Fair warning, this is going to be a bit rambly.
Our society is built on a few fundamental ideas: all men are created equal, the government exists to protect inalienable natural rights, and the chief executive has basically unlimited powers if he declares a national emergency. Don’t we all remember learning how Congress and the President were coequal branches and one couldn’t do anything without the other unless the Congress wasn’t rubber stamping the President’s agenda? Then the President could just declare a national emergency, use the military to seize private property and enforce domestic law and use funds purposely not allocated to build a border wall to build a border wall. That’s how the Constitutional Convention intended for the constitution to work? That’s what the original public meaning of the Constitution is? Right?
But let me get a serious note in here. Every bit of the national emergency-border wall gambit qualifies as illegal, authoritarian, unAmerican, and should be grounds for impeachment. Let’s list the reasons why:
- This clearly is a national emergency. A national emergency is an emergency that is a danger to the nation. At best, the situation at the border is a humanitarian crisis, but that does not make it a national emergency or a military problem.
- This administration clearly does not view the situation as an emergency. They are just looking for legal justification for their policies that can’t pass Congress. Trump and his party controlled Congress for two years and didn’t pass funding for a wall and the shutdown went on almost a month before he chooses to declare a national emergency.
- Even if it was an emergency, this is nothing more than an obvious attempt to use a crisis to get through political priorities that can’t pass Congress. Logically, if you were genuinely trying to solve an emergency your solution wouldn’t be a wall that would take years to build and even more to litigate.
- Posse comitatus explicitly prohibits the military from enforcing domestic law. Immigration law is domestic law.
- There is no legal basis for taking funds appropriated for one purpose and using them to build a border wall.
- The majority of the land for the wall will have to be seized by eminent domain. Eminent domain is outright theft by the state. Furthermore, to be legal, it must be “expressly authorized” and “cannot simply be assumed or inferred.” Trump does not have authorization.
This brings me to the political dynamics. If we lived with a government which had a bipartisan consensus on limiting executive power, this would result in a quick and immediate veto-proof rebuke to the President. Sadly, Congress is close to being a vestigial organ. That just leaves the courts. While the law may be clear, what the courts say is legal and is actually legal are two different things. When the President claims national security, courts tend to avoid ruling against the executive branch. That said, this may be such a transparent power grab even a differential judiciary won’t go for it. But if it does, the only saving grace will be the litigation over the order itself and the potential follow up litigation over eminent domain. It might take so long to actually start the wall that a possible second Trump administration could be already over.
I don’t want to sell the freakout too much. Shredding constitutional, legal and traditional limits on executive power is the only bipartisan tradition left in Washington. Every President in the World War 2 era has abused their power.
Finally, let’s talk about the potential consequences. If this action stands, Trump just gave President Cortez the green light to declare a national emergency over global warming, use eminent domain to seize coal plants and use the military to build solar panels. Or President Harris to declare gun violence a national emergency and using the military to round up firearms. Or President Sanders to declare our healthcare system a national emergency and create a national healthcare system by executive fiat.
Obama had a pen and a phone and Trump has a national emergency.