Defenses of Trump’s Emergency Declaration Defy the Plain Language and Clear Intent of the Law

Source: National Review | January 10, 2019 | David French

Each abuse builds on the next; hypocrisy builds on hypocrisy.

There is a common strain of argument amongst those who would abuse and debase our constitutional system of government. They manufacture deceptive dreck in the knowledge that their loyal partisan friends will swallow anything to get what they want. Remember when Barack Obama repeatedly declared that he couldn’t bypass Congress and implement unilateral immigration reforms — including suspending deportations — but then did it anyway?

Oh, that’s fine, said the partisans. It’s just “prosecutorial discretion.” No, it wasn’t. He created entirely new programs — new government benefits — and not only did he do so without Congress, but he did so without even observing the formalities of the Administrative Procedure Act. His homeland-security secretaries simply wrote memos.

Now it looks like it might be Donald Trump’s turn, and once again partisans are tripping over themselves to disregard the law in service of their imperial president. He doesn’t need Congress, they say. The law gives him the authority to declare an emergency and build his wall anyway. But if that’s true, why is the government shut down? Why are we going through this ridiculous charade? Why didn’t he declare an emergency and build the wall months ago? Why didn’t he deal with this crisis the moment he walked into office?

The answer is simple. If you look at the plain language and clear intent of the relevant statutes, they do not permit Trump to defy Congress and build his wall. He knows it. Congress knows it. His own lawyers know it.


Moreover, as the legislative history makes clear, the fundamental purpose of the act was to restrain presidential power, not to enable a president to act without Congress simply because Congress won’t do what he wants.

Yes, presidents abuse the law anyway. And Congress refuses to stop them. And each past abuse is used to justify future abuses. We live under 28 separate states of emergency now, with one dating back to the Iranian hostage crisis. So what’s one more abuse in 2019?

Well, how about if the abuse requires you to gut the meaning of several statutes? For example, how about the assertion that the emergency on the border “may require” the use of the military? Don’t forget, in the United States, border security along a border with an allied nation is a civilian mission. It’s a mission managed by the civilian Department of Homeland Security. Border security has been enhanced in recent years by the addition of new civilian Border Patrol officers and the construction of civilian structures, not military fortifications.

Yes, Trump deployed troops to the border in the run-up to the midterms. But if deployment alone is proof of necessity, look for the day when a Democratic president sends troops to help build windmills. After all, at least in that case there’s an actual Pentagon document declaring climate change an “immediate risk” to national security.


But even if you can credibly argue that a national emergency exists, and that the emergency may actually require the use of military assets, how do Trump’s defenders argue that the construction of his wall is actually already “authorized”? Easy, they say. Congress passed the Secure Fence Act in 2006, and it authorizes the construction of fencing on defined sections southern border.

But wait. That project is almost entirely complete. The original act required specific fencing, but when DHS complained that different parts of the border required different kinds of barriers, Congress amended the act to merely require DHS to erect fencing, physical barriers, or “roads, lighting, cameras, and sensors” in specific areas along the Mexican border. By 2011, DHS declared that it had finished 649 out of the planned 652 miles of fences and other barriers. In other words, the construction project — as defined by the statute — was more than 99 percent complete.

So, is the argument that Trump can declare a national emergency to upgrade a completed fencing project? But where is the authority for the upgrade? In our system of government, Congress holds the power of the purse, and it authorizes new construction — even where old construction exists.


Can we be honest about these arguments? Vanishingly few people in good faith believe that any of the statutes above were intended to empower the construction of Trump’s promised new wall. It’s a strain to argue that they even encompass upgrades to existing walls. Not even the Trump administration believes they were intended to empower the president to build the wall. Has Trump previously sought appropriation from Congress as a mere matter of professional courtesy?

No, this is an attempted abuse of the constitutional order that is justified mainly by the existence of previous successful abuses of the constitutional order. Each abuse builds on the next; hypocrisy builds on hypocrisy. The only clear winner is the imperial presidency. The loser is our constitutional republic. And each Trump fan cheering his raw power grab will be a furious partisan when the next Democratic president builds on Trump’s abuse.

Congratulations, partisans. You claim you’re saving our country. In reality, you’re wrecking our constitution.

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