Donald Trump has been boxed into an intractable position, more or less imposed by his biggest supporters. Mid-December he nearly signed legislation that would have funded the government, even though it lacked additional border wall funding. He signaled that he would sign legislation the Senate passed by acclamation. But when the House of Representatives was about to follow suit, right-wing personalities like Rush Limbaugh, Sean Hannity ad Ann Coulter blew a fuse. They publicly reminded the president of his central campaign promise to build a wall along the southern border, and argued that backing away from that promise was the equivalent of "caving in" (Breitbart), "retreating" (Drudge Report), and leaving him "dead in the water" (Coulter). Trump succumbed to the criticism, signaled he would not sign a continuing resolution that did not include $5.7 billion for his wall, and allowed the government to shut down. He effectively painted himself into a corner, using his "wall" as a symbolic and persistent centerpiece of ensuing negotiations, and led the government into its longest shutdown ever.
After the 116th Congress convened on January3rd, the Democrat controlled House passed numerous bills designed to re-open the government. None of these included money for Trump's wall. All of them faced opposition from Senate Majority Leader McConnell, who refused to bring them to the Senate floor for a vote. Mr Trump adamantly maintained that any legislation not including this money would be dead on arrival. Democrats dug in their heels, demanding that the government be re-opened before debating the Homeland Security budget and funding for border security. Donald Trump's most recent offer to re-open the government by trading his $5.7 billion wall fund for temporarily shielding 700,000 DACA recipients and 300,000 refugees with temporary protective status fell flat, almost before it was issued. Some Trump supporters criticized the offer as "amnesty," while Democrats rejected it, called it "window dressing," continued to decline to support the wall, and refused to believe that the president would follow through on promises made.
While Democrats seem to sense that they occupy the political high ground and can hold out indefinitely, President Trump appears to be losing the P.R. battle, and is searching for ways not to blink. In other words, Mr. Trump is looking for an off ramp. A potential solution receiving significant traction within the administration is to declare a national emergency, followed by re-opening the government, and funding wall construction with funds derived from other projects. The president is confident that he has the absolute authority to do this, and that it would be a win-win solution for all interested parties. We should ask if he, in fact, can do this, and whether this solution would satisfy all parties involved.
Trump is correct in his assumption that he has the authority to do this. Legal scholars believe that the Constitution gives the president inherent emergency powers by making him Commander-in-Chief of the armed forces, and by giving him wide-ranging executive jurisdiction. Emergency powers are based on the idea that ordinary laws might be insufficient in a true crisis to deal with whatever that situation is. The president may need some temporary flexibility until the emergency passes, or until Congress has time to act and provide the authorities the president needs. At times, past presidents have taken actions that were not authorized, or specifically forbidden. Franklin Roosevelt's internment of U.S. citizens of Japanese descent during WWII and George W. Bush's programs of warrantless wiretapping and torture after the 9/11 terrorist attacks are examples.
In 1976 Congress passed the National Emergencies Act, designed to stop open-ended states of national emergencies and formalize the power of Congress to provide checks and balances on the emergency powers of the president. The Act does not define "national emergency," does not create any criteria or requirements that have to be met, and does not require that the powers invoked relate to the nature of the emergency. Donald Trump laid the groundwork for this eventuality when he characterized the caravan of Central American migrants headed towards the U.S. border to seek asylum a "national emergency," and when he asserted that the situation at the border constituted a "humanitarian crisis." Congress might contest this evaluation, but he has a legal right to his own interpretation.
The Brennan Center for justice at NYU School of Law calculated that once the emergency has been declared, the president would have access to emergency powers contained in 123 statutory provisions. He could, for instance, declare martial law and use the military inside our borders. He could order the military to enforce immigration laws in sanctuary cities or states by claiming conspiracies. He could also determine that Americans inside the U.S. who offer material support to asylum seekers or, for that matter, to undocumented immigrants, pose a threat to national security, and authorize the Treasury Department to take action against them. And he could assume government control over internet traffic, to prevent the spread of disinformation or propaganda. In the mean time, wall construction could be litigated and be hung up for several years, well past the 2020 election.
While declaring a national emergency would allow Mr. Trump to escape the box his supporters placed him in, re-open the government, and to save face whether or not his wall is built, many in the country would be justifiably concerned that this move could become a precursor to the assumption of autocratic powers. Autocrats in Hungary, Turkey, Egypt and other places already employ similar methods. This could be tempting for a president backed into a corner and facing electoral defeat or impeachment. Declaring a national emergency could be a way of holding on to power.
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