Published by The Lawfare Institute
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On Feb. 15, President Trump took a number of legal steps, including declaring a national emergency and invoking emergency authorities, in connection with his efforts to construct a wall on the southern border. There are important senses in which Trump’s actions are a big deal, and important senses in which they are not nearly as big a deal as many contend.
I. Not a Big Deal
Considering just the substance of what Trump has done, these are large exaggerations. Everything Trump proposes to do purports to be grounded in congressional statutes and much of what he aims to do does not rely on emergency power. Trump is not relying solely on Article II executive power, and he is not invoking executive power to disregard a congressional statute. Moreover, the statutes in question expressly give Trump authority in the areas in which he claims them.
There will be questions—some of them hard, and without obvious answers—about whether Trump’s legal team has interpreted these congressional authorizations, and the conditions on their use, accurately. But abstracting away for a moment from the deeply divisive context in which Trump has asserted these authorities, the types of statutory claims he is making based on delegated power are nothingburgers from the perspective of executive branch practice, especially in the foreign relations context. The executive branch every day relies on vague or broad or dim delegations of authority, and courts usually uphold these actions. And as Trump himself stated many times, courts will ultimately sort out his claimed statutory authority in the wall context as well.
Nor is Trump’s claim of emergency power outlandish—at least by the standards of past presidential practice. Many charge that Trump is declaring an emergency when there is no emergency. But this begs all the relevant questions. The relevant statute on which Trump relies does not define the term “emergency.” Presidents have always—really, always—had discretion to decide if there’s an emergency. And presidents have often declared emergencies under circumstances short of necessity, to address a problem that does not rise to an “emergency” as defined in common parlance to mean “a serious, unexpected, and often dangerous situation requiring immediate action.”
President Clinton, for example, declared an emergency to address the 1996 Cuban military shootdown of two Brothers to the Rescue aircraft. That event plausibly satisfied the ordinary language understanding of “emergency,” though one could debate the point. But Presidents Bush, Obama and Trump have modified and reaffirmed the national emergency first declared twenty-three years ago. The “emergency” is still in place. But it has morphed into a navigation policy with the aim—like the one Trump invokes for the wall—of preventing (among other things) “a mass migration from Cuba [that] would endanger our security by posing a disturbance or threatened disturbance of the international relations of the United States.” (President Obama appears to have added this justification for the emergency in his 2016 renewal.) The “threat” posed today (or in 2016) by a mass migration from Cuba is not a “real” emergency and is almost certainly further from one than the “threat” posed today by mass migration from Mexico.
A similar analysis could be done on (among others) Obama’s declared national emergencies due to the situation in Burundi in 2015 and piratical activity near Somalia, and on Bush’s declared national emergencies due to the sale of Iraqi Petroleum in 2003 or to political oppression in Zimbabwe in 2003. One can debate whether these were obviously emergencies concerning U.S. interests in the ordinary language sense at the time they were declared. But none is an emergency in this or any other sense today, though presidents have modified and renewed all of these declarations in the intervening years. Certainly none of these declarations today concern an “unusual and extraordinary threat” to the foreign policy of the United States, as all of them claim. (In 2014, Obama noted in his modification and renewal of the 2003 Iraq emergency order that much of the original threat had dissipated, and he narrowed the order but nonetheless kept the emergency in place.) As the improbable but credible team of Harold Koh and John Yoo correctly put it almost three decades ago, presidents “have declared national emergencies with little regard to whether a real emergency has actually existed.” This statement was true at the time and has been borne out by subsequent events.
But, one might say, as many have: None of these emergency orders involved the imaginative reshuffling of funds beyond their intended aim. I do not know if that is true. But I will accept that it is for purposes of argument and simply say that Congress has without discipline delegated so many large pots of money around the executive branch for so many vague or broadly worded purposes that repurposing or imaginative use of appropriated funds is an everyday executive branch occurrence. There are limits, but there is much wiggle room as well. And again, Trump’s appropriations tricks will be thoroughly scrutinized in court.
