“I didn’t need to do this,” President Trump insisted at a Rose Garden appearance on Friday, as he declared a national emergency aimed at shaking loose a few billion dollars in financing for his beloved border wall.
The president’s assertion was both ludicrous and self-defeating. If a declaration was unnecessary and the wall on track (the wall is “very very on its way,” the president said earlier in the week), how could he claim to be addressing an emergency? As Mr. Trump explained it, “But I’d rather do it much faster.” A presidential desire for speed does not constitute a crisis — no matter how eager a president is to camouflage his failures.
In reality, the wall is not a done deal, and Mr. Trump has spent the past few months — the past two years, really — failing to convince either Congress or Mexico to pay for it. This week’s bipartisan spending bill, which contained no more wall money than the one over which Mr. Trump shut down the government in December, was a particularly humiliating defeat.
Desperate to save face, the president and his team cooked up a nonemergency emergency with the aim of seizing funds already appropriated for other purposes. Currently, the plan is to pull $2.5 billion from the military’s drug interdiction program, $3.6 billion from its construction budget and $600 million from the Treasury Department’s drug forfeiture fund. The White House plans to “backfill” the money it is taking from the Pentagon in future budgets.
And so, in a breathtaking display of executive disregard for the separation of powers, the White House is thumbing its nose at Congress, the Constitution and the will of the American people, the majority of whom oppose a border wall.
Even as he spun this as an act of strong leadership, Mr. Trump acknowledged that his declaration resolves nothing and creates a host of legal, legislative and political troubles. He predicted that the move would prompt swift legal pushback, which it did. Less than four hours after the announcement, a government watchdog group filed suit, demanding that the Department of Justice hand over “documents concerning the legal authority of the president to invoke emergency powers.” Soon after, the State of California announced its intention to sue. On Thursday, even before the announcement, Protect Democracy and the Niskanen Center announced plans to file on behalf of El Paso County and the Border Network for Human Rights. So the floodgates are open.
Mr. Trump predicted that he would lose the first couple of court rounds, particularly in California federal courts, but would ultimately be vindicated by the Supreme Court. Critics of the move expect things to turn out differently. Whatever the outcome, the legal issues are complex, and the case could wind up bogged down indefinitely, meaning not much wall for now.
Moving from the legal to the political realm, Republican lawmakerswill very likely to find themselves in a pickle. Congress has the power to override a national emergency declaration by passing a joint resolution. To prevent opponents from stalling the bill indefinitely, once one chamber passes the resolution, the other must hold a vote on it within 18 calendar days. House Democrats have already announced their intention to hold such a vote, and are expected to prevail. This will then put Senate Republicans in the position of having to vote on whether to support a presidential grab of Congress’s power.
To survive a presidential veto, such a measure would need to pass with two thirds of the votes in both chambers — which seems unlikely. But the vote itself will prove awkward for Republicans, forcing them to go on record as to whether they have officially abandoned their constitutional duties.
Then there’s the violence this will do the budget process — not exactly a smooth-running machine as is. But if members of Congress start worrying that money appropriated for one purpose will be clawed back by the White House and handed over for a different one, look for spending battles to get bloodier still. Some of the money to be raided for the wall will come from military construction projects in Republican states like Kentucky and North Carolina.
Which brings us to the question of precedent. In defending his declaration, Mr. Trump and his team keep asserting that emergency declarations are not unusual. The president called them “a great thing” that other presidents have done “many, many times.”
Since 1976, such declarations have been used 59 times. But most have been uncontroversial and involved matters of foreign policy. Declaring an emergency simply because Congress refused to fund the president’s pet project is seen even by members of his own party as setting a dangerous precedent. As Senator Susan Collins, the Maine Republican, warned, “For the president to use it to repurpose billions of dollars that Congress has appropriated for other purposes and that he has previously signed into law, strikes me as undermining the appropriations process, the vote of Congress and being of dubious constitutionality.”
Speaker Nancy Pelosi raised broader issues on Friday. “This issue transcends partisan politics and goes to the core of the Founders’ conception for America, which commands Congress to limit an overreaching executive,” she said in a statement with Chuck Schumer, the Senate Democratic leader. “The president’s emergency declaration, if unchecked, would fundamentally alter the balance of powers, inconsistent with our Founders’ vision.” Finish here: Opinion | Phony Wall, Phony Emergency