President Donald Trump wanted $5.7 billion to build a border wall. But Congress gave him only $1.4 billion. So on Friday, Trump declared a national emergency. He claimed authority, based on the 1976 National Emergencies Act, to build his wall using money that Congress had assigned to other purposes.
This is an affront to the Constitution, which says, “No money shall be drawn from the Treasury but in consequence of appropriations made by law.” It’s also a reversal of what Trump and his party said years ago: that President Barack Obama had no right to circumvent Congress through executive orders. Nevertheless, Republicans are inventing excuses to support Trump’s power grab. Their arguments are dishonest and anti-democratic.
1. We’re at war. The classic emergency situation is an attack on the United States. In that scenario, most people would accept unilateral action by the president. So Trump tries to make border crossings sound like a military assault. On Friday, at a press conference announcing his declaration, he used the word invasion seven times. The “national security crisis on our southern border,” Trump asserted, was “an invasion of drugs, invasion of gangs, invasion of people.” The “crisis,” Trump contended, was more urgent than fighting “wars that are 6,000 miles away.” House Republican Leader Kevin McCarthy agreed.
This “invasion” is a charade. Illegal border crossings and apprehensions of gang members are in decline. But to Republicans, anyone crossing the border counts as an invasion. In a Sunday interview on ABC’s This Week, Republican Rep. Jim Jordan warned of “an endless caravan.” He challenged Democrats: “How many caravans do we have to have before it’s an emergency?” On Face the Nation, Sen. Lindsey Graham portrayed the border as a zone of armed conflict and inferred that the commander in chief could use military assets to build a wall. “It’s pretty hard for me to understand the legal difference between sending troops and having them build a barrier,” said Graham.
2. Drugs are a weapon of mass destruction. Since government statistics don’t support Trump’s claims about gangs and migrants pouring in, the White House has increasingly focused on what Trump calls the “invasion of drugs.” The president’s senior policy adviser, Stephen Miller, depicts traffickers as a military threat. On Fox News Sunday, Miller said “international narco-terrorist organizations” were “destabilizing the Western Hemisphere.” Declaring an emergency to battle these “criminal cartels operating on our border,” he argued, was as valid as sending troops “to destroy drug fields in foreign lands.”
This, too, is hype. It doesn’t justify building a wall, since most drugs come in through legal ports of entry. So Republicans appeal to fear, as they did years ago when they advocated for the invasion of Iraq. This time, the alleged weapons of mass destruction are opioids. On Sunday, Jordan said a recent drug bust on the Arizona border showed the need for a wall. He brushed aside two inconvenient facts: that the drugs had come in through a port of entry and that the current system had caught them. All that mattered, Jordan asserted, was that the haul included “enough Fentanyl to kill 57 million Americans.”
When Republicans can’t support their claims about drugs pouring in through unfenced border areas, they retreat to speculations that can’t be disproved. Fox News host Chris Wallace reminded Miller that “80 to 90 percent of those drugs don’t come across in unfenced areas. They come from ports of entry. Those are your own Customs and Border Patrol numbers.” Miller replied that unknown and presumably dangerous quantities were coming in through unfenced areas. On Face the Nation, Graham gave the same answer: “For every [load of drugs] we get, God knows how much we miss.”
3. We need a wall to protect our troops. Just before the midterms, Trump sent thousands of troops to the border, ostensibly to block migrant caravans. The deployment, coordinated with the GOP’s campaign to turn out anti-immigration voters, was nakedly political. Now Trump is exploiting the troops again. He claims that their vulnerability to caravans, gangs, and other border threats requires construction of a wall to protect them. In a letter to Congress explaining his emergency declaration, the president cited a law that authorizes “emergency construction … to support the use of the Armed Forces.”
This rationale, known as force protection, is a well-known path to military entanglement. First you send troops. Then you send more troops and equipment to protect the original troops. Pretty soon, you’re all the way in. Trump is applying this mission-creep recipe to our own border. If he had declared an emergency “to build a security perimeter in Iraq or Afghanistan or around a military installation in Syria, there would not have been one word of objection from Congress,” Miller argued on Fox News Sunday. “This is defending our own country. … We have 4,000 troops on the border right now, and as a result of that mission, they need to secure those areas where they’re patrolling.”
4. No means yes. The Emergencies Act has never been used to override a decision of Congress. Yet that’s exactly what Trump is doing. Congress refused to give him more than $1.4 billion for fence construction, but he’s seizing another $7 billion anyway. To justify this heist, Trump and his surrogates falsely insinuate that Congress, by offering some money for construction, invited the president to take more. On This Week, Jordan dismissed the $1.4 billion limit Congress put on money for fence construction. “This wasn’t a rejection, because there was some money for the wall in this bill,” the congressman argued. All Trump did, according to Jordan, was properly fund the mission Congress had authorized. When ABC’s Martha Raddatz pointed out that “Congress specifically rejected more money,” Jordan brushed her off.
Miller offers a broader argument: Congress consented to Trump’s money grab by passing the Emergencies Act. When Chris Wallace pointed out that Trump was “taking money that Congress refused to appropriate,” Miller disputed that statement. Lawmakers “didn’t refuse to appropriate it,” said Miller. “They passed a law specifically saying the president could have this authority.” Essentially, Miller argued that the will of a Congress 43 years ago, nearly all of whose members are dead or gone, supersedes the will of Congress today.* Wallace then asked him what Trump would do if Congress passed legislation rejecting the emergency declaration. Would Trump veto that legislation? Yes, said Miller: “The president is going to protect his national emergency declaration.” So Trump doesn’t care about the will of Congress, no matter how explicit it is.
5. You made him do it. While some Republicans say Congress has consented, others say Congress has obstructed Trump, forcing him to take matters into his own hands. His emergency declaration “is the predictable and understandable consequence of Democrats’ decision to put partisan obstruction ahead of the national interest,” according to Senate Majority Leader Mitch McConnell. White House press secretary Sarah Huckabee Sanders agrees, chiding lawmakers who “should have done more” to secure the border “so the president wouldn’t have to take executive action.”
This echoes what Republicans said during the recent government shutdown. They blamed that standoff on Democrats who failed to give Trump the wall money he demanded. The GOP’s defense of the emergency declaration, like its defense of the shutdown, favors the bully: If you don’t appease him, you’ll get what’s coming to you. Since Congress “will not give [Trump] what we’ve given past presidents,” said Graham, “he’s got to do it on his own. And I support his decision to go that route.”
These arguments are false and twisted. Migrants aren’t a military threat. The border isn’t a war zone. Baseless troop deployments don’t justify the construction of walls to support them. When Congress says no, it means no. And when a president overrides the will of Congress by asserting emergency powers, he’s not saving America. He’s destroying what makes it America. A party that offers excuses like these isn’t republican. It’s authoritarian.
Correction, Feb. 20, 2019: This article originally stated that all members of the Congress that passed the 1976 National Emergencies Act were “dead or gone.” Two members of that Congress remain in the current Congress: Sen. Patrick Leahy of Vermont and Rep. Don Young of Alaska. Young did not vote on the Emergencies Act. Leahy’s vote was unrecorded since the Senate passed the bill by voice vote.
Support our independent journalism
Readers like you make our work possible. Help us continue to provide the reporting, commentary and criticism you won’t find anywhere else.Join Slate Plus