President Donald Trump speaks at CPAC 2018.
Photo Credit: Gage Skidmore

I’m going to take a different tact on President Trump’s national emergency than Shane Vander Hart did. Shane is right that President Trump should not have declared a national emergency on the border,  for many of the reasons Shane laid out. I’ll also agree with Shane that there’s serious problems along our nation’s borders that needs addressed.  I’ll further agree that the Democrats haven’t worked in good faith with the President to address border security.

However, Shane defends Republican opposition to overturning President Trump’s national emergency declaration.  He points out National Emergencies have been declared since the Carter Administration and the House measure presented by Speaker Pelosi and the House Democrats was targeting border funding rather than addressing the underlying problem.  “The resolution that passed was a politically motivated attempt to stop border funding, not address the more significant problem which is the expanding use of executive power.”

If President Trump’s use of emergency power were of the same character as the other fifty plus national emergencies that have been declared, congressional Republicans would be right to say, “Why should this emergency be overturned, while all these others remain in effect?”

However, when we do a deep dive into these emergency declarations, we can see a common theme:

Nov. 14, 1979 (still in effect): A national emergency in response to the Iran hostage crisis, which froze Iran’s assets in the United States;

May 1, 1985: Prohibiting Trade and Certain Other Transactions Involving Nicaragua, revoked in 1990;

Oct. 4, 1991: Prohibiting Certain Transactions with Respect to Haiti, revoked in 1994;

March 15, 1995 (still in effect): Prohibiting Certain Transactions with Respect to the Development of Iranian Petroleum Resources, continued in March 2018 and expanded in August 2018;

Sept. 23, 2001 (still in effect): Blocking Property and Prohibiting Transactions with Persons who Commit, Threaten to Commit, or Support Terrorism, continued in September 2017;

July 24, 2011 (still in effect): Blocking Property of Transnational Criminal Organizations, continued in July 2018;

Nearly all of these declarations of national emergencies are related to foreign policy, and most are economic sanctions on foreign individuals and entities. There’s also a declaration of a national emergency that was in place by President Obama regarding the N1H1 flu epidemic.  There’s a good case to be made that almost all of these emergencies are properly functions of the Executive branch as they pertain to the direct enforcement of laws and national security.

President Trump’s national emergency declaration is of an entirely different character.  He is seizing the power to appropriate funds in a way Congress explicitly refused to. No other national emergency has been an end-run on Congress after Congress refused to do what the President wanted.  As such, this is an abuse of the President’s emergency powers that violates  the constitution itself right along with the nation’s balance of power and Congress’s prerogatives. I cannot fathom the logic that President Trump seizing billions in military construction funds for a Border Wall that Congress refused to authorized is the same as Jimmy Carter freezing Iran’s assets in response to that country taking our citizens hostage. 

We also have to recognize the plain meaning of the word “emergency.” If you’ve determined the assets of the Iranian government need to be seized in order to gain leverage to get our hostages back, that’s an emergency requiring immediate action. If you pass a bill through Congress, there’ll be no Iranian money left by the time the bill makes it through the process. If you spend more than two years talking about something with Congress, and you’re not able to convince Republicans to act on it when they controlled the House, it’s not an emergency.

I also take issue with the idea this decision is somehow justified by the fact Democrats didn’t negotiate with President Trump in good faith. If we take a look at the recent past, President Obama wanted gun control legislation and he wanted amnesty for illegal aliens. Republicans in Congress refused to oblige him because they disagreed with the President and because they wished to win their primary elections. 

Right now, Congressional Democrats hold the balance of power in the House of Representatives and they disagree with President Trump. For them, giving an inch to Trump on this issue would be political suicide as they would be primaried. In addition, Congressional Democrats can claim a mandate for not working with this president on this issue. The President ran in the final days of the campaign on the idea that thousands of illegal aliens were storming the border and had to be stopped. Democrats picked up forty seats in the House. Why do the Democrats have to compromise on the border?

