WORD AROUND the campfire, or at least Twitter, is that President Trump has signed off on the budget deal, without the $5.7 billion for his very partial border wall with Mexico. But more word has it that he has also declared a national emergency, giving him the resources to do more than Congress would when it comes to securing the southern border. His press secretary, Sarah Huckabee Sanders, who used to live around here, tweeted a picture of him signing both measures midday Friday.
So what happens now? We are happy and gratified to be able to answer that question. We don’t know. (Twain, M.) But one safe bet is that somebody is going to sue. This is, after all, the United States of America. Everybody lawyers up.
We’ll say it again: A nation needs real borders. Some of the best countries even have walls, and not just walls to keep people from leaving. Even liberal democracies in Europe (and one in particular in the Middle East) have real walls to keep people out. You could look it up. We have.
Can the president declare an emergency at the border?
Sure.
Will it hold up?
Not as sure.
Critics will say there is no crisis at the border. But that’s a subjective argument. The president’s supporters could point to an illegal alien who commits a crime, and have, many times. They create an echo chamber any time an illegal is picked up by the cops for some felony.
But does that rise to the level of “emergency”? The National Emergencies Act of 1976 gives the president authority to say so. According to Business Insider, there are 136 different laws or statutes that guide the nation through this maze of presidential power. Congress has given this a lot of thought. And most of the time, in order to declare an emergency, all the president has to do is sign the paperwork.
And why should this president be any different? Politico reports that nearly 60 national emergencies have been declared since the Ford administration. The longest surviving one deals with the Iranian hostage crisis in 1979. Is there a double standard with this president? Of course. But there would be for any Republican president.
There are different views on the current debatable subject:
A professor of law at Yale, one Bruce Ackerman, recently wrote in a New York Times column that the president absolutely has no leeway to build a wall using the National Emergencies Act, and that any military personnel who help in construction could find themselves breaking the law.
Then there’s another opinion, from John Eastman, a law professor at Chapman University, and, for the record, a former employee at a firm called the United States Justice Department: “From an originalist Constitution point of view, Congress probably shouldn’t have ever delegated this kind of power to the president in the first place, so they may be having second thoughts about having done that,” he said in a recent interview. “But the notion that this president shouldn’t be able to use powers that every other president has used, I think that’s just not a good use of the rule of law.”
One particular lawyer of some repute—United States Senator Lindsey Graham—says he thinks the president can build the wall, and even encouraged him to declare an emergency. For the record, Sen. Graham is also a retired full-bird colonel. He might know what he’s talking about when it comes to military operations, separations of powers and emergency acts.
THE BIGGEST problem that we can see is precedent. If any president can declare an emergency over any of his campaign promises or pet projects, will this become a more frequent occurrence? And what happens the next time a president is in office who might have other than conservative promises to keep? For a country that’s historically suspicious of one man wielding too much power, this is not an unimportant point.
Also, lawyers who know what they’re doing are beginning to use the president’s moves against him. They are already arguing that if he’s waited two years into his presidency to declare an emergency, it can’t be that much of one. Look for that to come up in the briefs.
What might matter more than opinionators, though, are the opinions of judges and justices over the coming weeks.
Does the president have this power? If so, does this president have the power in this situation?
It might depend on what five justices sitting on the United States Supreme Court think. The rest of us might find out soon enough.