I’ve spent considerable time looking into Trump’s “national emergency.” As a U.S. citizen, I am now genuinely appalled and frightened. I’m also quite disappointed that the media has largely missed the big picture here. I guess that’s why I have a blog.
As everyone is now aware, Trump has decided to declare a national emergency to build his wall – ignoring the will of the American majority and the compromise immigration measure passed by both the Senate and the House. There have since been no shortage of pundits weighing in from all sides with respect to the legality, advisability, and impact of such a declaration. Again, they’ve mostly buried the lede.
I personally decided that I needed to search online for the appropriate laws so that I could read the original texts of the various national emergency statutes being cited. Frankly, I’m now rather sorry that I did. Not only could you easily fit a blue whale down this particular rabbit hole, I sincerely had no idea that anything approaching this was actually a law – or, more accurately, a massive matrix of laws.
Allow me to briefly summarize how this works.
The 1976 National Emergencies Act (NEA) gives any President the power to declare a national emergency while providing no guidelines as to what actually constitutes a national emergency. It’s an emergency simply because a President says it is. The authors of this brilliant piece of legislation did include a “check-and-balance” that allows Congress to override such a declaration by a simple majority vote in both the House and Senate. However, they forgot that the override legislation itself was subject to a Presidential veto – which would then require a 2/3 vote in both chambers to override. Seriously, they forgot. Idiots. The NEA also sunsets any national emergency declaration but, since it can just be declared again, the sunset is functionally useless.
Thus, in practice, a President could declare that a shortage of golf balls is an open-ended national emergency and it would take a 2/3 vote in both the House and the Senate to reverse it. Dandy.
Once a President makes a functionally unilateral declaration of a national emergency, a plethora of completely separate laws can then be easily invoked that give the President a massive amount of unchecked power. While the NEA does requires that the President list the various statutes granting the powers being invoked, it doesn’t require any defense of that invocation. The President can just say “That one and that one.”
If you want a cold chill running up your spine, here’s a helpful list from the Brennan Center for Justice that summarizes 123 such powers – and that list appears to be incomplete. The laws themselves can be very tough reads and tend to be quite vague – because vague is obviously what you want when you’re defining emergency executive powers.
Trump’s national emergency declaration is the 59th since 1976. Previous declarations have included George W. Bush’s declaration in the wake of 9/11 and Barack Obama’s declaration during the H1N1 pandemic. The vast majority of declarations have been used to simply impose sanctions on foreign entities. Trump’s declaration, however, is the very first time the act has been used to override the explicit wishes of Congress.
The problem is that all of this seems to be completely legal. Congress has abdicated many of their powers to any President that simply wants them. It’s just that easy. While previous Presidents of both parties have shown self-restraint in the use of national emergency declarations, the current office holder has no such inhibitions. I’m only surprised that Trump and his staff haven’t yet grabbed even more power. In the current political environment, I see few presidential acts that would incur the necessary 2/3 vote in both chambers of Congress to stop him.
Here’s just a few of the many powers that a President can claim after declaring a national emergency:
- Redirect military construction funds
- Suspend any part of the Clean Air Act
- Prohibit or limit the export of crude oil or any agricultural good
- Waive confidentiality requirements for public health services
- Suspend prohibitions on chemical weapons and toxic waste disposal
- Allow testing of biological and chemical agents on unwitting human subjects
- Do pretty much anything to the Capitol grounds and structures
- Take control of any airport that used to be on federally-owned land (including Austin’s airport)
- Take possession of any privately owned vessel in U.S. waters
- Assume broad authority to regulate all commercial transactions
- Prohibit all economic transactions with any person, including a U.S. citizen
- Order any unit or member of the Ready Reserve to active duty for up to two years
- Keep people in military service without their consent
- Appoint anyone to the rank of major general or rear admiral
- Prosecute anyone that the government has “reason to believe” may obstruct defense activities
- Deploy federal troops within the U.S. to put down an “insurrection”, as defined by the President
- Grant and revoke broadcast station licenses
- Assume control over all U.S. Internet traffic
At least a few of the above should evoke fear from everyone of any political persuasion.
The emergency construction authority cited by Trump to fund his wall allows him to redirect any budgeted military construction funds that aren’t already under contract. While the new usage vaguely “requires the use of the armed forces,” that’s likely an easy bar to reach given that Trump has already deployed thousands of troops to our southern border.
There’s about $21 billion in unobligated military construction funds that Trump could tap. Most of that money was allocated just last fall for DoD installations in 38 states and at least 14 overseas locations. There’s a ton of projects, including numerous barracks, shipyards, runways, control towers, garages, etc., but here’s just few of the big ticket items:
- Hospital construction in Landstuhl, Germany
- Vehicle maintenance shop at Camp Arifjan, Kuwait
- On-base schools in Japan and Germany
- Family housing stateside and overseas
- On-base school at Fort Campbell, Kentucky
- F-35 hangars at Luke Air Force Base, Arizona and Camp Pendleton, California
- Drydock repairs at Pearl Harbor, Hawaii
- Special ops training facility in North Carolina
- Training centers in Georgia and Florida
Note that all of the above have gone through a rigorous appropriations process and have been deemed by the DoD to be essential to force readiness. For example, Landstuhl is the nearest treatment center for wounded soldiers coming from Iraq and Afghanistan. And the Senate just last week heard horror stories from military families about the sorry state of housing in some areas. If Trump steals hard-won construction money to please his political base, it’s not like the original military needs will simply go away. The DoD will have to go back to Congress to replace the money in the next budget cycle. In the meantime, the military will suffer.
My presumption is that Team Trump will cherry-pick projects in solidly Democratic states and will try to avoid projects in states with Republican Senators and in districts with Republican Representatives. Thus, the Kentucky school is likely safe; the F-35 hanger in California is doubtful. There’s simply no one to stop Trump from using his declaration for political benefit. He can and he will.
A few Democrats seem to think there’s a legal battle to be won to overturn the declaration. Some are hanging their hopes on a 1952 Supreme Court ruling that overrode a Truman emergency declaration. However, that decision was reached prior to the passage of the NEA. Yes, the fact that Trump took Air Force One for a golfing trip to Mar-A-Lago immediately after his emergency declaration tells us that this was a purely political emergency. And, yes, Trump even admitted that “I didn’t need to do this.” None of that is relevant. Congress passed these laws and it’s not the court’s job to protect Congress from itself.
A few Republicans have expressed trepidation, but most of them don’t want to challenge Trump. There’s certainly plenty of Republican votes to block any effort to overturn the declaration. These Republicans are essentially saying that the Legislative branch is impotent if the Executive branch decides to flex its muscles. So much for the Constitutional separation of powers.
Republicans are making a couple of huge political mistakes as well.
A vote to re-purpose military funds for the wall will be tough to defend in the next election cycle. DoD MILCON budgets are a joke if they can be used as a presidential slush fund at the stroke of a pen. Force readiness isn’t a political football. And screw with military families at your own risk.
More politically important, though, an eventual Democratic successor to Trump will have a solid precedent upon which to declare gun violence or climate change to be a national emergency. While those wouldn’t be any more reasonable than Trump’s declaration, they’d be just as legal.
Yes. We most certainly do have a national emergency. It’s just not the one that Trump declared.