On Wednesday, the day after a national address in which he laid forth his case for building a border wall and refusing to sign a budget without one, President Trump suggested openly that he might in fact simply declare a national emergency with regard to the border and order the Defense Department to redirect funds toward the building of a border wall.
Trump stated, “I have the absolute right to do national emergency if I want…my threshold will be if I can’t make a deal with people that are unreasonable.” Trump would presumably invoke 10 USC §2808 or 10 USC §284 in order to declare a national emergency. Under 10 USC §2808, the president may “In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act,” undertake “military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces.” It would be a serious stretch to suggest that military necessity dictates the overruling of Congressional powers in this case – and it sets the precedent that the executive would presumably try to declare a national emergency to redirect already-allocated defense funding to pet projects on a routine basis. Imagine Elizabeth Warren declaring a “green national emergency” and then authorizing the military to shutter coal plants, as Erick Erickson has suggested.
As David French points out at National Review, President Truman attempted to do exactly that with regard to steel works in the United States during the Korean War, and was rejected by the Supreme Court, which declared, “The order cannot properly be sustained as an exercise of the President’s military power as Commander in Chief of the Armed Forces.”
Trump could also theoretically use 10 USC §284, which allows the Secretary of Defense to “provide support for counterdrug activities” if such support is requested by the official responsible for such counterdrug activities. Such support would be restricted to “maintenance, repair, or upgrading of equipment.” Building hundreds of miles of new wall would probably not fall under this definition.
Now, here’s the real issue: arrogation of new authority to the executive branch violates the checks and balances of the Constitution; President Obama’s arrogant attempts to govern by pen and phone violated the Constitution, and Trump’s attempts to do the same would, too. To suggest, as Trump has, that if he doesn’t get his way, he’ll simply do what Obama did is to legitimize Obama’s activity.
Furthermore, a court will undoubtedly stop Trump. And that’s presumably what he’s looking for: he could try his emergency powers while simultaneously signing an end to the government shutdown. While a court works to strike down that emergency declaration, Trump can fulminate against the judiciary, the Democrats, and weak-kneed Republicans. He gets a win from his base; the government reopens; the Democrats can claim that they never caved. That’s the most cynical answer to Trump’s government shutdown predicament.
It’s also not going to get a wall built. Trump should stick to his guns if he cares about his campaign promise. And Republicans should stick right alongside him. Earmarks alone cost the federal taxpayers $14.7 billion in 2018. Each Congressperson should be forced to explain why building a bridge named after them in Podunk ought to outweigh the national security interests of the United States. The feds earmarked $65 million for restoration of Pacific coastal salmon; $500 million was earmarked for the troubled F-35 JSF aircraft and another $544 million for the similarly troubled Littoral Combat Ship; $55 million for entrepreneurial development programs within the Small Business Administration. Trump should be asking Congresspeople what their spending priorities are.
If Trump instead takes the easy but ineffective way out, he’ll be doing the wrong thing – and demonstrating that Republicans are more interested in optics than in actually building the wall. That wouldn’t be a surprise, given their obvious indifference toward defunding Planned Parenthood, which continued to be given government grants during a wholly Republican Congress.