The Left and the Right fundamentally disagree on what our country’s most pressing problems are.  For the left, it’s global warming, income inequality, and gun violence. For the right, its border security and terrorism. Who decides what the true crisis is? Under the Constitution, it’s the side that controls the legislative branch. As voters have given Republicans the Senate and Democrats the House, neither sets of “crisis’s”  will be acted upon to anyone’s satisfaction.

Many Democrats do advocate for extreme ideas like abolishing ICE and tearing down existing border barriers, but it’s important to remember that these extreme Democrats were elected by the voters. That the voters made a foolish decision doesn’t constitute justification for a national emergency declaration.

The right tactic for the President is to make his case to the American people and use the power and prestige of his office to persuade the American people to such a degree that Democrats face a greater risk for refusing to negotiate than they do compromising with the President . Alternatively, the President could persuade voters  to throw out the Democrats in the 2020 elections. Unfortunately, this President has very little political capital to do that because of many problems that are of his own making, but that also doesn’t constitute justification for a national emergency declaration.

Many members of Congress  have backed the Article One Act, which would cancel national emergency declarations unless Congress acts to approve them in thirty days. More congressional oversight is always a good thing, and I think the Article One Act would bolster the legitimacy of the mostly reasonable uses of the Emergency Powers that we’ve seen over the past forty years. However,the President has said he will veto this bill, and I think there’s little reason to be optimistic that the Article One Act will gain enough to pass over a Presidential veto.

In many ways, it reminds me of Congressional Republicans voting for big spending increases but insisting they’re fiscal conservatives because they support a Balance Budget Amendment, which they know will never pass Congress. That political game allows Republicans to claim support for fiscal responsibility while practically voting for fiscally reckless budgets, so support for the Article One Act coupled with opposing overturning the President’s emergency resolution allows Republicans to be for theoretically limiting executive power while practically refusing to take action to stop the abuse of that power.

As I’ve already shown, prior to President Trump, many Presidents used the National Emergencies Act, but none had abused it.  Prior to Trump, the Article One Act was necessary more in theory than in practice. Had Congressional Republicans joined with Democrats in rejecting President Trump’s power grab, it would have sent a message to President Trump and future presidents that Congress wouldn’t allow the President to use the National Emergencies Act to legislate from the Oval Office. It would have signaled members of Congress would protect the constitutional prerogatives of the legislative branch of government even if they agreed with the President’s cause.

Instead, Congressional Republicans (with few exceptions) acted as partisans, allowing the President to seize legislative power to avoid an angry Twitter mob coming after them. Expect Democrats to likewise support the global warming, health care, funding for abortion, and gun control emergency declarations that will come down the pike when a Democrat becomes President and decides the opposition party is obstructing solutions to what they consider to be a crisis issue.

Republicans will come to regret not only President Trump’s emergency declaration, but the political games they played to acquiesce to it.

Photo Credit: Gage Skidmore

2 comments
  1. Some thoughts:

    1. Democrats acting it bad faith was not a justification. I did not justify President Trump’s use of the NEA for the border wall. Republicans used that as one reason why they did not support overturning it.

    2. The list of emergencies declared is not descriptive. So it’s not as black and white as you describe.
    Sean Davis provides an interesting analysis of President Trump’s declaration: http://thefederalist.com/2019/02/19/trump-solid-legal-ground-declaring-border-emergency-build-wall/.

    We both have cited how NEA could further be abused, but the fact is based on the text of the numerous federal law and Article II of the Constitution, a border wall fits the bill. It doesn’t mean that is the route he should take, but what he is doing is legal. Whereas using NEA to advance gun control would not be legal.

    3. The NEA is flawed as written as is the case law surrounding it: http://blog.independent.org/2019/03/17/national-emergencies-act-flawed-from-the-beginning/. It is also hopelessly vague. We don’t like it, but it does provide President Trump a legal pathway. Border security is tied to national security just as much as the things you mention. None should have been done with executive authority, however.

