In his State of the Union address, President Trump did not declare a national emergency at the southern border so that he can build a wall without Congressional approval – but he clearly laid the groundwork for it.
Congress take heed. It would be an outrageous abuse of Trump’s legal power. If Trump does declare a border emergency, Congress should respond to such an unprecedented move with one of its own: A vote to rescind the emergency declaration and deter future executive overreach.
Trump devoted much of his prime-time speech to make the case for a wall that he promised voters he would build. In the address, he called the border an “urgent national crisis,” painted a dire (and misleading) picture of danger and violence, and said Congress has “10 days left to pass a bill.”
While Trump left unspoken what he’d do at the end of those 10 days, he said of the wall: “I will get it built.”
Under various federal laws, presidents can decree a national emergency, a designation that allows them to move money out of the Department of Defense construction budget to meet urgent needs. The law is meant to ensure speedy responses to international crises, epidemics, and similar sudden events. The law’s intent is not to provide a way to circumvent policy differences. But that’s transparently what the president would be doing if he used it now. Remember, Trump first promised that Mexico would pay for a wall at the border. When that didn’t work, he began trying to chisel money out of US taxpayers. Stymied by Congress, the administration has reportedly been considering an emergency declaration to pay for the wall with money diverted from other parts of the budget.
But there hasn’t been any major change at the border that could plausibly be called an emergency. In fact, the number of people detained at the border is down 75 percent since 2000, according to the US Border Patrol’s own data. The only emergency here is political: The president is desperate to deliver on a campaign promise.
Still, some Republicans, including Senator Lindsey Graham of South Carolina, want Congress to butt out — blessing, through inaction, the creation of a major new loophole for presidents to spend money without authorization.
That would be a historic mistake. If Congress allows Trump to raid the Pentagon for a wall, there’s not much doubt that future presidents will take advantage of the precedent.
One Republican who seems to get that, John Cornyn of Texas, put it this way: “The whole idea that a president — whether it’s President Trump or President Warren or President Sanders — can declare an emergency and then somehow usurp the separation of powers and get into the business of appropriating money for specific projects without Congress getting involved is a serious constitutional question.”
Luckily, the law that gives Trump the power to declare emergencies also gives Congress a clear avenue to prevent its abuse. Although the power has never been used, Congress can overrule an emergency declaration.
But if Trump declares a border emergency, congressional Republicans do nothing, and the next Democratic president takes advantage of the new loophole in ways the GOP doesn’t like, they better not come complaining.