Yes, Trump’s “National Emergency Concerning the Southern Border of the United States” is different

After much hee-hawing and a good deal of pomp and circumstance, the mad lad finally did it: President Trump declared a “National Emergency Concerning the Southern Border of the United States” on February 15, 2019. Democrats pounced calling the action unprecedented, and at least one blue-state governor (Gavin Newsom of California) already announced his intention to sue the President. The House Judiciary Committee is opening an investigation, and even some Republicans, such as Senator John Cornyn of Texas, have expressed the sentiment that this is a dangerous move.

Nonetheless, some conservatives are sharing images like the following on social media:

The “Carter Did It First” Excuse

The above tweet is correct. Including the Southern Border National Emergency, there are 31 active national emergencies. These are authorized under the National Emergency Powers Act of 1976, which prescribes the manner by which a President may declare one. Here’s a sample:

  • November 14, 1979 (Carter): Blocking Iranian Government Property
  • January 23, 1995 (Clinton): Prohibiting Transactions With Terrorists Who Threaten To Disrupt the Middle East Peace Process
  • November 3, 1997 (Clinton): Blocking Sudanese Government Property and Prohibiting Transactions With Sudan
  • October 27, 2006 (Bush): Blocking Property of Certain Persons Contributing to the Conflict in the Democratic Republic of the Congo
  • June 26, 2008 (Bush): Continuing Certain Restrictions With Respect to North Korea and North Korean Nationals
  • November 22, 2015 (Obama): Blocking Property of Certain Persons Contributing to the Situation in Burundi
  • September 12, 2018 (Trump): Imposing Certain Sanctions in the Event of Foreign Interference in a United States Election

A full list can be found here: https://en.wikipedia.org/wiki/List_of_national_emergencies_in_the_United_States

As you can see, a very clear pattern emerges: since at least the enactment of the National Emergencies Act of 1976, a National Emergency has mainly concerned itself with foreign affairs and with imposing sanctions on certain people. There are a few exceptions, but these again deal with financial transactions in foreign affairs (e.g., Bush’s National Emergency Declaration on May 22, 2003 for Protecting the Development Fund for Iraq and Certain Other Property in Which Iraq Has an Interest). These declarations do not need additional funding allocated to them as they are carried out under per-existing statutory authority for which funding has already been allocated.

President Trump’s National Emergency Concerning the Southern Border of the United States is quite obviously different. It seeks to allocate $8 billion to the building of more walls along the border of the United States and Mexico.

The building of additional sections of wall is, in my view, justifiable. A wall is the most effective solution for curtailing illegal immigration, which is an humanitarian crisis that contributes to human trafficking, depressed wages for the working class, and labor exploitation. At the time being, many crossing the border illegally are lured by false promises of work by unscrupulous coyotes. Furthermore, there has been a sharp rise in the number of unaccompanied minors caused by parents in Central America being misled about just how dangerous the journey for their children to the United States is. An improved wall would not reverse this completely, but it would help significantly.

However, this is also not a National Emergency and it is a very sharp break from previously declared national emergencies. Appropriation authority is very clearly delegated to Congress, and Congress has quite explicitly allocated just $1.8 billion to building physical barriers in the shutdown deal that was struck this past week.

Should Trump succeed, future Presidents may use his action to justify ever more grotesque displays of imperial power. It is not so difficult to imagine future Presidents simply bypassing Congress completely to build pet projects of a dubious nature such as high-speed rail or seizing legally owned firearms.

However, if Trump does succeed, Congress has only itself to blame. For decades it has allocated more and more power to the executive branch, abrogating its own authority in areas ranging from domestic trade & commerce to foreign affairs. It should come as no surprise that in recent years it has become little more than the House of Obstruction as it has simply become irrelevant. Hopefully, this National Emergency will be struck down and the Constitutional Separation of Powers will enjoy at least a few more hours of relevance.

 

Nathan Caldwell

 

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