President Trump Should Never Have Declared a National Emergency

On Thursday, the Senate rightfully voted to shoot down President Trump’s declaration of a national emergency intended to obtain funding for a border wall. While the construction and maintenance of a sufficient barrier is incumbent upon any sovereign state in order to ensure the safety of its people, the president’s wall was dead when Congress killed it; and, furthermore, his national emergency declaration was dead on arrival.

On the campaign trail, then-candidate Donald Trump promised voters that his administration would oversee the funding and construction of a wall along the U.S. southern border and, of course, that Mexico would pay for it. President Trump then spent the first two years of his tenure unsuccessfully forwarding this agenda until his plans hit a wall this winter after Congress refused to allot sufficient funding. The longest government shutdown in history ensued.

Now, Congressional Democrats’ refusal to provide sufficient funding for the border wall in December was a blatant and indefensible disregard for border security. But, the president, in this specific situation, was wrong to bypass Congress in declaring a national emergency to obtain funding that was not allotted to him. This was a barefaced abuse of executive authority.

I have frequently criticized many of President Obama’s policies for expanding the reach and influence of the executive branch, but that is precisely what President Trump is doing now. It was gross when President Obama did it and it is gross when President Trump does it.

In January, President Trump stated, “I have the absolute right to do national emergency if I want…my threshold will be if I can’t make a deal with people that are unreasonable.” While it was unreasonable for Congress to reject his request for $5.7 billion in funding, particularly considering the importance of border security, the president has no business bypassing a congressional dictate.

Yet, President Trump immediately sought to invoke either 10 USC §2808 or 10 USC §284 in order to ram through his agenda.

10 USC §2808 states the following:

“In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act, [the president may undertake] military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces.”

There is not a strong argument to be made that the military ought to override Congressional power in this particular instance. Furthermore, the president would be setting a dangerous legal precedent moving forward. If the executive branch overrode Congress to seize unallocated funding and the courts upheld the president’s decision to do so, the power of the president would increase exponentially and indefinitely moving forward. On the back of that legal precedent, the next Democratic president would then have the authority to seize funding for a potentially radical, economically-damaging climate change agenda; and the executive branch’s authority to do so would nullify a Republican-controlled Congress’s authority to deny it. Need we even speculate?

As Rep. Ilhan Omar (D-MI) tweeted, “Our next President should declare a #NationalEmergency on day 1 to address the existential threat to all life on the planet posed by Climate Change.”

The sword cuts both ways here.

Additionally, President Trump was eyeballing 10 USC §284 which grants the Secretary of Defense authority to “provide support for counterdrug activities,” limited, of course, to “maintenance, repair, or upgrading of equipment.” Obviously, the construction of hundreds of miles of new barrier does not meet the requirements of this provision.

President Trump had the longest shutdown in American history to negotiate with Democrats to obtain funding for what ought to be a bipartisan proposal. After Congress objected, however, the president had no legitimate path to bypassing the legislative branch in order to forward his own agenda. The president’s attempt to sidestep Constitutional checks and balances is abhorrent and entirely counterproductive.

If Republicans want to build a wall, they need to obtain congressional seats during democratic elections. They had the opportunity to do this in 2018 and will again have the opportunity to do so in 2020. Unfortunately, that’s not the path the president seems to be pursuing.

Following the Senate’s vote, President Trump tweeted, “I look forward to VETOING the just passed Democrat inspired Resolution which would OPEN BORDERS while increasing Crime, Drugs, and Trafficking in our Country.”

This is not going to end well.

The president has no legal authority to override Congress nor does he have the votes in Congress to advance this particular issue. President Trump is certainly a fighter, but even the best can be punch-drunk.

As Sen. Lamar Alexander (R-TN) stated, “Our nation’s founders gave to Congress the power to approve all spending so that the president would not have too much power. This check on the executive is a crucial source of our freedom.”

No president is above the Constitutional checks and balances of the U.S. government which have endured successfully for the last 230 years. The ends do not justify the means and President Trump needs to get on board with that proposition.  Thursday’s vote, which included 12 Republicans, was the beginning of a potential mutiny within the GOP. If President Trump doesn’t build a retaining wall around his own executive authority, 2020 might see the GOP overthrow its captain.