The boy who cried “Wolf!” when there wasn’t one should have been stopped the first time, and taught a lesson. A president who declares “national emergency!” when there isn’t one should be stopped the first time too, but it’s not clear our laws will enable that to happen, or that enough people appreciate the danger of not teaching him a lesson.
“I have an absolute right to cry ‘wolf,”” Donald Trump said this week. Actually, what he said was “I have the absolute right to declare a national emergency,” but the first is close enough. Where others see desperate women and children on the border seeking asylum, Trump sees wolves—rapists and murderers, gang members, and criminals.
Many people in Washington are apparently relieved that by using an emergency declaration to secure the $5.7 billion in funds he wants for his wall, the president could end the impasse with Congress and allow the government to reopen. Some expect the courts will overturn the declaration, so there’s nothing to worry about: The shutdown ends, Trump can say to Rush Limbaugh and his base he did everything he could to build the wall, and the Constitution stands. According to Dara Lind at Vox, some of Trump’s own advisers who support the emergency declaration think the courts will overturn it.
Others expect that the emergency declaration will get bogged down in litigation. The New York Times quotes former solicitor general Walter E. Dellinger III as saying the issue will likely take at least a year to resolve in court:
“We’re going to be in 2020 before this gets resolved. … If they are just planning where to build slats, judges are unlikely to decide that requires expedition in the Supreme Court. I think they would recognize the wisdom of going slow.”
Still others assure us that a declaration of national emergency is no big deal because it’s in line with statutory authority given by Congress and therefore not a step toward dictatorship. “Everyone Calm Down About that Declaration of National Emergency” writes the managing editor of Lawfare, Quinta Jurecic.
I am not reassured, and I hope you aren’t either.
There is no guarantee the courts will overturn an emergency declaration. The Supreme Court has been extremely deferential to the executive branch whenever the president invokes national security. In a perfectly timed article in The Atlantic, Elizabeth Goitein notes, “The moment the president declares a ‘national emergency’—a decision that is entirely within his discretion—more than 100 special provisions become available to him.” If the courts do decide the declaration is entirely within Trump’s discretion—that judges, in effect, cannot rule on whether or not there is a wolf—Trump will have a carte blanche for much more dangerous uses of emergency powers in the future.
Will Trump’s claim of emergency powers get bogged down in the courts? The emergency-powers issue has to be distinguished from clashes over eminent domain and property rights, which many observers reasonably expect could take time to resolve. But for the courts to slow-walk a ruling on the declaration of emergency would be tantamount to a decision that no genuine emergency exists. After all, the very idea of an emergency is that immediate action is imperative. The White House could reasonably argue for an expedited decision.
And what about the argument that because Congress has given the president authority to declare national emergencies, this is not a case of the president making an unlimited claim of emergency powers (under the vesting clause of Article II) or acting entirely outside the Constitution? Trump is just trying to shuffle around money already appropriated for military construction projects, so no biggie, right?
But this is a clear-cut case where Congress has said no to the request. Conservatives as well as liberals ought to be outraged by a president who declares a national emergency on false grounds so as to spend money for a purpose Congress has refused to approve. If presidents can resolve an impasse with legislators unilaterally with an emergency declaration, Congress loses its control of the purse strings—a foundation of the separation of powers. Some conservatives have cautioned against the president’s sidestepping Congress, but only in a mild way, as setting a bad precedent.
A false declaration of national emergency ought to be treated as a serious—indeed, an impeachable—offense, lest it become the basis for wholesale executive aggrandizement of the kind we are seeing in other countries. Under the Constitution, the president is required to "take care that the laws be faithfully executed." Unjustified resort to emergency power is a violation of that duty.
A false claim of an emergency ought to be treated as a grave offense for another reason. In the Aesop’s fable about the boy who cried wolf, there comes a time when there is a real wolf, and the villagers don’t respond to the boy’s cries. Trump’s phony border crisis and perpetual lying raise the same danger. If Trump goes on national television again to tell us about a threat to the country, who would believe him except his own base? Who wouldn’t worry that he was just using a pretext for some ulterior motive? Trust in the word of a national leader is a vital requirement for national security, and Americans have no basis for that trust today.