But, one might continue, as many have: Trump is using this aggressive gambit to make an end run around a Congress that declined to give the president what he wanted. To which I would say: That has been going on for a long time, and increasingly so in our era of gridlocked Congress. Scholars and commentators during the Obama era justified highly imaginative uses of executive power precisely because Congress was deadlocked. Remember the Iran Deal, the Paris Agreement, the Libya intervention, and the expansions of Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)? All were novel uses of claimed statutory authority or Executive power justified in part by actual or perceived congressional intransigence. Something similar happened in the George W. Bush administration.
These are not “whataboutism” points. I am not saying Trump’s emergency proclamation is just like past ones—it is not. I have not yet done a serious enough legal analysis to determine whether what Trump has done is lawful or unlawful. Nor have I done adequate analysis to determine whether Trump’s emergency proclamation combines precedents in ways that are more threatening to the constitutional order than the precedents themselves, though I tentatively do not believe it does. Nor am I saying Trump’s action will or should be upheld by courts
I simply wish to put Trump’s actions in context by emphasizing these points: (1) Congress has delegated enormous power to the president and given him enormous effective discretion about how to spend funds; (2) presidents have for many, many decades viewed these delegations expansively, especially in contexts touching on foreign relations, and in those contexts courts almost always agree; (3) the president’s statutory emergency powers are not materially different from other delegated powers that presidents have construed broadly and that courts have almost always upheld; (4) finding imaginative ways to act to achieve important public policies on which a president was elected, in the face of a recalcitrant Congress, is what modern presidents do, often to celebratory applause.
II. And Yet, a Big Deal
Despite the legal ordinariness of what Trump has done here, the context in which he acts, and the way he acts, makes the situation seem, and in fact be, much worse.
Trump is acting in perhaps the most divisive contexts in American politics, one filled with severe anxiety or worse on all sides, and one exacerbated by Trump’s scorched-earth approach and by the longest-ever government shutdown as a result of this very issue. Any unilateral presidential action in this context is bound to be controversial.
Making a bad situation worse, Trump, as is his wont, is purposefully creating a large drama that includes flouting conventional norms associated with presidential power. His press conference announcing the declaration of emergency was a doozy that contained numerous statements that smashed norms of presidential etiquette. But perhaps none more so than this one:
I could do the wall over a longer period of time. I didn’t need to do this. But I’d rather do it much faster. And I don’t have to do it for the election. I’ve already done a lot of wall for the election. 2020. And the only reason we’re up here talking about this is because of the election—because they want to try to win an election, which it looks like they’re not going to be able to do.
Here Trump did two things in connection with the exercise of emergency powers that presidents never do.
First, in stating that he “didn’t need to do this,” Trump acknowledged what so much of the run-up to his proclamation makes clear: there is no necessity in his action, and thus no “emergency” in the ordinary language sense of the term. As noted above, this is typically true of emergency declarations. But presidents don’t admit it, much less celebrate it. They tend to make emergency declarations in ways that do not highlight that the entire modern law of emergency power rests on the fiction that emergency powers can be invoked in the absence of what we normally think of as an emergency.
Second, in clumsily denying that the emergency declaration is about politics and the 2020 election, Trump confirmed what many people think: It is about politics and the 2020 election. That acknowledgment heightens and for many will confirm suspicions about mixed motives, pretext, and the like.
Trump is not by a mile the first president to invoke executive power aggressively for political purposes. But he might be the first plausibly to be seen to exercise emergency powers openly for political purposes. In this regard, as in many regards, Trump is undisciplined in his lack of hypocrisy. As I explained a few years ago:
A corollary to Trump’s shamelessness is that he often doesn’t seek to hide or even spin his norm-breaking. Put another way, he is far less hypocritical than past presidents—and that is a bad thing. Hypocrisy is an underappreciated political virtue. It can palliate self-interested and politically divisive government action through mollifying rhetoric and a call to shared values. Trump is bad at it because he can’t “recognize the difference between what one professes in public and what one does in private, much less the utility of exploiting that difference,” Henry Farrell and Martha Finnemore have noted in Foreign Affairs. He is incapable of keeping his crass thoughts to himself, or of cloaking his speech in other-regarding principle.
