Trump's National Emergency is Harmful to the Rule of Law... and Good Optics.

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Trump's use of a national emergency to fund the border wall could run into legal issues, not to mention its damaging implications for the rule of law


At the time of writing, the news has just broken that President Donald Trump will use the emergency powers of the presidency to attempt to fund a concrete or steel barrier at the southern border. After a tumultuous and economically harmful government shutdown last month over this proposed border, Trump had failed to achieve his demand for border wall funding. It seemed plausible that he would acquiesce to a new bipartisan compromise, that included no wall funding, cooked up by a congressional committee to deal with the issue of border security. However, It appears that, even though he will likely sign the negotiated deal, he will still attempt to use his emergency powers. But if the president decides that he must use the emergency powers vested in him by the Constitution to achieve political ends, what’s so wrong with that?

 This article by reporter Charlie Savage of The New York Times lays out in exquisite detail the situation, the legal problems, and potential democratic damage such a declaration could engender. One of the interesting aspects of the analysis is its proposal that the declaration could help Trump save face with his political supporters and allow Democrats to do so with their political champions. Moreover, Savage proposes that the emergency declaration will immediately hit a snag of litigation, with opponents arguing that the action violates the constitution. He suggests that Trump’s defense will raise the fundamental question of when a president can use those powers. That question is a tricky one. 

 For example, a potential sticking point is who decides what counts as an emergency and what does not? While Trump may claim that there is a crisis of migration at the southern border with Mexico, the reality is that illegal immigration is at its lowest point in decades. Still, Trump’s legal team might argue that if Trump simply believes there is a crisis at the border, then he has the right to declare a national emergency, regardless of the facts. 

 But what road does this lead the United States down? Could a Democratic president flout the rule of law by simply declaring that there is a wealth inequality crisis that requires an inordinate tax on the rich? Or perhaps they will declare a healthcare crisis that demands free, universal healthcare. Regardless of whether one believes that universal health care or higher taxes on the rich is a reasonable and wanted action is beside the point. The real question is, what does it imply that a president can bypass Congress on issues delegated to the legislative branch by the Constitution?

Savage’s article lays out the issue clearly, gives a concise overview of the situation, and provides clarity into the political optics of such a declaration for Trump’s supporters and Democrats. It is a highly recommended insight.

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