Normally, any other time, you’d say it’s a no-brainer that the president wins. But with this particular president, no bets are safe in assuming the courts will completely defer to him.
That’s what Bobby Chesney, a law professor at the University of Texas, told Politico when asked about the chances of Trump’s presumed national emergency declaration holding up in the face of what is expected to be a veritable deluge of legal challenges.
To be clear, Trump does have a lot of leeway here. Congress probably never imagined that someone like Trump would be President and so didn’t carefully consider whether it was a good idea to let the executive determine when and where there’s an “emergency” (or, as Trump calls it, an “emergy“).
After reminding everyone that “fact-checkers have already ripped apart the misleading statistics Trump has presented, and official government data show that illegal border crossings remain near their lowest point in the past four decades”, Elizabeth Goitein, co-director of the liberty and national security program at the Brennan Center for Justice at New York University School of Law, conceded on Friday that Trump does have broad discretion. To wit:
Given these circumstances, it might seem that the courts would put a quick stop to the president’s antics. But the National Emergencies Act, passed by Congress in 1976, will not make things easy for anyone preparing litigation to stop Trump. The law gives the president complete discretion to declare a national emergency; there is no definition of emergency and no criteria that must be met. As a result, most judges would tend to defer to the president’s determination that an emergency does exist, however much of a stretch it might seem.
That said, there is zero chance that Trump is going to “get away with this”, where that means running roughshod over Congress on the way to looting federal money earmarked for other purposes and quickly starting construction on a border wall. At “best” (and that depends on how you define “best”), this will be a long, painful process for the president and at “worst” (from the perspective of the White House) it will be rendered null and void.
Summing things up on Thursday was Dianne Feinstein. Here’s what she had to say:
Raiding pots of federal money is unconstitutional and irresponsible. The Constitution says Congress decides how to spend money, not the president. For the president to divert this money to unauthorized wall spending is unconstitutional and will be immediately challenged in court.
Congress can also try to terminate Trump’s “emergy” by taking up a joint resolution and Texas Democrat Joaquin Castro has made it clear he’s prepared to introduce the measure. “This is a fake emergency,” Castro said, adding that “in the past, presidents have called national emergencies over national security issues or disasters.”
“I will fully support the enactment of a joint resolution to terminate the president’s emergency declaration, in accordance with the process described in the National Emergencies Act, and intend to pursue all other available legal options,” Jerry Nadler proclaimed on Thursday.
Assuming such a measure passes the House, the Senate would be compelled to bring it up for a vote. Democrats would need to secure just a handful of Republican defections to push it through. “I don’t believe he would have the support in the Senate — if they’re required to vote,” Castro said.
The problem, though, is that the termination measure would then have to be signed by Trump himself, barring a two-thirds majority that would override him.
“As with any other bill that comes to the president’s desk, Trump can veto a joint congressional resolution terminating the national emergency, as long as it has not passed with supermajorities in both the House and the Senate,” the New York Times notes, adding that while “Congress did not originally intend to give the president this recourse… the Supreme Court struck down what it calls legislative vetoes in 1983 [and] because it takes two-thirds of both chambers to override a veto, the ruling made it substantially harder for Congress to stop a president’s declaration.”
Still, the multifarious nature of those who are likely to sue will help underscore just how untenable Trump’s declaration really is. As Politico notes in the above-linked piece, the administration will probably face legal challenges from all of the below:
- state and local governments,
- property owners along the border,
- would-be recipients of funds that would be diverted by Trump’s move and,
- the House of Representatives
All of those groups will doubtlessly point to the overwhelming evidence against Trump’s claim that the US is in fact facing a national emergency. “With sufficient evidence that Trump is acting in bad faith — that he is abusing the discretion Congress granted him for the purpose of subverting constitutional constraints, including the prohibition on spending funds that Congress has not appropriated — a judge could still find that the emergency declaration is invalid,” Goitein (quoted above) writes. That said, the Supreme Court seems inclined to side with Trump on issues where national security is ostensibly at stake (or at least in Trump’s mind).
But there’s another issue. Republicans are likely to be extremely wary of letting this proceed unimpeded. If Trump is allowed to move ahead with this without Congress doing everything they can to stop it, it would open the door to a future where a Democratic president could declare a national emergency on grounds that are far more evidence-based than Trump’s border claims. For instance, what would stop a President Alexandria Ocasio-Cortez from declaring a national emergency tied to, for instance, climate change?
You laugh now, but if Donald Trump can become president, surely anyone can, and in the scenario posited above, a hypothetical President Ocasio-Cortez would have voluminous scientific evidence to support the contention that climate change represents a very real threat. In any legal proceedings, she would be backed up by every scientist on the face of the planet.
Again, you may laugh, but I can assure you the GOP isn’t. Republicans are already thinking about that and about all the other national “emergencies” a Democratic president might concoct if Trump makes it clear that the National Emergencies Act can be abused on a whim.
In any case, even though there’s no national emergency right now, there will be by the end of the day and paradoxically, it will come in the form of an unjustified invocation of national emergency powers.