For some time now President Trump has been publicly and privately mulling the idea of using a national emergency declaration to give him the power to redirect Pentagon funds to replace the border-wall appropriations Congress has denied him. This idea clearly began as a way for Trump to get out of the trap he set for himself by stumbling into a government shutdown over his border-wall demands. It’s now something that could happen as soon as tonight’s Oval Office address prior to a presidential trip to the U.S.–Mexico border.
Since very few people outside the White House or the nativist fever swamps of the far right think the situation on the southern border represents a “national emergency,” this talk has been largely derided as an absurd overreach by a president whose understanding of the limits of his powers has always been shaky at best, and as a laughably indirect way of obtaining a purely symbolic goal. But it’s beginning to dawn on official Washington that it’s a gambit Trump might well successfully pull off, with possible implications that go far beyond building a concrete or steel wall.
In the 20th century, Congress regularly gave presidents a wide variety of powers deemed necessary to executive functions during a national emergency, real or contrived. Such emergencies were, among other things, the legal basis for America’s undeclared wars in Korea and Vietnam. In order to regularize these incidents and provide for their termination (there were at the time 470 declarations theoretically still in force), Congress passed a National Emergencies Act in 1976. As the Wall Street Journal explains, once a president declares an emergency, all sorts of expanded powers may become available:
The National Emergencies Act doesn’t outline specific powers. Instead, those are laid out in hundreds of specific statutes that give the president extra leeway in a declared emergency. For instance, the International Emergency Economic Powers Act authorizes the president to block financial transactions or freeze assets in response to foreign threats.
In November, for example, Mr. Trump declared that Nicaraguan President Daniel Ortega’s campaign to suppress political opposition constituted such a threat, and he froze the assets of individuals involved in stifling protests against the Ortega regime.
Most national emergencies have been similarly narrow, such as a 2001 declaration prohibiting the importation of rough diamonds from Sierra Leone, where they were used to fund a brutal civil war. That declaration was revoked in 2004 as the war ended.
An exception came three days after the Sept. 11, 2001, terrorist attacks, when President Bush declared a national emergency that has been renewed ever since, most recently by Mr. Trump.
What Trump has in mind are two statutes that allow redirection of military construction funds during a declared national emergency. There are all sorts of questions as to whether building a border wall is actually a military construction project, and additional questions about the sufficiency of any presidential power to declare eminent domain over private property needed for a border wall. But no one doubts that Trump can make the initial declaration whenever he wants. And barring some congressional action to veto or terminate the declaration (which would require a two-thirds votes in both Houses), the only thing restraining him might be the courts, which have traditionally been very lenient in affording the president broad emergency powers. It’s not even clear who, if anyone, would have legal standing to challenge such a declaration with a lawsuit.
But totally aside from its impact on the border-wall dispute and the government shutdown, a Trump national emergency declaration could open the door to all the other emergency powers Congress has given the president over the decades. As Elizabeth Goitein of the Brennan Center for Justice recently pointed out, these powers are extensive and potentially authoritarian:
The moment the president declares a “national emergency” — a decision that is entirely within his discretion — more than 100 special provisions become available to him. While many of these tee up reasonable responses to genuine emergencies, some appear dangerously suited to a leader bent on amassing or retaining power. For instance, the president can, with the flick of his pen, activate laws allowing him to shut down many kinds of electronic communications inside the United States or freeze Americans’ bank accounts.
Previously unutilized (or narrowly utilized) emergency powers could take on a whole new dimension under a president like Trump, who is so willing to exaggerate threats to national security and has no real respect for the rule of law if it inconveniences him. Goitein lays out a nightmare scenario in which a propaganda war with Iran leads to all sorts of domestic repercussions once a national emergency has been declared:
Unfazed by his own brazen hypocrisy, he tweets that Iran is planning a cyber operation to interfere with the 2020 election. His national-security adviser, John Bolton, claims to have seen ironclad (but highly classified) evidence of this planned assault on U.S. democracy. Trump’s inflammatory tweets provoke predictable saber rattling by Iranian leaders; he responds by threatening preemptive military strikes. Some Defense Department officials have misgivings, but others have been waiting for such an opportunity. As Iran’s statements grow more warlike, “Iranophobia” takes hold among the American public.
Proclaiming a threat of war, Trump invokes Section 706 of the Communications Act to assume government control over internet traffic inside the United States, in order to prevent the spread of Iranian disinformation and propaganda. He also declares a national emergency under the [International Emergency Economic Powers Act], authorizing the Treasury Department to freeze the assets of any person or organization suspected of supporting Iran’s activities against the United States. Wielding the authority conferred by these laws, the government shuts down several left-leaning websites and domestic civil-society organizations, based on government determinations (classified, of course) that they are subject to Iranian influence. These include websites and organizations that are focused on getting out the vote.
This may seem far-fetched politically, but legally, an emergency declaration is the sort of thing that opens the door to abuses by a White House in internal crisis that seeks an external crisis to rally public support and clamp down on critics. And that’s the road we could begin taking as a country even if Trump’s resort to an emergency declaration is initially nothing more than an avenue out of a blind alley the president entered when he lost his temper and shut down the government.