While fielding questions from reporters in the Rose Garden last week, President Trump floated the idea of circumventing Congress and using the military to build his long-promise border wall. “We can call a national emergency because of the security,” he said. “I haven’t done it. I may do it. But we can call a national emergency and build it very quickly.”
If anyone doubted the president was serious, several outlets have since reported that the White House has been discussing the prospect. Negotiations to resolve the issue and re-open the government have not been going well, with Democrats steadfastly refusing to include border-wall funding in a spending bill and Trump refusing to accept a bill that does not include over $5 billion of taxpayer money allocated toward its construction, which could ultimately cost as much as $70 billion. Something has to give. “We can only stay like this for so long,” a White House official told CNN on Saturday. Bringing the military into the picture may seem ridiculous and implausible, but then again so did shutting down the government.
On Monday morning, Trump tweeted something Rep. Adam Smith (D-VA) said Sunday on This Week with George Stephanopolous in an attempt to legitimize a potential national emergency declaration.
Congressman Adam Smith, the new Chairman of the House Armed Services Committee, just stated, “Yes, there is a provision in law that says a president can declare an emergency. It’s been done a number of times.” No doubt, but let’s get our deal done in Congress!
— Donald J. Trump (@realDonaldTrump) January 7, 2019
What Trump conveniently didn’t include in his tweet was the second part of Smith’s quote. “In this case, I think the president would be wide open to a court challenge saying, ‘Where is the emergency?’ You have to establish that in order to do this,” he told ABC on Sunday. “But beyond that, this would be a terrible use of Department of Defense dollars.”
Smith isn’t the only lawmaker to question the legality of Trump’s scheme to follow through on his biggest campaign promise. Rep. Hakeem Jeffries (D-NY) told MSNBC on Sunday that the president “absolutely does not have the authority” to declare a national emergency in service of building a border, adding that it seems to him that if there’s any national emergency it’s “because of the individual who’s sitting at 1600 Pennsylvania Avenue.” Sen. Jeff Merkely (D-OR) agrees. “The law is very specific about a declaration of war, about the type of threat that’s posed to the United States,” he told CNN on Monday. “Realize that in the year 2000, there were 200,000 people at peak coming to our border, 200,000. We’re at about a fifth of that right now. So how could this possibly be framed as a national emergency?”
As Merkely noted, illegal immigration in no way warrants the declaration of a national emergency. But Trump appears poised to use any means necessary to construct a border wall. It’s not as if declaring a national emergency just occurred to him last week, either. In December, former Trump adviser Steve Bannon explained to New York Magazine that declaring a national emergency and enlisting the military to build the wall may be the president’s best course of action. “You either have a crisis or you don’t,” he said. “If it’s a crisis, act like it. Declare a national-security emergency on the southern border. Deploy troops not to assist the Border Patrol but to replace them, then you bring in the Army Corps of Engineers to build the wall. Get the backhoes out and start digging. The Democrats, the Establishment Republicans, the media, maybe the courts — they all go nuts. Everybody fights it. But you are Trump, and you are finally building a fucking wall.”
It may not be this easy. As Popular Information’s Judd Legum points out, the National Emergencies Act of 1976 states that if the president calls a national emergency, the House of Representatives can pass a resolution to rescind it. Once that happens, the Senate has 18 days to uphold the House resolution. Though the Republican-controlled Senate has yet to rebuke Trump in any significant way, giving him the power to commandeer the military for a vanity project would be a new low, although one to which it would be unwise to put it past the GOP to sink. There’s also the issue of a potential court challenge, as Smith pointed out on Sunday.
Americans may discover the extent of the president’s authority sooner rather than later. On Monday, Trump announced that he will address the nation regarding “the Humanitarian and National Security crisis on our Southern Border” from the Oval Office on Tuesday night. A few hours before the announcement was made, Press Secretary Sarah Huckabee Sanders tweeted that Trump “will travel to the Southern border on Thursday to meet with those on the front lines of the national security and humanitarian crisis,” where he will surely give yet another address flanked by a cadre of border agents.
I am pleased to inform you that I will Address the Nation on the Humanitarian and National Security crisis on our Southern Border. Tuesday night at 9:00 P.M. Eastern.
— Donald J. Trump (@realDonaldTrump) January 7, 2019
Whether Trump will use the address to declare a national emergency or simply stress the need for border security as he has been doing since he shut down the government over it, there’s no doubt it will be rife with lies and mischaracterizations.