February 22, 2019

Trump's National Emergency and the Plausibility Gap

Rob Weiner Partner, Arnold & Porter
Sam Callahan Associate, Arnold & Porter
Kaitlin Konkel Associate, Arnold & Porter
Andrew Tutt Associate, Arnold & Porter


President Trump’s recent declaration of a counterfeit “national emergency” to build a wall on the U.S.-Mexico border subverts the separation of powers that has sustained our democracy for 230 years.

The President has brazenly defied the limits Congress imposed on his emergency powers. None of the statutes he invokes authorizes his actions. Under any comprehensible rendering of the English language, there is no “emergency.” As commonly understood, an “emergency” must be sudden, urgent, and compelling, not slow, longstanding, and gratuitous. Far from being sudden and urgent, the border wall advocated by Trump--which was necessary, he has suggested, because Mexican immigrants are rapists and murderers--was a feature of the 2016 campaign. As to a compelling need to act now, the President, in announcing his actions, conceded that he “did not need to” invoke the emergency statutes. He just wanted the wall sooner. Except perhaps in the Orwellian argot of this Administration, there is no such thing as an non-emergent emergency or an exigent need for unneeded action. Nor could the President credibly claim that the National Emergencies Act of 1974 extends the term “emergency” beyond its ordinary, everyday meaning. That Act, adopted in the aftermath of Watergate, sought to curb, not unleash, presidential emergency powers.

Beyond the damage wrought by the Administration’s broad, nonstop assault on the rule of law--which, standing alone, is alarming--the threat to constitutional order from this latest defiance of statutory restraints extends well beyond the present case. The National Emergencies Act is but one of many statutes empowering the President to act unilaterally if, and only if, he makes specified factual determinations (in particular, that there is an emergency). When Congress delegates such authority, it generally assumes, based on long historical practice, that the President will not debase his fact-finding obligation. Otherwise, Congress could never entrust the President with discretion. To allow the President’s current corruption of the Emergencies Act would discourage Congress from delegating important functions that the Executive Branch--in responsible hands--is better suited to address.

Some have suggested that the dispute regarding the President’s actions merely involves the interpretation of obscure, infrequently invoked statutes. But the lack of even a fig leaf of statutory authority to justify the President’s actions establishes that they are a bare-knuckled, if bumbling, power grab in derogation of clear constitutional limits. The President’s actions do not merely raise constitutional questions. They create a constitutional crisis.

The President did not act on a clean slate. He fabricated an invasion of immigrants from Central America who never invaded. He made the border wall a centerpiece of the 2018 Congressional elections, and lost the House. He threatened vetoes, tweeted accusations against opponents, and went on the road to dispense more phony claims of an immigration crisis. And when Congress nonetheless denied the funding he had requested for the border wall, he shut down the government for 39 days. After all these exertions, the President was forced to relent and sign legislation appropriating a fraction of what he sought. Only then did he declare an emergency to obtain what he plainly could not get through the legislative process.

In short, Congress specifically, and repeatedly, denied the President the funding he now purports to tap. Therefore, under Justice Jackson’s framework from The Steel Seizure Case, the President’s power to act unilaterally is “at its lowest ebb.” In fact, the President’s actions here are far more troubling than President Truman’s unsuccessful assertion of authority in The Steel Seizure Case. First, the asserted emergency in that case was more than plausible. President Truman invoked “emergency powers” in the midst of the Korean War and the Cold War, justifying seizure of the mills as necessary to provide equipment to the military. Second, President Trump is not just acting without constitutional authority; he is usurping perhaps Congress’s most organic, even existential, defense against Executive overreach--the power of the purse. By diverting money to fund a project that Congress has rejected, the President is displacing Congress’s Appropriations Power. The Framers wisely vested that power in Congress and Congress alone. To allow the President to override it merely by mouthing the empty words “national emergency,” to defer to his patently, even admittedly, implausible claim, would mock the checks and balances that protect American democracy.

If read to confer unreviewable authority to declare a national emergency and nullify contrary congressional decisions, the emergency statutes would raise grave constitutional issues. Therefore, at an absolute minimum, the principle of constitutional avoidance demands that courts interpret the emergency statutes to forbid the President’s actions here.