Like many critics of President Trump, we expected that he would someday abuse the power of the office to such a degree that it would trigger a confrontation with Congress or the courts. And now he’s doing it, in pursuit of a wall along the southern border that Mexico isn’t financing.
On Friday, Trump declared a national emergency over a nonexistent “national security crisis” at the border, then invoked that emergency to shift billions of dollars from previously approved military construction projects to his wall. The move contravenes weeks of negotiations by lawmakers and an explicit decision, backed by large majorities in both chambers, to reject Trump’s request for $5.7 billion in wall funding and instead provide less than $1.4 billion for steel fencing — the same amount as last year.
Congress gave the president broad authority in the 1976 National Emergencies Act to declare a state of emergency, and lawmakers have passed dozens of other laws laying out the specific powers the president can use when an emergency has been declared. But Trump is stretching that authority to the breaking point by using it not to address something unexpected or an actual national security crisis, but to reverse the will of Congress and erase a political defeat.
That’s unconscionable. Trump’s imperious use of emergency powers will soon be challenged in both Congress and the courts, and rightly so.
Trump won election in part by playing to the fears of some Americans about immigrants, particularly those in the country illegally. Ignoring the sharp decline in the number of arrests at the border and the estimated number of people in the country illegally, and eliding the fact that in recent years more new undocumented residents are people who overstay visas rather than sneaking across the border, Trump has continued to portray the Mexican border as a sieve, and illegal immigration as an urgent threat to the economy and public safety. The wall, in Trump’s telling, is a cure-all that could drastically reduce drug smuggling, human trafficking and crime in general.
“We want to stop drugs from coming into our country. We want to stop criminals, we want to stop gangs,” he said Friday.
But the notion of a violent horde threatening to invade from the south is xenophobic fiction, as unrealistic as the idea that a wall can magically stop the flow of drugs into the United States. And though there are manifest problems with U.S. immigration laws and policies, they do not translate into a threat to the security of our nation.
That’s not to say there are no urgent problems at the border. The accumulation of migrants in Mexico fleeing violence and poverty in Central America is a large-scale human tragedy that’s been exacerbated by this administration’s inability to handle the surge in asylum applications from families and unaccompanied minors. On Thursday, human rights groups sued the administration over its cruel and legally shaky policy of forcing asylum-seekers to wait in Mexico while their applications proceed.
Over weeks of negotiations stretching back into 2018, the Trump administration and its Republican allies in Congress grappled with congressional Democrats over how to address the growth in asylum arrivals and other border concerns. The spending bill that Trump is due to sign into law raises spending on border security to $22.54 billion — more than the budgets for disaster relief, the federal courts or the Environmental Protection Agency, to cite just a few examples.
The measure is a compromise that reflects bipartisan support for improved border security, as well as the two parties’ different priorities. In addition to providing money for fencing, it increases in the number of detention beds for deportable immigrants, expands immigration courts, adds hundreds of Border Patrol agents, supplies more money for drones and other border-surveillance technology, ramps up drug interdiction efforts at ports of entry, overhauls how Immigration and Customs Enforcement manages the cases under its purview, and addresses a number of complaints from Democrats about the treatment of detainees.
Under the Constitution, it’s up to Congress to decide how federal dollars are spent. It’s telling that Trump couldn’t persuade lawmakers to give him more money for his wall, even by shutting much of the federal government down for a record 35 days. He simply doesn’t have the votes for the project, which isn’t surprising, given that polls show most Americans don’t support it.
Instead of taking his lumps and trying to make a better case for funding the wall next year, however, Trump is trying to circumvent Congress through a spurious emergency declaration. His supporters note how previous presidents have used executive orders to take steps Congress did not take; for example, President Truman ordered the armed forces to desegregate in 1948 after Congress failed to do so, and President Obama created a program allowing “Dreamers” to seek temporary legal status after a comprehensive immigration reform bill stalled (a move that Trump has derided as unlawful). But there’s a world of difference between using executive orders to accomplish things Congress could not, and declaring an emergency to overturn a decision Congress made. Administration officials have noted that Presidents George H.W. Bush and George W. Bush both used emergency declarations to shift military construction funds, but that was in response to the Iraqi invasion of Kuwait and the terrorist attacks on Sept. 11, 2001 — not caravans of migrants.
Trump’s declaration will soon be challenged on two fronts. One or more federal judges will be asked to halt the shift of funds, possibly by landowners in Texas whose property could be seized for the wall. And the Democrats who control the House will advance a resolution ending the state of emergency — a resolution that, once it passes the House, must come up for a vote in the GOP-controlled Senate.
That resolution will pass if enough Senate Republicans discover the necessary spine. In fact, half a dozen have already said they oppose an emergency declaration because of the horrible precedent it would set. (As several members of Congress have noted, the next Democratic president could follow Trump’s footsteps to declare an emergency over climate change or gun violence.) But Trump could veto any such resolution, forcing congressional Republicans to make the awkward choice between supporting their out-of-control president or defending the legislative branch and the Constitution.