The president’s proposed reallocation of federal spending to build his wall is hardly an existential crisis for American democracy.
FROM POLITICO | JANUARY 9, 2019
Though betting odds had a 20 percent chance that Donald Trump would use his brief prime-time Oval Office address to declare a national emergency at the Mexican-U.S. border, he did not. Instead, he dedicated his time to a hodge-podge of lurid descriptions of violence juxtaposed to a plea for humanitarian aid. In no way does that mean the issue is settled, and a national emergency declaration remains very much in the mix as one way to break the logjam, appeal to the Republican base, reopen the government, and, oh, trigger a legal crisis. Just Wednesday, Trump claimed an “absolute right” to declare an emergency, and threatened to do so if Democrats refused to give him the wall funding he wants.
As with all things Trump, the knee-jerk reaction to the idea of the president declaring a national emergency has been extreme. Yes, Trump is manufacturing a crisis and wants to use an expansive notion of executive power to solve it; that may echo a path to tyranny, but as shadows on a cave wall aren’t the real objects, an echo is not the same thing as the real sound. Declaring a national emergency to solve an invented crisis might be misguided. It might be venal, cynical and wrong. It might set a terrible precedent, one that should not stand. And it might not pass the test of law if challenged in courts. That does not turn it into an existential threat.
The usual panoply of Hitler analogies has been trotted out, with particular reference to the way the Nazi Party used the Reichstag fire of 1933 to seize sweeping powers. A widely read article in theAtlantic by a noted legal scholar charts the extensive range of emergency powers a president can use, and which Trump could therefore abuse. “The moment the president declares a ‘national emergency’ a decision that is entirely within his discretion—he is able to set aside many of the legal limits on his authority,” the author wrote. For those concerned, and with good reason, about Trump’s authoritarian tendencies, the specter of a president conjuring a crisis and then using that to expand executive authority is the shoe that has been waiting to drop.
Except it really isn’t. Stealing a candy bar and invading a house are both crimes of theft; they are not, however, equivalent. The declaration of national emergency in order to attempt to use funds otherwise allocated in order to build 100-plus miles of fencing along the Mexico-U.S. border is of a different order than other uses of executive authority in ways that would manifestly infringe on the rights and liberties of American citizens.
It’s not as if American history is a panoply of virtue on this score, and Trump’s possible misuse of his national emergency authority would not rank high in the history of presidential overreaches. Think of Franklin Roosevelt’s use of emergency powers to authorize the internment of 125,000 Japanese-Americans during World War II, and Harry Truman’s unsuccessful invocation of emergency authority to break the strike of steelworkers in Youngstown in 1952, during the Korean War. Those examples have, of course, been circulating for some time, and the internment in particular was invoked as a troubling precedent during the debates over the travel ban. Note, however, that both of those actions were taken in times of war, and Truman’s claim was deemed an overreach by the Supreme Court. FDR’s internment decision is one of the black marks on American democracy, but it’s striking that we still do not view that as a constitutional crisis or fundamental crack, perhaps because it occurred during the war and perhaps because we have an easier time reconciling our contradictions and manifest failings in retrospect than we do in the present.
The fact that there are analogies to be made from U.S. history—and not simply, say, Nazi Germany or present-day Turkey and Poland—means that as breathless as we may be at present, these questions of executive authority and its possible misuses are hardly new. We have stared these down and debated them, and somehow survived intact, with somewhat more entrenched freedoms today than yesterday. Abraham Lincoln accrued substantial executive and extralegal powers during the Civil War, as did Woodrow Wilson not just in World War I, but in the aggressive and dubiously legal Red Raids that followed. Trump’s possible invocation of a national emergency to build a fence does not seem to rise to those levels.
In fact, as CNN helpfully documents, there are at present 32 national emergencies, which I imagine few of us are either aware of or troubled by. These include “Blocking Property of Certain Persons Contributing to the Conflict in Somalia” (declared April 12, 2010), and “Blocking Property of Certain Persons Contributing to the Situation in Burundi” (declared on November 23, 2015). The statutory authority for declaring an emergency lies most recently with the National Emergencies Act of 1976, passed in the wake of Watergate and designed to place guardrails around what a president can actually do. Trump may, of course, test those, but he would be acting neither outside of precedent nor of possible legality.
Somewhat reassuringly, even some who support the wall question the wisdom and legality of declaring an emergency to fund and build it. Senator Marco Rubio (R-Fla.) expressed caution that any expansion of executive power can set a bad precedent. “If today, the national emergency is border security,” he told CNBC, “tomorrow the national emergency might be climate change.” Many might welcome such a presidential declaration, of course, but legally, that would rest on similarly dubious grounds. Declaring a national emergency to support action to combat climate change might be welcomed by many who excoriate Trump, but it would not make such a declaration any more defensible (or any less).
Let’s say, however, that using a fake crisis to declare a real emergency is indeed beyond the pale and an abuse of authority. Are all abuses of authority to be treated as the same? Is finding $5 billion in the Pentagon’s operating budget to build fencing along a border that already has hundreds of miles of fencing the same, morally speaking, as interning 125,000 American citizens during wartime? Is it even the same as the travel ban, a revised version of which was upheld narrowly by the Supreme Court? The questions answer themselves.
Trump’s possible emergency declaration is no existential threat to our democracy. It will face legal challenges, and congressional ones. It will either be upheld, or not—and unless the president then somehow finds a way to circumvent all of that, the controversy will play out within the rule of law. Democracy won’t die; we won’t be one step closer to tyranny. We will be left where we have been for two years, with a president who continues to push the boundaries of what is acceptable and legal yet finds that the space for actual action is far more constrained than he would like.
We will be left, too, with a democracy that has broken down far more in the past than now but that has managed to survive. And we will, sooner or later, need to confront the fact that our collective hyperbole about the present is as much a threat to our well-being as anything anyone is actually doing. Yes, even Donald Trump.