President Trump has declared a national emergency to obtain funding to build a wall along the U.S.-Mexico border, after lawmakers did not approve the $5.7 billion he’d requested. And in doing so, he has sparked a debate on whether the executive branch can — or should — use its power to unilaterally achieve a policy goal. The president does have an enormous amount of latitude to declare national emergencies, but Trump’s use of the power in this way is unusual and could have far-reaching consequences.
“A Democratic president can declare emergencies as well,” House Speaker Nancy Pelosi warned Republicans on Thursday. “So the precedent that the president is setting here is something that should be met with great unease and dismay by the Republicans.”
The action raises problems of both principle and precedent for some right-leaning and libertarian legal specialists. But others argue that Trump’s action is probably legal or say they’re not especially worried about potential consequences down the line.
First of all, some legal experts see a fundamental problem with Republicans’ endorsement of a potentially dramatic expansion of executive power. There is a potential case to be made that Trump’s action, regardless of what it means for the future, violates basic principles of limited-government conservatism, which is generally opposed to executive overreach and supportive of a strong separation of powers. “I think it’s problematic in general, regardless of the legality, for the president to stretch his authority under these broad statutory delegations in ways that haven’t been done before,” said David Bernstein, a professor of law at George Mason University. “It gives the president more power to act unilaterally, and that’s not the way our system is supposed to work.”
Bernstein added that he blames former President Barack Obama for beginning this trend. First in 2012 and then again in 2014, Obama issued sweeping executive orders that protected young undocumented immigrants who were brought to the country as children. But he said Republicans shouldn’t allow this kind of executive overreach to continue, particularly for an expensive project like the wall. “It’s not just that overly broad executive power is being endorsed here — it’s being endorsed for a quintessential big-government boondoggle,” he said.
The question of property rights is another potentially sticky issue for conservatives, because Trump will likely need to use eminent domain — the government’s power to take private property and put it to public use — to seize much of the land he needs for the wall, according to Ilya Somin, who is a law professor at George Mason and identifies as a libertarian. Conservatives and libertarians both tend to be critical of eminent domain in general, and members of his own party have criticized Trump in the past for his history of support for the tactic and his attempt to use it in a real estate project. “Building this wall will require the seizure of a large amount of private property without congressional authorization,” Somin said. “To the extent that Republicans support Trump on this, they deserve censure for that.”
Others, however, pointed out that Trump isn’t drawing on powers that don’t exist — he’s acting within the broad authority that was given to the president by Congress. “This is not the president making stuff up,” said Josh Blackman, a professor at the South Texas College of Law Houston. But Blackman said that just because Trump’s action may be legal, that doesn’t mean Congress has to go along with it — and he thinks they shouldn’t. “The president asked for the authority to build this wall, Congress said no, and now he’s trying to go around Congress,” he said. “Do I think that’s a good idea? No. But I think the president probably has the authority to do this.”
John Malcolm, a senior legal fellow at the right-leaning Heritage Foundation, said he’s “not overly concerned” about future Democratic presidents declaring a national emergency to achieve their own policy goals because the declaration would need to be grounded in a statute and he doesn’t think there is an obvious candidate to use for something like climate change. “The president doesn’t get to declare a national emergency about anything,” he said. “I think creative presidents might try to do various things along these lines in the future, but they won’t necessarily be successful.”
He added that he’s inclined to trust Trump when he says there’s an emergency that justifies immediate action. “I think there’s no doubt that the threats the president is describing along our southern border are real,” he said. “The real shame is that Congress hasn’t worked with him to come up with a more workable solution that responds to those threats. It seems to me that they’re not doing that because they just don’t like this president.”
But Somin and Bernstein both said they thought Trump was setting a dangerous precedent — future Democratic presidents might want to declare a national emergency of their own over something like gun violence or climate change. “This is how slippery slopes work,” Bernstein said. “One president breaches the norm, then another president breaches it more, and it just keeps going.”
Trump’s declaration of a national emergency is now headed for what will almost certainly be a lengthy court battle. The more immediate question is how Republican politicians will respond. Congress has the power to terminate a president’s emergency declaration through a joint resolution of disapproval, but the resolution would need to pass with veto-proof majorities in both chambers to be successful.
Some Senate Republicans have already voiced concerns similar to Pelosi’s. Sen. Marco Rubio said that “today’s national emergency is border security” but also said that a future Democratic president “may use this exact same tactic to impose the Green New Deal,” a policy framework recently proposed by Democrats that calls for large public investments to combat climate change. But other Republicans — including Senate Majority Leader Mitch McConnell — have changed their public positions; after originally opposing a national emergency declaration, they are now lining up behind the president. In the coming days and weeks, they’ll have a tough choice: whether to back the president or rebuke him.
From ABC News: