Donald Trump’s state of emergency sets an alarming precedent

His presidency shows there is little that can’t be justified in pursuit of ‘national security’

A US border patrol drives near a section of reinforced US-Mexico border fence near Tijuana. Photograph: Guillermo Arias/Getty Images

A US border patrol drives near a section of reinforced US-Mexico border fence near Tijuana. Photograph: Guillermo Arias/Getty Images

 

The news that 16 states are to sue the Trump administration for declaring a national emergency to appropriate funds for the building of a border wall between the United States and Mexico comes as no surprise.

A legal challenge to Trump’s decision was inevitable, given that this declaration represents an overreach in presidential powers, and considering Donald Trump’s own admission that he “didn’t need to do this”, but had decided to do so as he wants to get the wall “done faster”.

The United States is no stranger to national emergencies – it is currently living under 31 of them.

For the most part, these national emergencies concern sanctions and trade, referencing specific persons and objects.

Customs and border protection data show that unlawful entries to the US through its southern border are at near-45 year lows

Trump himself had already declared three national emergencies prior to his most recent declaration (for example, one imposing sanctions in the event of foreign interference in a US election).

His “National emergency concerning the southern border of the United States” is different, because it goes directly against the wishes of Congress, which has, on numerous occasions, refused to divert funds to the Trump administration for building a wall.

What also makes this national emergency different is that Trump has declared the emergency on the southern border requires the use of the armed forces, and as such, that military funds can be used to construct the wall.

Donald Trump: in a sense his wall is just another drug. For his fans, it is a fix of xenophobia that dulls the pain of the real epidemic that is blighting their lives and their own communities. Photograph: Jim Young/Reuters
Should the case of the National Emergency reach the supreme court – as it very likely will – the court’s decision may come down in Trump’s favour Photograph: Jim Young/Reuters

National emergency

The National Emergencies Act of 1976, under which Trump derives his authority to declare a national emergency, does not allow for presidents to “create” national emergencies. A national emergency must exist in fact.

Any legal deliberation on this declaration will have to ascertain whether, in fact, and as the Trump administration alleges, “the situation at the southern border presents a border security and humanitarian crisis that threatens core national security interests and constitutes a national emergency”.

While Dan Coates, the director of National Intelligence, told the Senate in January that migrants from Central America represent a threat to the national security of the US, there is little credible evidence to prove that the situation on the southern border itself represents a national emergency.

As the 16 states suing the Trump administration note, customs and border protection data show that unlawful entries to the US through its southern border are at near-45 year lows.

What other options are open to ending Trump’s national emergency?

Another avenue of argument for the plaintiffs lies in Trump’s reliance on section 2808 of title 10, United States code, which provides for the use of military construction funds in national emergencies.

For Trump to successfully appropriate military funds to construct the wall under this section, his administration will have to prove that this national emergency requires the use of armed forces, and that the wall is a military construction project necessary to support this particular use of armed forces.

And yet, should this case reach the supreme court – as it very likely will – the court’s decision may come down in Trump’s favour.

Courts are generally reluctant to decide against the president on questions of national security and tend to show deference to executive branch prerogative in this area (courts have denied the justiciability of cases related to the killing of individuals in US drone strikes, for example).

There are a few exceptions, and the most relevant precedent in this case is that of Youngstown Sheet & Tube Co v Sawyer, in 1952. In that instance, president Harry Truman, having signed an executive order, attempted to seize control of privately owned steel mills to avert a national steel worker strike.

Truman argued that the continued operation of the steel mills was essential to the country’s defence, as the US was at that time in the middle of the Korean War. The supreme court found against Truman, stating that the president did not have the right to seize private property and operate the steel mills, whether or not it was necessary for the national defence.

Again, this is a rare exception, and courts do not usually second-guess the president when it comes to national security matters.

What other options are open to ending Trump’s national emergency?

On Friday, Democrats in the House of Representatives filed a “resolution of disapproval” aimed at ending the declared national emergency, but it is unlikely that this will ultimately succeed.

Presidential veto

Trump’s aides have already made it clear that any resolution passed by Congress aimed at ending the national emergency will face a presidential veto, and if a resolution is to override a presidential veto, it must have the support of two-thirds of each chamber of Congress.

Given that Republicans currently control the Senate, this may be difficult to achieve.

If this case reaches the supreme court, and the court finds that Trump’s declared national emergency is lawful, a dangerous precedent would be set.

The powers of the president, already quite broad in the realm of national security and foreign policy, would be strengthened. The role of Congress in overseeing matters of national security would be weakened further.

Civil-military relations, already suffering under the Trump administration, would sustain more damage. Most worryingly of all, such a decision would demonstrate that there is very little that can’t be justified in the pursuit of “national security”.

Catherine Connolly is a teaching fellow in politics at the school of law and government at DCU

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