    4. Support for the ARTICLE ONE Act is not playing a political game. Passing this bill with 2/3 support would end President Trump’s emergency declaration. This bill is the permanent fix which should be bipartisan. If Democrats can’t get behind it then they are signaling they are ok with executive overreach if it’s their guy who is doing it.

    5. Democrats are playing political games as well; in fact, I would say what they are doing is even worse as President Trump has compromised on border security significantly. Senate Republicans were also elected with a mandate to secure the border as was President Trump.

    6. Why do Democrats have to compromise on the border? For the same reason, Republicans should compromise on immigration reform, for the good of the nation.

    1. Let me address a few of your points

      Support for the ARTICLE ONE Act is not playing a political game. Passing this bill with 2/3 support would end President Trump’s emergency declaration. This bill is the permanent fix which should be bipartisan. If Democrats can’t get behind it then they are signaling they are ok with executive overreach if it’s their guy who is doing it.

      First, it’s my understanding that the Article One Act would pertain to future emergencies. That’s what I see from the Bill and what Senator Grassley said on his website. For the Article One Act to pass the House with a 2/3 majority, if you got every Democrat in the House to vote yes, you would need 53 Republicans to vote yes. There are not 53 House Republicans who will risk the wrath of Trump’s fanbase by voting to override his veto, particularly as we’re getting close to a Presidential election. I’m not even sure you could get 20 Republicans in the Senate.

      That’s if you get all the Democrats on board and I’m dubious that will happen. The fact is that you have Zero Democratic co-sponsors for this bill in the Senate. And plenty of Democrats can be expected to vote no for: 1) Objections to how the bill is crafted and the new process. 2) feelings that it’s giving the Republicans a break on standing up against Trump’s overreach, or 3) that they believe they have a good chance of winning the next election and don’t want to diminish the power of the next Democratic President.

      Right now, you’ve got a bill that might get the Majority of Senate Republicans on board or might not. If there are 188 votes for this in the House (let alone the 288 votes needed to override Trump’s veto) I would be extremely surprised.

      Given that reality, I don’t think the idea, “We’ll allow Trump’s Border Emergency to go through but pass the Article One Act with 2/3 support” is a serious idea.

      Democrats are playing political games as well;

      No doubt about this. I think the far left position that the Democrats are taking is irresponsible for a Party that’s eventually going to lead America. You can call for abolishing ICE and tearing down border fences as an opposition party. But eventually, in 2020 or 2024, they’re going to have to run the government, and either you’ll disappoint your base or you will govern in a way that won’t get problems solved and will strengthen the worst elements of the alt-right and anti-immigrant forces, and just further divide the country.

      Why do Democrats have to compromise on the border? For the same reason, Republicans should compromise on immigration reform, for the good of the nation.

      If Washington, DC worked on the “do what’s good for America” ethic, you’d be right, but it operates on the “Do what’s best for your own re-election” ethic and for most Democrats that means avoiding a challenge from the far left.

      Trump makes this harder. Trump has no political capital or real mandate. Americans oppose “the wall” by a good margin while also actually being strongly supportive of barriers. Not only is he toxically unpopular with the Democratic base, he’s also an unreliable negotiating partner because on other issues he’s taken a stance and then abandoned the position under fire or at some random time, he’ll throw a monkey wrench into the works. Even his veto threat of the Continuing Resolution for wall funding last year was a last minute thing out of nowhere. Any Democrats who try to work with the Administration on this issue is likely to be left to hang out to dry by Trump at some point.

      Given the combination of the Democrats’ self-interest, Trump’s lack of political capital and moral authority, and the likelihood that anyone who tries to work with him will end up suffering for it, I think it’s understandable why the Democrats won’t work with the President. In an ideal world, Democrats would have statesmen willing to work with Trump and tick off their base, perhaps ending their career, on the off-chance that something good would come out of it.

      We definitely need to do better with the type of people elected to Congress, but the Democrats who have been elected have every reason to not work with this President.

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