Perhaps—but the move would be a fraught political ploy
ON JANUARY 8TH, in a prime-time address from the Oval Office, Donald Trump repeated his case for building a “physical barrier” on America’s border with Mexico. Erecting a 1,000-mile-long wall to stem the influx of illegal migrants has been a core objective of Mr Trump’s presidency since the early days of his campaign in 2015. Nearly two years after he took office, his project remains stuck at the conceptual phase. But a budgetary showdown with Democrats in the House of Representatives has given Mr Trump a context in which to renew the fight. The president refuses to sign a bill re-opening the federal government unless Congress gives him $5.7bn toward the construction of a border wall. With negotiations at an impasse, on January 6th Mr Trump threatened to “declare a national emergency” and circumvent Congress if lawmakers do not act on his request in “the next few days”. Can the president use emergency powers to fulfil his campaign promise?
Possibly. But the path ahead, should Mr Trump take this route, will be bumpy. Presidents do have wide discretion to declare national emergencies and take unilateral action for which they ordinarily need legislative approval. A “latitude”, John Locke wrote in 1689 (and his writings influenced the US constitution), must be “left to the executive power, to do many things of choice which the laws do not prescribe” since the legislature is often “too slow” in an emergency. American presidents have, for example, suspended the constitutional guarantee of habeas corpus(Abraham Lincoln during the Civil War), forced people of Japanese descent into internment camps (Franklin Delano Roosevelt during the second world war) and imposed warrantless surveillance on Americans (George W. Bush after the September 11th attacks). With some notable exceptions, including when the Supreme Court baulked at Harry Truman’s seizure of steel mills during the Korean War, the judiciary has usually blessed these actions. In addition, Congress has passed dozens of laws—New York University law school’s Brennan Centre for Justice has catalogued 123—giving presidents specific powers during emergencies.
The National Emergencies Act (NEA) of 1976 sought to regulate the use of emergency powers; in practice, it has imposed only mild constraints. The NEA requires presidents to alert Congress when invoking these powers and to explain which statutes they are drawing on, but leaves the concept of “emergency” undefined. So it is probably irrelevant whether Mr Trump’s purported “crisis” actually exists on the southern border. Still, declaring an emergency is only the initial hurdle. Several fraught steps must be taken in order to allocate billions in federal funds to a border wall. If Mr Trump invokes a law permitting the redirection of military spending to a project “essential to the national defence”, for example, Elizabeth Goitein of the Brennan Centre explains that his plan may founder on the fact that Congress has not explicitly authorised spending for a border wall. As John Fabian Witt, a historian at Yale University, writes, whether Mr Trump has the authority to declare a national emergency to build a wall is a “much closer question than it should be”.
Will Mr Trump follow through on his threat to take extreme measures if Nancy Pelosi continues to deny him funding for the barrier? The move would immediately trigger lawsuits; scholars divide over whether they would stand a chance of throttling Mr Trump’s plans. But if the battle with Congress is more about spectacle than policy, the emergency route could offer the president a face-saving way to sign a bill re-opening the government while pursuing an alternative strategy for funding his wall. Mr Trump might achieve his aims, then, simply by putting up a fight: whether he wins or loses in court, he scores with his supporters. But that means playing a high-octane game of politics that tests the limits of—and arguably abuses—a president’s most extraordinary powers.