Theo’s take on the nation: Trump’s national emergency declaration is dangerous and will only backfire

Theo Teske, page editor

In the middle of February, President Trump issued a National Emergency on the southern border, labeling illegal immigration a national security threat. A politically calculated move, the declaration allowed Trump officials to secure funding for the construction of a wall along the border. The immediate backlash was overwhelming. For example, 58 former national security officials in the federal government signed an open letter opposing the declaration.

Trump is deriving the power to declare a national emergency from the aptly named National Emergencies Act of 1976, which allows the president to use existing powers already granted to him by Congress in various other laws to justify his reallocation of funds. However, it’s unlikely the Trump administration would be able to do this in a politically favorable manner.

While Trump has options, none of them are appealing. The Brennan Center for Justice identifies 123 statutory powers Trump could draw on, but only a handful actually apply to immigration, with nearly all of these requiring funds to be drawn from money allocated to the military. The plan advanced by the administration thus far takes $600 million from a Treasury forfeiture fund, $2.5 billion from Department of Defense counter-drug operations, and another $3 billion from military construction projects.

The fact that the vast majority of this money comes from the military will be unpopular among Republicans. To make matters worse, the most recent iteration of Trump’s wall is estimated to cost around $59.8 billion, but the current plan gives him a grand total of just over $6 billion. Furthermore, Trump can only draw so much funding from each law he isolates to grant himself funding, so to get more money he has to justify the use of more laws.

There are two possible ways the fight over the national emergency could play out, neither of which benefits the Trump administration. In the first scenario, Trump’s national emergency declaration survives all legal challenges and Trump secures funding for his wall. At best, Trump will have achieved a pyrrhic victory, as Republican politicians and voters will resent his use of defense funds and he won’t have nearly enough money to buy a wall that will satisfy his base.

At worst, Trump will have forever expanded executive power, undermining Congress and the power of the people that the legislative branch represents. For Trump’s declaration to hold up in court, a broad interpretation of the National Emergencies Act will have to be established as the new precedent.

Politically, this harms Trump and the Republican Party because any future Democratic president could use that precedent to pass national emergencies on issues such as gun control or climate change, running directly counter to Trump’s agenda. However, it also harms American democracy when a president can bypass Congress to essentially write legislation, severely compromising the system of checks and balances between the three branches that keeps the government accountable.

The other scenario involves the national emergency being struck down in the courts. If this comes to pass, Trump will have gifted Democrats a line of attack for the 2020 presidential election. Trump has already gotten into legal trouble over his executive order banning immigration into the United States from certain Muslim-majority nations, which was finally upheld by the Supreme Court on its third iteration after being struck down twice.

Shrewd Democratic candidates can use this to flip the script on Trump, portraying him as having become the very kind of power-seeking and corrupt politician that he railed against on the campaign trail in 2016. Such a message could play well to moderate voters who were swayed by Trump’s anti-establishment diatribes in the last election cycle.

No matter how the saga of Trump’s national emergency declaration ends, in the long run, it will be harmful to Trump politically and potentially destructive to America’s democracy.