This is a counterintuitive idea. Many people see Trump as hypocritical since he often says one thing and does another (including things that he criticized his predecessor for). But he is profoundly not hypocritical in this sense: As in his border wall announcement, he is often guileless in asserting power, and doesn't try to hide the tension between his political aims and his asserted constitutional justifications. This is one of Trump’s most remarkable and persistent norm violations. “The clearest evidence of the stability of our values over time is the unchanging character of the lies … statesmen tell,” Michael Walzer famously noted. “They lie in order to justify themselves, and so they describe for us the lineaments of justice. Wherever we find hypocrisy we find moral justice.” Walzer might have added that when we see in our statesmen an absence of hypocrisy in a contested context where principle normally matters, an absence of moral justice creeps in.
Trump’s lack of hypocrisy in the current context is harmful for at least two reasons.
First, it will hurt him in court. His acknowledgement that his emergency is not “real,” and his openly political motivations, will make it harder for judges—and especially the Supreme Court justices whom he said during the press conference he hopes would rule his way—to uphold his order. This is so in part for doctrinal reasons: The president’s integrity and truthfulness, and the possibility that he is acting pretextually based on an illicit motive, will be front and center in this litigation. And it is so in part for what might be called political or atmospheric reasons. Courts don’t like to be seen as pawns asked to indulge obvious fictions in the exercise of executive power in controversial contexts. But that is the situation the courts are now in.
These elements were, of course, present in the travel ban litigation that Trump in the end won. Trump in a blunt, ungainly way asked the Supreme Court to once again bail out his poorly rolled-out and controversial Executive proclamation, and he did so in a way that stripped away the fictions that normally accompany emergency powers. Acknowledging that there is much legal analysis yet to be done, the justices will have a harder time upholding this proclamation due to Trump’s performance. If the Supreme Court on top of its travel ban ruling follows a traditional legal analysis and also affirms Trump’s emergency action concerning the wall, it risks setting a super-bad precedent for openly opportunistic and pretextual presidential emergency action going forward. But to reach another result the Court might have to put a serious dent in presidential authority that will adversely affect future presidents who legitimately need this authority. Trump has put the Court in a terrible position.
The second reason Trump’s actions are harmful is that the broader legitimacy of the presidency that wields such vast powers over so many lives depends on presidents who present and exercise those powers with at least a modicum of decorum, modesty and attention to rule-of-law values. As I have argued in two books, one of the great mistakes of the George W. Bush presidency was the tendency to act on the basis of an open desire to expand presidential powers—something most of the main players, including President Bush, later regretted. Trump’s performances make the performances of the Article II chest-thumpers in the Bush administration seem restrained by comparison. To be clear, the Bush team invoked Article II powers in substance much more aggressively than Trump. But their public rhetoric, while damaging to the presidency, was not, I think, as damaging as the impact of Trump’s openly politically self-regarding rhetoric. This is a hard thing to prove or even know for sure. But it is not necessary to decide whether the Bush or Trump rhetorical strategy was worse to know that Trump’s corrodes the presidency.
Trump’s utter lack of hypocrisy in the aggressive exercise of presidential power is a clarifying moment for the nation. His inability to withhold his private motivations, combined with his willingness to push the presidential envelope in controversial ways, combined with his unsteady grasp of his office and worrisome judgment in wielding his massive powers, has shined the brightest of lights on how much power Congress has given away, and how much extraordinary power and discretion presidents have amassed. After Trump, and due to him, there will be a serious reckoning with this constitutional arrangement like no time since the 1970s, and possibly ever in American history. Whether the Congress and the nation can do anything about it is another matter. I have my doubts.