WASHINGTON—President Donald Trump’s national emergency declaration has reignited a debate about presidential powers that is likely to go all the way up to the nation’s highest court.
The president’s declaration will allow him to access an additional $3.6 billion for funding increased security at the U.S. southern border. He said Friday that he plans to reroute money from other parts of the federal budget, too, and combine it with $1.4 billion appropriated by Congress for around $8 billion total to spend on border barriers—not necessarily a concrete wall.
By the end of the day Monday, 16 states had sued to stop him, something he anticipated in his speech Friday announcing the national emergency. “We’ll end up in the Supreme Court, and hopefully we’ll get a fair shake and we’ll win,” he said in the White House Rose Garden.
The National Emergencies Act of 1979 gives presidents the ability to respond quickly to situations they deem a crisis. Since then, executives have declared emergencies at least 58 times on everything from trade to terrorist attacks. President Barack Obama declared 12 national emergencies during his eight years in office, most of them to respond to crises in other countries and protect U.S. interests abroad. Obama also left a legacy of broad executive actions such as the Deferred Action for Childhood Arrivals program, which protects people brought to the country illegally as children from deportation. New York Times reporters Binyamin Appelbaum and Michael D. Shear, scrutinizing Obama’s legacy in 2016, wrote that he “pursued executive power without apology and in ways that will shape the presidency for decades to come.”
Trump’s executive actions have caused some commentators, even a few conservatives, to compare him to Obama. Critics are questioning whether “a president can basically treat Congress as a lap dog and say, well, if you don’t do what I want, I’ve got the power to do it without you,” said Henry Olsen, a senior fellow at the Ethics and Public Policy Center.
Adam Carrington, an assistant professor of Politics at Hillsdale College, told me Congress has slowly given away its powers by passing increasingly vague legislation and leaving it to agencies and the president to interpret the details. The result is that agencies and the president are “basically writing regulations that are equivalent to making legislation,” he said, adding, “The problem is what’s becoming the norm, not that the current president is rampaging on the norms. If there’s a problem, it’s that he’s too normal because of what the new normal is.”
Carrington said he would not be surprised if the Supreme Court deferred to Trump on the question of whether the situation at the border constitutes an emergency: “They might say, this isn’t our job to decide.” But the justices could still strike down Trump’s allocation of emergency funds if they decided he did not stick to a tight interpretation of the law to justify his actions.
House Democrats, led by Rep. Joaquin Castro of Texas, plan to introduce a resolution of disapproval as early as Friday to terminate the emergency declaration. The National Emergencies Act allows Congress to undo the declaration with a joint resolution, but only if it receives the president’s signature or if Congress overrides his veto. House Speaker Nancy Pelosi, D-Calif., urged members of both parties to support the resolution. It is expected to sail through the House and will automatically receive a vote in the Senate within 18 days.
Only four Republicans in the Senate would need to join their colleagues across the aisle for the resolution to pass. GOP Sen. Susan Collins of Maine pledged her support Wednesday as long as it was a “clean” resolution nullifying the president’s emergency declaration and nothing else.
Carrington said that the only time lawmakers effectively challenge overreaches of executive power “is when a president’s own party starts to push back against his powers.”
Republicans have so far been divided over the president’s move. While Senate Majority Leader Mitch McConnell of Kentucky and nine others have expressed support, about 16 have expressed concerns, according to The Washington Post. As of Thursday, four Republicans in addition to Collins have opposed the declaration: Sens. Lamar Alexander of Tennessee, Rand Paul of Kentucky, Mike Lee of Utah, and Thom Tillis of North Carolina.
Meanwhile, an NPR/PBS Newshour/Marist poll found that 61 percent of voters disapprove of the president’s emergency declaration. Around 85 percent of Republicans approved of the move, while 84 percent of Democrats and 63 percent of independents disapproved.
The issue at stake, according to Carrington, “has nothing to do with whether a wall is a bad idea or a good idea. It’s a question of how do you get there and what does the Constitution allow. The Constitution says the end and the means matter. And the right means often lead to better ends.”