Despite the budget compromise, Donald Trump threatens to use a national emergency to get more money for a wall on the border with Mexico. But there are hints that the president actually has something very different in mind.
Nancy Pelosi, the speaker of the House of Representatives, allowed herself some applause from her colleagues this evening. The spending bill was said to be a great bipartisan victory − after all, it did prevent another shutdown. The Senate had already approved it, too. But what looked like a good day for Republicans and Democrats is for President Donald Trump one of the greatest defeats of his time in office.
He’s supposed to sign the compromise on Friday, which only provides $1.375 billion for new barriers along the southern border. Trump’s campaign promise once claimed that Mexico would pay for the wall − and now he also isn’t getting the requested $5.7 billion from Congress.
The president doesn’t want to accept that. Senate Majority Leader Mitch McConnell announced on Thursday that President Trump would sign the bill but would also declare a national emergency on Friday. By declaring the border to be under a state of emergency, which he could justify, for instance, by it being a humanitarian crisis, he would get around Congress. Thursday evening, they discussed $8 billion for the wall that Trump wanted to thereby secure. With a national emergency, he could redirect funds from the military’s civil construction projects, among other things.
Democrats Talk about Abuse of Power
His predecessors George W. Bush and Barack Obama declared national emergencies after the Sept. 11, 2001 attacks and for the swine flu pandemic in 2009, for example. Such a declaration doesn’t automatically mean restricting basic liberties throughout the country, as some commentaries initially made it appear. Some articles of the National Emergencies Act of 1976 include wide-ranging powers for the president, but he doesn’t automatically exercise them when an emergency is declared. Such powers include the right to seize goods and property and to control the means of transportation and communication.
The Democrats accused the president of abusing his power and attacking democracy. Trump was demonstrating his “disregard for the rule of law,” said Pelosi and Senate Minority Leader Chuck Schumer.* Just because Trump was stoking fear of immigrants didn’t mean the situation came close to being an emergency along the border. “This is an attempt to overturn the basic constitutional doctrine of separation of powers. Congress has the power of the purse. It cannot be tolerated,” said the chair of the House of Representatives Judiciary Committee, Democrat Jerrold Nadler of New York.
A national emergency can be blocked by a resolution approved by both houses of Congress. The Democrats announced that they would be quickly preparing such a resolution with their majority in the House of Representatives. If the Senate does not approve it, they will take legal action, according to Nadler.
The Republicans have a 53 to 47 majority in the Senate. A resolution against Trump’s planned emergency would need a simple majority, but it could be vetoed by Trump. It may be that Trump just wants to test the waters in Congress with his evening announcement and will eventually end up trying to secure funds for his wall with multiple executive orders instead of a national emergency. **Matt Gaetz, a Republican representative from Florida, suggested as much this evening on CNN. There could be locally applicable orders that could be justified as part of the fight against drug smugglers.
But even with an executive order, Trump would antagonize many in his own party; for example, if he were to try to redirect funds from hurricane aid for regions like Florida or Puerto Rico. And his opponents can challenge such orders in the court, as they have successfully done in other cases − for instance, with the initially very extensive travel ban on people from certain Muslim countries.
Republicans Warn Trump
Many Republicans who previously warned Trump against this step were silent on the topic this evening. McConnell, who has advised the president multiple times against declaring an emergency, now seems to be waiting for Trump’s next move. Others have reiterated their warnings. “My concerns about an emergency declaration were the precedent that’s going to be established. I also thought it would not be a practical solution,” John Cornyn, a senator from Texas, told CNN.
Sen. Susan Collins of Maine said that she considered Trump’s decision a mistake. “The National Emergencies Act was intended to apply to major natural disasters or catastrophic events, such as the attacks on our country on 9/11.” Declaring an emergency to build the wall could be “of dubious constitutionality,” the Republican said. Others were more appeasing. Several Republicans commented that there were various precedents for declaring a national emergency. Sen. Mitt Romney of Utah said that it was still unclear which particular funds Trump would utilize.
For many Republicans, it’s not only that Trump could go around Congress in governing. They worry that Trump could set a precedent for the future. He would declare an emergency for a situation that doesn’t constitute a real one, and then future presidents, too, could be more authoritarian in their governance. Florida Sen. Marco Rubio warned in an interview in early January, “[T]omorrow the national emergency might be climate change − so let’s seize fossil fuel plants or something.” Pelosi said on Thursday, “A Democratic president can declare emergencies as well. So the precedent that the president is setting here is something that should be met with great unease and dismay.”
In the end, it could depend on extensive Trump's support is within his own party − and when the situation becomes too politically risky for Republicans.
*Editor’s note: Although this quote was accurately translated, it could not be verified.
**Editor's note: This article was originally published immediately before President Trump declared a national emergency along the southern border with Mexico on Feb. 15, 2019.