When President Donald J. Trump publishes his declaration of a national emergency requiring the construction of a wall on our southern border, that document will bear the formal signs of normal governance. The order will recite findings or at least assertions of fact. It will cite statutes—the act that authorizes its issuance and the statutes the president is triggering by signing his declaration. The same will be true of the complaints and legal briefs inevitably to be filed in its wake. There will be arguments familiar to administrative lawyers about standing, ripeness, reviewability, and statutory interpretation.
But hovering over all the familiar legal forms and practices is the depressing reality that Trump, as always, is endeavoring to hollow out the constitutional system of checks and balances. There is no national emergency at the border other than the tragedies of his creation. Gangs, sex traffickers, and drug smugglers are not invading the United States. His “crisis” is that Congress has refused to fund a campaign fantasy he promised that Mexico would pay for, and the smell of political defeat is more than he can bear.
Trump’s fecklessness is most obvious when you realize that if his declaration could produce the lawful construction of his promised wall, the partial government shutdown—and the pain imposed both on the economy in general and on thousands of American families specifically—was utterly pointless. Even odder is the fact that one of the statutory authorities Trump is expected to set in motion is the Defense Department’s authority to provide assistance to counter drug trafficking and organized crime. That authority, however, is within the department’s regular quiver of statutory powers. If legally available to build the wall, it is no more or less available than it was before the government shutdown or before Trump’s declaration.
Here’s the way our forthcoming judicial confrontations are likely to unfold. Trump is relying on the 1976 National Emergencies Act, which permits presidents to declare “national emergencies,” a term it does not define. Such declarations, however, do virtually nothing by themselves. Presidents have to cite yet other statutes that allow the president or other administrators to exercise specific powers once a national emergency has been declared.
The president’s opponents will argue that the circumstances at our border do not constitute an emergency—and certainly not an emergency to which a wall is an appropriate response. They will point out that the pace of the president’s actions, not to mention his rambling public statements, belie the “emergency” characterization. After all, the president stood in the Rose Garden and said, “I didn’t need to do this. I just wanted to do it much faster. The only reason we’re up here talking about this is because of the election.”
His challengers will also point out that Trump’s declaration goes in obvious ways both beyond what the 1976 Congress would have envisioned or what any of his predecessors have attempted. No previous declaration was issued to accomplish a funding outcome that Congress, despite the president’s pleading, had rejected. Most have authorized Cabinet departments to impose specific national security–related export controls or limits on some category of financial transactions. These are authorities that can be executed on the day the president declares an emergency; they are not precursors to a multiyear construction project.
The Department of Justice, newly headed by William Barr, will mount the all-out defense of executive power for which Barr has always been known. The department will argue that the text of the National Emergencies Act must be implemented as broadly as it was written and that presidents deserve maximum deference in making determinations of national security.
Trump’s defenders will point to Trump v. Hawaii to argue that the Supreme Court will ultimately side with this president and uphold the aggressive use of his authority. In that case, the court majority willfully turned its face away from Trump’s bigotry and mendacity. In rejecting the argument that Trump had exceeded his statutory authority under the Immigration and Nationality Act, the court insisted, “[P]laintiffs’ request for a searching inquiry into the persuasiveness of the President’s justifications is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere.”
As for the constitutional argument that he was violating the Establishment Clause in issuing the travel ban, the court fully deferred to his executive authority:
[T]he issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself.
If the court again proves reluctant to void a Trump declaration of executive power under the auspices of national security, however, it will not as easily be steered away when it comes to the order’s implementation. The biggest pot of money Trump expects to reallocate will come from the Military Construction Codification Act. When the president declares a national emergency “that requires use of the armed forces,” the Secretary of Defense is authorized to “undertake military construction projects … that are necessary to support such use of the armed forces.” This immediately raises the question of whether building the wall is a necessary or even lawful use of the military. Moreover, the statute defines “military construction” as construction of a “military installation,” which, in turn, means only “a base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a military department.” None of this sounds like a border wall.
Playing out these arguments in court will take years—all in addition to the inevitable lawsuits should the government try to condemn through eminent domain the private property it needs to build the wall. And even if the challengers prevail, all of this energy will have been necessary only because of a presidential determination to treat as an “emergency” a set of circumstances that is anything but.
Congress could—and should—put a stop to this nonsense now. Under the National Security Act, it can nullify a declaration of national emergency. It can also just pass a statute providing that, for purposes of building a border wall, no funds shall be reallocated pursuant to whatever statutes Trump cites. Any self-respecting legislative branch would stand up to Trump’s aggression by a vote so overwhelming as to overcome any veto threat. Such resistance, unfortunately, is altogether unlikely.
As a result, we are left with the forms and practices of normal law to try to discipline an abnormal president. He has been and will continue to be enabled by lawyers wishing to push their interpretations of presidential authority to the maximum extent consistent with the dictionary, a practice the new attorney general championed for an earlier president and will no doubt champion again. Trump made clear that his hopes ride on the sympathies of the Supreme Court, which now, with Brett Kavanaugh, has justices who may well be more indulgent of executive prerogative than any bench since World War II. The extent to which there actually remains a meaningful constitutional check on this president’s assertion of extraordinary powers will be tested in the months and years ahead, but the outcome our Constitution would seem to demand is by no means guaranteed.