As the shutdown that has closed a quarter of the federal government for nearly a month proceeds, the likelihood that Donald Trump will declare a state of national emergency to access money for a southern border wall grows, in Trump’s own expansive single-sentence syntax, from possible to probable to definite. And this would present us with a constitutional crisis of the first order.
We associate executive proclamations of national emergency with authoritarian states. In fact, we have had a slew of them since Woodrow Wilson announced the first one as he prepared to enter World War I. Emergency decrees go back even further, including Abraham Lincoln’s suspension of habeas corpus during the Civil War — and, hey, weren’t Lincoln and Wilson supposed to be among the good guys?
Emergencies do occur; when George W. Bush suspended all commercial aviation after 9/11 (except for the flight that carried potentially implicated Saudi officials back home to Riyadh,) there was no complaint. But presidents have certainly abused the authority before, as when Franklin D. Roosevelt ordered the internment of Japanese Americans during World War II, or when Harry Truman used a proclamation of emergency to cover our entry into the Korean War in lieu of requesting a Congressional Declaration of War. That latter event effectively stripped Congress of its Constitutional war making powers; no president since has requested such a Declaration, and no Congress has sought it.
The U. S. Supreme Court did reject Truman’s seizure of steel industry plants two years later in Youngstown Sheet and Tube v. Sawyer, but without effectively constraining the president’s general discretion to declare emergencies or attempting to define their scope and reach. This was a problem that the post-Watergate Congress sought to address. Richard Nixon did not attempt to invoke a state of emergency to defend his collapsing presidency in 1974, but the fear that a future president might do so under similar or comparably unjustified circumstances prodded Peter Rodino, who as Chairman of the House Judiciary Committee had been one of the heroes of Watergate, to introduce what became the National Emergencies Act of 1976.
The intent of the Act was to legislatively define and thereby contain the presidential power in declaring states of emergency. In its original version, it provided that Congress might rescind a state of emergency by a joint resolution of both houses. Ronald Reagan objected to this as an infringement on presidential authority, and in 1985, the Act was modified to require executive approval of such a resolution. In effect, that made the president the final judge of his own actions, and so gutted the Act.
One might have thought the Act had pretty much slumbered until now, with the exception of 9/11. In fact, there have been 58 proclamations of national emergency since 1976, of which 31 remain in force. Trump’s predecessor, Barack Obama, issued twelve of them (Trump has thus far issued three). Many of these proclamations relate to the imposition of sanctions on foreign countries, such as Iran, of whose behavior we disapprove. None of them, except the 9/11 proclamation that has been used to justify our open-ended War on Terror, has been particularly controversial until now. Trump’s wall proclamation, if it comes, would be in a different category altogether. There is no emergency at the border, assertions to the contrary notwithstanding. Attempted illicit border crossings have declined by more than 75 percent since 2000. The number of suspected “terrorists” stopped at the border last year was not 4,000, as claimed by the administration, but 12. The number of reported terrorist attacks in the U. S. from southern border crossings since 9/11 is zero. As for the necessity or even utility of a wall — which experts almost uniformly dispute — Trump has made no serious attempt to procure funding for it until now. So, what’s the emergency?
To answer that question, we must look at the circumstances of the present crisis. In mid-December, Trump was reportedly ready to sign off on an appropriations bill that had requested but contained no wall funding. He abruptly backtracked when criticized by a couple of Fox News loudmouths, reinstating his original demands. There was no strategy here, merely the President’s usual inattention and incompetence, and his hurry for a Florida vacation. The shutdown that resulted was, accordingly, a political miscalculation that morphed into a showdown when Congressional Democrats refused to have the government held hostage to a spending demand.
Trump may have blundered into the crisis, but he quickly saw value in it. A shutdown of the government would divert attention from embarrassing Congressional probes, the testimony of Michael Cohen and others and the long-anticipated Mueller Report. Best of all, by invoking a national emergency, Trump could get access to wall funding from monies allocated to federal disaster relief without Congressional approval at all. Since his particular betes noires, Puerto Rico and California, were among the recipients of such aid, that amounted to an irresistible trifecta. If he held his ground, a proclamation of national emergency would be the only way to reopen the government, whose closure, as the weeks progressed, was rapidly becoming the critical issue.
The constitutional crisis, meanwhile, is clear. There are three essential powers that define Congressional authority: the power to declare war, the power to check abuses in the executive and judiciary and the legislative power itself, most especially the power of the purse. Congress abdicated its war making power when it bowed to Truman’s preemptive entry into Korea. It failed to make the president’s emergency powers accountable after Watergate. And it now faces a precedent in which the president can effectively control the public purse by invoking emergencies, real or spurious. That would make him, effectively, a tyrant.
Almost 400 years ago, a similar crisis pitted the English Parliament against its ruler, King Charles I. Charles demanded forced taxation from his subjects to support a war policy that Parliament and most of the country opposed. Parliament recognized that its own future was at stake, and with it the rule of law. Its leaders resisted the King. The eventual result was civil war, and the King’s execution for treason. The end of the story was modern liberty, which is now at stake again, and not in America alone.
We will see how Congress meets its own historic test.