Complicity in Trump’s Bogus Emergency

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After Congress denied him most of the funding he requested for a border wall last week, President Trump declared a national emergency, thereby invoking power to shift funds that were originally appropriated for other purposes. To state the obvious, no emergency exists. Illegal border crossings are down, and while there has been a recent increase in the number of Central Americans seeking refuge from violence in their home countries, those migrants seek to enter the US at recognized border crossings; a wall would do nothing to address that problem.

Meanwhile, even if a border wall were a reasonable policy proposal, there is no justification for unilateral presidential action. A president sometimes must act without first consulting Congress, because time is of the essence. For example, Congress was not in session when Confederate forces fired on Fort Sumter in April 1861, but President Lincoln, while promptly calling for a special session, quite properly did not wait for Congress to reconvene before commencing his defense of the Union. Needless to say, the southern border is not under armed attack, and President Trump has had plenty of time to obtain congressional funding for a wall. A president not getting everything he wants from Congress does not constitute an emergency in any ordinary sense of the word.

Accordingly, various persons and institutions have filed or plan to file lawsuits seeking to block Trump’s ability to divert funds from their appropriated purposes, to exercise the power of eminent domain over private and tribal lands, and otherwise act on the basis of his bogus emergency. These lawsuits will likely delay work on the border wall, but whether they ultimately succeed remains to be seen.

The fact that there is even a slim chance that Trump will have his way is remarkable. The US Constitution grants the president no emergency spending powers. Indeed, it specifically forbids money from being “drawn from the treasury, but in consequence of appropriations made by law.” How, then, is it possible that Trump has any wiggle room at all to circumvent Congress?

The short answer is that while Trump himself bears the largest share of responsibility for this latest shameful undermining of constitutional democracy, he could not have accomplished it without assistance from Congress, the courts, and the People.

Emergency Power Run Amok

Prior to the adoption of the National Emergencies Act (NEA) in 1976, presidents had declared emergencies even without congressional authorization. The NEA’s purpose was to terminate prior declared emergencies and to prescribe limits on the duration of subsequent declared emergencies. Yet ironically, that Act and others have had largely the opposite effect: delegating to the president a somewhat open-ended power.

The original version of the NEA allowed Congress to terminate a presidentially declared national emergency by a concurrent resolution—that is, by a bill passed by both houses of Congress, without the need for a presidential signature. However, in the 1983 case of INS v. Chadha, the Supreme Court held that legislative vetoes violate Article I, Section 7 of the Constitution. The Chadha case invalidated a unicameral legislative veto, but subsequent decisions applied its rule to invalidate a bicameral veto as well.

Accordingly, in recognition of the unconstitutionality of the concurrent-resolution procedure for terminating a national emergency, in 1985 Congress amended the NEA to require a joint resolution of Congress to terminate a presidentially declared emergency. But a joint resolution is really just another word for a law, and Congress would have had the power to end a presidential declaration of a national emergency even without the termination provision. Accordingly, in order to end a national emergency over the president’s objection, 2/3 of each house of Congress must vote to override his inevitable veto.

In the current climate, that is likely to be impossible. By contrast, a concurrent resolution just might be possible. A majority of the Democratic-controlled House would surely terminate Trump’s emergency, and perhaps thirteen Republican country-first Senators could be found to garner the 60 votes needed to overcome a filibuster. But there is no way to reach the 2/3 vote needed in each chamber, given how many Republican members of each chamber fear a primary challenge from a more Trump-loyal rival. Thus, although there was no guarantee that even the pre-Chadha procedure would have sufficed to override Trump’s emergency declaration, the Court’s legislative veto decision dooms any such effort now.

That is not to say that the Supreme Court alone bears responsibility for the likely persistence of Trump’s bogus emergency declaration. Congress could have—and should have—responded to the Chadha decision with a much more substantial limitation. It should have stated in the NEA and other statutes delegating emergency power to the president that any declared emergency would automatically expire after 30 days (or some other reasonably short period) if not ratified by Congress. Some wiggle room could be provided in the event of an emergency so severe as to prevent Congress from convening, but any such carefully drafted provision would be inapplicable to an emergency declaration like Trump’s.

Litigation Hurdles

Congress was not that far-sighted. Will the courts save us? Perhaps, but two sorts of hurdles—both of the Supreme Court’s making—could slow or stop litigators’ efforts to enlist the courts in blocking Trump’s wall.

