Can the Courts Call B.S. on Trump’s Potential “National Emergency”?

The Framers did not want a police state whereby a leader could use the military to implement civilian policy.
by Kim Wehle
January 11, 2019
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President Trump is again poised to thrust an issue of massive political importance—one that should be resolved within the democratically-elected branches of the federal government—before nine unelected judges.

Unable to strong-arm Democrats into a $5.7 billion appropriation of his choosing, the president has threatened to leapfrog over Congress by declaring a national emergency to build the “wall” he promised his voter base.

For the umpteenth time during his presidency, the question arises: Can he legally do that?

For the umpteenth time, the answer is: It’s the wrong question. The right question is, if Trump declares a national emergency over the alleged “crisis” at the border, will there be any adverse consequences? Without enforcement, the Constitution and related laws are not worth the parchment they were written on.

The Constitution provides three ways for Trump to get his comeuppance for possibly abusing presidential emergency powers: at the ballot booth (which doesn’t apply until 2020), through Congress (which could hand Trump an appropriations bill and then override an expected veto—not a viable option so long as Republicans refuse to hold him accountable for anything), or in the federal courts.

How would the issue get before a federal court? (This might be worth taping on the proverbial fridge, as it applies to other suits against the Trump administration).

First, Trump would most likely declare his national emergency through an executive order, which is a quasi-legislative directive issued by the president. Executive orders are historically moored and thus treated as constitutional. But an executive order can’t violate other laws—including the Constitution itself.

Second, someone with what’s called “standing” would have to file a lawsuit challenging the executive order as illegal. Standing is a legal requirement that the party suing—the plaintiff—be injured in some special way by the offensive action. The idea is that we don’t want judges making normative policy—that’s for legislatures—so we have to be sure that only the right kinds of issues get before them. Courts’ job is to call balls and strikes between discrete parties, one of whom has been allegedly hurt by the other. It wouldn’t be okay for a person to challenge Trump’s border policy on the basis of status as a U.S. voter, citizen or taxpayer—“injuries” to the public are shared by too many people and thus can be remedied only at the ballot booth.

In this instance, lawyers would have to find a person or business particularly affected by the building of a border wall—say, the owner of a farm or restaurant that lies somewhere along the 1,954-mile stretch that would lose business as a result of the construction. Presumably, property owners would also be subject to forced eviction by eminent domain to make way for the wall, and military funds will be diverted from other pressing needs; these events could give rise to other injured plaintiffs with standing to sue.

Third, the lawsuit must contain what’s known as a “cause of action”—a law that gives the party bringing the case a right to money damages or an injunction halting the executive action if the plaintiff proves certain facts.

This is where the Constitution and other federal laws come in.

Border security is an issue with whiffs of both legislative and executive prerogative under the Constitution. The Appropriations Clause of Article I, Section 8 gives Congress the exclusive power to decide how federal money is spent. A Trump directive to divert funds from the military to build a border wall in the face of congressional opposition would be a constitutional power grab of troubling dimension.

Any lawsuit would accordingly feature a case from 1953 called Youngstown Sheet & Tube. President Truman tried to take over steel mills in the face of labor strikes during the Korean War because the war effort needed steel. The Supreme Court held that the maneuver was unconstitutional, but the justices disagreed on why—and on the scope of presidential powers relative to Congress under the Constitution.

Team Trump would predictably argue that the president has some form of penultimate power to do as he pleases (incorrect) or, in the alternative, that Congress gave him the authority to declare emergencies in the National Emergencies Act of 1976. That statute stopped open-ended states of national emergency and formalized Congress’s power to check the president’s use of such authority by allowing it to terminate an emergency pursuant to a joint resolution. It also requires the president to keep records and report costs to Congress. But it doesn’t do enough to rein in this president today.

Congress could always amend the statute to define what “emergency” means—a gaping hole in the legislation as it stands—but it would take a veto override to get such a law.

Although the president has commander-in-chief power under Article II, scholars debate the extent to which he is hampered by Congress’s power to declare war, raise and support armies, provide and maintain a Navy, and “make Rules for the Government and Regulation of the land and naval Forces” under Article I.

Historically, one thing is for certain: The Framers did not want a police state whereby a sovereign could use the military to implement civilian policy. In their list of grievances against England, the drafters of the Declaration of Independence emphasized that the king had “kept among us, in times of peace, Standing Armies without the consent of our legislatures,” which were “independent of and superior to the civil power.”

Thus, the Constitution puts a civilian—the president—in charge of the Army and Navy. The Second Amendment preserves citizen militias. And Article I, Section 8 allows Congress to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” Taken together, these provisions make clear that a military junta under one person would be unconstitutional.

Congress has also enacted laws constraining the use of the military for civilian purposes, including the Posse Comitatus Act, 18 U.S.C. § 1385, which criminalizes willfully using the Army or the Air Force to execute the laws except as authorized by Congress or the Constitution. There are other statutes in play here, as well.

Yet a federal court might wave off the case on threshold grounds, deeming it “too political” and one that must be resolved by the democratically elected branches. The so-called “political question doctrine” is squishy and subjective—it’s impossible to know whether the current members of the Supreme Court would wade into this quagmire. If they didn’t take the case, it would leave extraordinary new powers lodged in the presidency, possibly for good.

The complaint would likely ask for fast relief—a preliminary injunction along the lines of what emerged from litigation over the so-called travel ban. But that kind of order requires a showing of immediate, irreparable harm. Presumably, implementation of an executive order claiming a national emergency would require months of preliminary planning and contracting before the first shovel hit the ground. That kind of “harm” is unlikely to qualify for immediate relief—or justify related appeals to the Supreme Court on an expedited basis.

Nonetheless, the harm done to our constitutional structure by virtue of such a maneuver would be incalculable. As the norm-shatterer-in-chief, this president has pushed the limits of executive power beyond the wildest dreams of those of us who, for years, have concocted law school hypotheticals that we thought could never come to fruition.

An executive order declaring a national emergency at the border—one that, by most empirical accounts, would be based on gross misstatements of the underlying facts—would turn the military into a political tool of the president while deeply weakening Congress as an institution. It’s red-flag time.

Kim Wehle

Kim Wehle is a contributor to The Bulwark. She is also a professor at the University of Baltimore School of Law and a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation and author of How to Read the Constitution and Why (Harper Collins).