Americas: United States
President Trump declares national emergency on southern border of the United States sparking constitutional battle
On Feb. 15, 2019, President Donald Trump declared a national emergency on the southern border of the United States, sparking a constitutional battle that could go on for years. At issue was the president's desire to secure more funding for the construction of a wall on the southern border of the United States, which during his 2016 presidential campaign he said would be paid for by Mexico.
With a deadline looming to prevent another shutdown of the government, a bipartisan bill was reached between Republicans and Democrats in Congress that would include funding for border security. The $333 billion spending bill was intended to fund government operations through September 2019. Included in the funding provisions was $1.375 billion that was to be used for 55 miles of “pedestrian fencing” in the Rio Grande Valley in Texas. This amount was actually less than was contained in a bill proposed in late 2018, which Trump rejected. Nevertheless, with concerns over plummetting approval ratings due to the longest shutdown in United States history, Trump signed onto the new bill.
Now, however, with an eye on securing further money to build his wall and make good on a campaign promise, Trump was looking to other options. To that end, he was attemptng to redirect taxpayer money from other accounts to pay for the construction of more than 230 miles of barriers along the border. At issue was a White House plan to use $600 million from the Treasury Department’s forfeiture funds account. As well, another $2.5 billion would be redirected from a Pentagon program for countering drug activities. Another $3.6 billion would be moved from military construction accounts. The use of that military construction funding that resides as the heart of the national emergency declaration because the president is constitutionally prohibited from moving funds from one account to another without congressional approval.
In an address from the Rose Garden at the White House, Trump declared, “We’re talking about an invasion of our country with drugs, with human traffickers, with all types of criminals and gangs." Indeed, he invoked the word "invasion" seven times in his speech to characterize the situation at the border. It should be noted that journalists' accounts of the scene in key border areas have not depicted quite the invasion landscape envisioned by the president.
Trump appeared to undercut his argument that the border of the country was in a crisis requiring emergency measures as he also said, “I didn’t need to do this, but I’d rather do it much faster.” In this way, he was making clear that the need for action at the border was not necessarily urgent, but that he was simply using executive powers to be expedient in carrying out a campaign promise.
Trump's emergency declaration was guaranteed to spark legal challenges that could take years before landing before the Supreme Court where he was hoping a conservative majority would rule in his favor. Legally, though, constitutional scholars have pointed to the clear separation of powers and the fact that Congress, and not the president, possess the power of the so-called purse. Trump, though, was likely looking to precedents in which the Supreme Court has given presidends wide latitude when it comes to matters of national security. Yet to be determined was the matter of whether or not the situation at the border, bereft of the hoardes of undocumented persons invading the sovereingty of the United States, could actually be clasified as a bona fide national emergency.
Some Republicans were supportive of the president; however, others warned that the gratuitous use of emergency powers would set an unhealthy standard that other presidents -- a Democratic one in the future -- could exploit. Senator Thom Tillis of North Carolina set forth such a scenario as he said, “President Bernie Sanders declaring a national emergency to implement the radical Green New Deal” or a “President Elizabeth Warren declaring a national emergency to shut down banks and take over the nation’s financial institutions.”
House Speaker Nancy Pelosi presaged exactly that end when she warned that a future Democratic president could declare a national emergency over the "epidemic of gun violence" plaguing the country. She also excoriated the president, reminding him of the separation of powers as she asserted, “The president’s actions clearly violate the Congress’s exclusive power of the purse, which our Founders enshrined in the Constitution."
Senate Minority Leader Charles Schumer warned of consequences for Trump to come via a statement that read: “The Congress will defend our constitutional authorities in the Congress, in the Courts, and in the public, using every remedy available.”
Pelosi and Schumer both called on their Republican counterparts to recognize that a president could not unilaterally make an emergency delcaration to circumvent the constitutionally-enshrined power of a co-equal branch of government. The said: “We call upon our Republican colleagues to join us to defend the Constitution.”
Democrats in the HOuse of Representatives have vowed to stop this move by Trump, promising legal action. To this end, House Judiciary Committee Chairman Jerrold Nadler made clear that White House counsel Pat Cipollone would be called to Capitol Hill to explain the White House’s reasoning behind the emergency declaration.
The first move in Congress, though, would likely be a privileged resolution of disapproval that would force Republican lawmakers to take a stand by either voting for Trump’s wall or opposing his emergency measure. Should the resolution actually reach the president's desk, he would undoubtedly veto it. Nevertheless, the effort was afoot to move in this direction.
Democrats at the state level would also be challenging the president. California Attorney General Xavier Becerra said he would work cooperatively with other states to take legal action against the White House.
As well, several civil rights organizations, including the American Civil Liberties Union (ACLU) announced that it would use all legal means at its disposal to challenge Trump's emergency declaration and ultimately block Trump’s wall. As a first move, the
ACLU was planning a lawsuit of its own in which it would argue that Trump could not unilaterally redirect taxpayer money during an “emergency” unless it is expressly for military construction projects carried out for the armed forces.
At the state level, the advocacy group Public Citizen filed a suit in the United States District Court in Washington seeking to block Trump’s emergency declaration on behalf of Texas landowners as well as an environmental group.
In his Rose Garden speech Trump appeared to understand the legal challenges to come. He said, “We will have a national emergency, and we will then be sued, and they will sue us in the 9th Circuit, even though it shouldn’t be there, and we will possibly get a bad ruling and then we’ll get another bad ruling and then we’ll end up in the Supreme Court, and hopefully we will get a fair shake."
Denise Youngblood Coleman, PhD.
President and Editor in Chief
-- Feb. 17, 2019