First are doctrines—most prominently standing and ripeness—that limit who may sue in federal court and when. Although conservative justices champion these limits in the name of separation of powers and judicial restraint, ironically, they do not rely on any clear constitutional text. The Constitution’s Article III empowers federal courts to hear “cases” and “controversies,” and from this thin reed the Court’s conservatives have constructed a procedural obstacle course for plaintiffs seeking to vindicate even concededly valid legal claims.

Consider the first lawsuit filed—on behalf of three Texas landowners and a Texas environmental organization whose members will be harmed by Trump’s border wall. The landowners claim that the administration plans to use its emergency declaration to authorize seizing their land. Although the federal government has the power of eminent domain, the 1952 Steel Seizure Case—which arose during a genuine national crisis—makes clear that the president cannot exercise such a power on his own. Even so, one can imagine a court telling the landowner plaintiffs that their claims lack ripeness—that they cannot have their claims adjudicated until the government actually attempts to oust them.

To be sure, the Texas landowner plaintiffs have an unusually strong argument for ripeness. For example, plaintiff Nayda Alvarez received letters from US Customs and Border Protection in September 2018 and January 2019 respectively seeking access to her land to conduct a survey and informing her that the government anticipates filing papers to exercise eminent domain. If the courts faithfully apply the law of ripeness, her case ought to proceed without delay.

However, the Supreme Court’s ripeness and standing precedents are notoriously easy to manipulate by judges and justices who are determined to reach a preconceived conclusion. Even if the lower courts allow a suit against the administration to proceed, it is easy to imagine the Supreme Court using procedural doctrines to toss it.

Consider the 2011 ruling in Clapper v. Amnesty International USA. The federal appeals court said that rights organizations had legal standing to sue to block an unlawful program of government wiretapping, but the Supreme Court, in an opinion by Justice Alito, reversed that ruling, because the allegation of illegal eavesdropping was “too speculative.” If that sounds like a Catch-22, it was: one reason the plaintiffs could not definitively prove that their particular conversations were intercepted was that the eavesdropping program was covert. Nonetheless, Justice Alito callously dismissed the claim as alleging a mere “self-inflicted” harm.

It is thus entirely possible that the lower courts will faithfully apply existing case law to vindicate the challenges to Trump’s emergency, only to see the Supreme Court reverse on technical grounds. For example, the Court might find that the Texas landowners have standing to object to the taking of their land but not to challenge the emergency declaration itself, because a White House fact sheet asserts that the government will not use money it reallocates via the emergency declaration until after it exhausts other sources of funding.

Even if the high Court allows one or more cases to proceed past the procedural hurdles, it could eventually approve Trump’s emergency declaration by invoking doctrines of deference—as it did last June when it upheld (the third version of) Trump’s Travel Ban. There, five justices blinded themselves to Trump’s repeated statements of anti-Muslim animus to treat the ban as though it had emanated from a normal administration. Likewise here, one could imagine five justices blinding themselves to Trump’s anti-Latino animus and the absence of any genuine emergency at the southern border, in light of the fact that normal administrations have also stretched the notion of emergency powers beyond the ordinary meaning of the word.

Popular Responsibility

Last week more than 2/3 of the members of each house of Congress voted in favor of legislation to fund the government despite the fact that it included less than $1.4 billion for what the measure calls “primary pedestrian fencing” at the southern border. Although Senate majority leader McConnell announced President Trump’s intention to declare a national emergency at the same time that he announced the president’s willingness to sign the budget measure, wall funding does not appear to have been essential to Republican Senators’ agreement; after all, the Senate unanimously passed a similar measure in December.

Nonetheless, as noted above, there is no likelihood of new legislation clawing back the president’s emergency powers, because more than a third of the members of Congress fear a primary challenge from a Trump loyalist. While there are many ways in which our system of government fails to represent the People, in this respect it succeeds: President Trump’s approval rating has consistently moved in a tight band around 40 percent—just enough to block action requiring support from 2/3 of the public.

Thus, we must add one more culprit to the list of actors who are enabling the current occupant of the oval office to, in the cautionary words of Alexander Hamilton, “commence [as a] demagogue, and end[ as a] tyrant[].” In addition to the childish egotist in the White House, an obsequious leadership of the onetime Party of Lincoln, and a supine Supreme Court, we can thank roughly two in five of our fellow citizens for the fact that the US continues its slouch towards autocracy.

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Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University and co-author, most recently, of Beating Hearts: Abortion and Animal Rights. He blogs at dorfonlaw.org.