President vs. Precedent

 /  March 4, 2019, 3:47 p.m.

U.S.-Mexico Border

On February 15, President Donald Trump declared a national emergency to access funding for a southern border wall. His previous attempt to seek $5.7 billion for the wall from Congress was unsuccessful; therefore, he turned to the national emergency. The 1976 National Emergencies Act allows the president to allocate funds without Congressional approval.Trump’s move was immediately met with opposition. Many argue, as Speaker of the House Nancy Pelosi has, that the national emergency declaration "violates Congress's exclusive power of the purse.”

National emergencies are relatively common; former president Barack Obama declared thirteen, and former presidents Bill Clinton and George Bush each declared fourteen. Where this emergency differs from those of Trump’s predecessors, however, is that it was declared in direct response to Congress denying the funds that the national emergency accesses. Never before has a president used a national emergency to bypass a bipartisan spending bill. In the past, national emergencies have been declared when they enable the government to take action sooner than would possible by passing a measure through Congress. The general assumption has typically been that Congress would have approved it, given the opportunity. Here, however, Republicans in Congress have to choose between maintaining the favor of the president and acting against an unprecedented breach of congressional powers.

Moreover, this national emergency is different from those in the past in that the president himself has overtly said he does not feel that the situation at the border itself necessitates such a declaration. As he told Peter Alexander of NBC, “I didn’t need to do this, but I’d rather do it much faster.” Most national emergencies have not been rhetorically presented by presidents as loopholes to bypass checks and balances, but rather as genuine emergencies facing the American people. Trump’s transparency in his motives is a significant departure from precedent.

Trump’s declaration of a national emergency represents not only a paradigm shift in the current political atmosphere, but also a potentially durable realignment of checks and balances between future executives and legislatures.

In terms of  immediate consequences, the declaration exerts a renewed pressure on Republican lawmakers. The National Emergencies Act gives Congress the ability to terminate the president’s declaration of an emergency. Trump’s action stands in direct opposition to bipartisan legislation that already passed, denying Trump funding for the border wall. As a result, Senate Majority Leader Mitch McConnell is faced with a dilemma. He rarely parts ways with the president, yet in this case, to acquiesce is to sacrifice power. To support Trump’s declaration is to hand the executive branch the ability to get around Congress’s power to dictate national spending.

Congress’ ability to decide how the government spends money is a fundamental check on the power of the executive branch; fourth graders nationwide are taught that Congress makes the laws, and that the president enforces them. Trump’s declaration blurs that line. The break from precedent leaves room for claims of executive overreach.

As Trump himself predicted, a lawsuit has been filed in the liberal Ninth Circuit Court of Appeals by a coalition of sixteen states. Fifteen of these states have Democratic governors, and most have majority Democratic legislatures. Trump’s calculus is that the opposition will come from Democratic states that he already does not expect to win in reelection.

In his official declaration, Trump denied that the national emergency is related to his reelection campaign, saying: "I don't have to do it for the election. I've already done a lot of wall, for the election—2020." Despite this, it was broadly understood that Trump “lost” the shutdown by failing to convince Congress to give him funding. The shutdown brought Trump’s lowest approval rating in a full year. An approval rating of 40 percent for a president seeking reelection is a cause for concern. The timing of the national emergency coincides with slippage in support among Trump’s base. Trump’s claim that the national emergency is unrelated to his reelection campaign has been met with broad skepticism. His only other option to secure funding for his wall was another government shutdown, an incredibly unpopular option among voters and in Congress, across party lines. Trump is betting that the popularity he will gain by building his wall will compensate for the departure from precedent.

Indeed, 85 percent of Republicans approve of his declaration. To win reelection, however, Trump needs more than the 24 percent of Americans that are registered Republicans. With 63 percent of independents opposed to the move, the declaration is a potential concern for Trump’s 2020 reelection. Overall, 61 percent of Americans disapprove of the declaration, compared to the 34 percent that are registered Democrats. Opposition has been far from limited to blue states.

A recent article in the National Review—a magazine founded by William Buckley Jr. to bolster popular support of conservative policy—came out against the declaration. Lambasting the president’s move as “grotesque” and “weak”, the article condemns the president not for the policy itself, but rather for the perceived abuse of power. The central argument is Trump’s weakness; ironically, Trump’s own favored criticism, ever popular among his base, has been turned against him.

The article then discusses the declaration within the context of constitutional law. Indeed, the declaration represents an interpretation of the Constitution that—if successful—will alter the power of the executive branch. Trump’s national emergency would mean that future presidents could redirect money as they wish to see policies fulfilled as they see fit. Pelosi has said that the precedent set by this national emergency would allow a Democratic president to declare a national emergency over Democratic policies, including gun control. Her argument refers to the implications  of the lasting precedent for the very voters Trump is trying to secure for his reelection. While those who want the border wall support this declaration, they are unlikely to support the national emergencies that a Democratic president would be able to declare as a result of the shift in precedent.

Ultimately, Trump’s declaration of a national emergency has provoked opposition not just from Democrats, but also from Independents and Republicans he needs to win over for reelection.

The image featured in this article is in the public domain and is not subject to copyright law.

Adele Malle


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