority to build a wall along America’s southern border, even though Congress has refused to accede to this request. Still, Trump is maintaining that he retains the authority to make such a move, and it’s possible the frenetic commander in chief could change his mind again and whipsaw our nation into crisis the moment he gets impatient or feels slighted. Commentators, meanwhile, have rightly warned just how many federal laws actually do authorize certain kinds of emergency actions by a president. Others have pointed out differences between the current circumstances and other historical moments, such as Truman’s seizure of steel mills during the Korean War, or even Lincoln’s invocation of a national crisis to issue the Emancipation Proclamation.*
But what is missing in this discussion is sufficient attention to the long-standing, fitful relationship between executive power and the country’s deep-rooted problems of inequality and prejudice. Sure, Lincoln may have cited an emergency to liberate slaves in the seceding states, but many more presidents have claimed crises—real or manufactured—to target political and ethnic minorities outright, or to impose unequal burdens on them. Just think of the Roosevelt administration’s shameful efforts to round up and intern individuals of Japanese ancestry based on vague fears of espionage and racist stereotypes during World War II. Or the George W. Bush administration’s expansive theory of executive power after 9/11, which enabled surveillance, detention, and torture—these policies raised concerns that Muslims were being mistreated systematically, too.
The current fight over the wall is of a piece with previous moves by the Trump administration—such as family separation of unauthorized migrants and the Muslim travel ban—and raises the same specter of expansive state power that can be marshaled against vulnerable political minorities. Like Muslim visitors, refugees and other migrants from Central and South America have been demonized as a group for the actions of a few and generally have little political power of their own to influence the debate so as to protect their own rights. Migrants have been called carriers of disease and potential perpetrators of violent crime by this openly xenophobic president. In retrospect, the description of weary migrants as “armies,” “caravans,” and “invaders” in recent weeks may have been rhetorically priming citizens for such a wild power play all along. And in each of these areas, Congress has not sanctioned the president’s policies, leaving him to insist that he alone has the power to fix things.
So we shouldn’t pretend that the president’s flirtation with emergency power is just about a wall. He and some of his key allies want to accomplish other things, too, acting unilaterally if he must. That includes ensuring that some immigrants—especially those from places he’s dubbed “shithole countries”—are treated differently from others, enabling the use of lethal force against migrants, separating family members at the border, and even processing asylum claims differently, depending on who the applicants are and where they come from. If we allow him to gin up an emergency on this occasion, it will be easier to do so for all of these other things that affect foreigners and the dispossessed.
The difficulty of attacking this problem frontally—particularly in the courts—can be seen in the Muslim ban outcome, where five conservative justices deferred to President Trump’s judgment that national security required the exclusion of travelers from certain Muslim-majority countries. Existing jurisprudence requires evidence of malicious purpose before equal protection claims can succeed, and on the surface it might seem that building a giant concrete wall doesn’t single anybody out. To make matters worse, the courts tend to treat foreigners as though they have fewer constitutional rights than citizens, despite the 14th Amendment’s promise to protect all “persons.” Some judges will look the other way when someone cries “equal rights violation” unless there’s a smoking gun. And this is all before we toss in a potential demand for deference to the executive.
That these challenges would emerge during an actual lawsuit doesn’t disturb the fact that extraordinary power has been historically deployed against vulnerable populations and makes life miserable for them. Outside of the courts, we don’t have to subscribe to a few judges’ parsimonious views of what equality demands. Recognizing the link between emergency power abuses and discriminatory action, then, will hopefully cause progressives to redouble political efforts to resist the current charade of Trump’s vanity wall.
Yet, there’s more: how we might handle such a claim of extraordinary presidential power now would have major spillover effects. It has consequences for not only policies that affect foreigners, but also other policies like Trump’s ban on transgender service members, which also rests in part on a strong assertion of presidential prerogative for a blatantly discriminatory action. For an authoritarian populist like Trump, who’s already skeptical of human and civil rights, successful assertions of extraordinary authority can be a slippery slope toward broader and more pernicious actions, which is why this needs to be nipped in the bud now.
Our legal and political tradition has ordinarily held that laws and policies must rest on empirical reality—a real need, not a made-up one—that government power always be justified, that we consider the scale of the emergency a president claims relative to the project he wants to undertake, and that we ask if there are other ways of dealing with the problems identified.
If a president has invoked a law in bad faith, or has made up a crisis out of whole cloth, that should weigh heavily against allowing a policy to proceed. But it’s crucial to see that it’s not just up to judges to determine what constitutes an emergency action—rather, we all have a part to play in helping to determine when it’s reasonable for a president to act on his own.
That collective judgment will have to be expressed in many different ways—by making our views known to our elected officials, by filing and deciding lawsuits if it comes to that, by pushing Congress to vote to override a presidential veto and defund such an effort. But the president’s plan doesn’t just raise a concern about deliberative democracy; it also creates an opportunity to stand up for basic human dignity and equality for all.
*Correction, Jan. 18, 2019: An earlier version of this article misstated that Truman’s steel mill seizure occurred during World War II. It occurred during the Korean War.
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