On Friday, February 15th, President Trump declared a national emergency to secure funding for his wall after failing to get this funding from Congress. As I write this, 16 states are challenging the emergency declaration in court.
While I believe that there are certainly more effective ways to deal with the issue of illegal immigration than building a physical wall, Trump's actions are not only disturbing as a matter of public policy; they fundamentally upend the constitutional norms of our federal government, subverting our precious system of checks and balances and fueling Trump's authoritarian tendencies.
The Constitution clearly gives Congress the power of the purse. Congress is the body that is supposed to decide how to spend taxpayer money, and on what federal policy programs. So controlling government revenue is the domain of the legislative branch, not the executive. The Trump Administration has invoked the National Emergencies Act of 1976 to justify the President's action. While this statute certainly gives Presidents sweeping authority to declare an emergency, the act has up until now been used only for real emergencies, like a terrorist attack or a hurricane.
Bush declared a national emergency after Hurricane Katrina and Obama declared one to deal with the Swine Flu Epidemic. The purpose of the act was to allow the President to immediately deal with a crisis and direct the resources of the federal government to this end. By taking this law and applying it to his signature policy issue to build his vanity project, Trump is going against the legislative intent and circumventing the will of Congress while usurping their constitutional authority.
Illegal immigration certainly is an important policy issue and the US immigration system is in dire need of reform. But to say, as Trump does, that this is a national emergency is the textbook definition of fear-mongering, blowing up a problem for the sake of political gain. If Trump cared about facts, he would acknowledge that illegal border crossings have in fact declined in recent years. Even the use of the word "invasion", conjuring up images of war and disease reflects Trump's ugly xenophobia.
The National Emergencies Act allows the President to direct military construction that is necessary to support the armed forces; Trump's wall does not fit that description. While such action helps Trump with his base, it does violence to the fundamental norms of our political system. The Founding Fathers are probably rolling in their graves.
It's also been frustrating to see Republicans, who constantly claim to wholeheartedly defend the liberty of Americans against big government, falling in line. Republican politicians who regularly criticized Obama for his immigration executive orders are now supporting this unconstitutional overreach. During the Obama Administration, conservatives constantly complained about an Imperial Presidency.
Now that a Republican is in the White House doing using executive power to do something they like, they have forgotten these concerns. But this new embrace of expanded Presidential authority may come back to haunt Republicans when a Democrat wins the White House and starts declaring national emergencies over climate change and gun violence.
At the end of the day, it comes down to this- If, as the Trump Administration seems to believe, the President has the power to declare a national emergency over any important issue of public policy, then our country isn't a constitutional republic; it's a dictatorship. Though I don't think Trump has even read the Constitution. To echo Khizr Khan's iconic moment at the 2016 Democratic Convention, I would gladly lend him my copy.
