OMG, it’s a national emergency!
I’m surprised not to have seen more discussion of the national emergency we are currently facing. You know, the emergency consisting of the fact that there is illegal migration.
After looking into it a little, I find, to my great alarm, that there are currently no less than 32 “national emergencies” going on as we speak! (https://en.wikipedia.org/wiki/List_of_national_emergencies_in_the_United_States) The longest standing is the one President Carter declared in 1979 during the Iran hostage crisis. It’s not just a matter of people having forgotten about it, either; a state of emergency has to be renewed by the President every year or it expires. The Iran hostages were released in 1981, but that state of emergency has been renewed every year, by every President in office, along with the 30 or so other “emergencies”.
You might assume that Trump would exceed other Presidents in abusing the “national emergency” power, given his dictatorial aspirations and general lack of shame. But Trump has only declared 4 emergencies thus far. Obama found 13, W. Bush had 12, and Clinton had 17. (https://en.wikipedia.org/wiki/National_Emergencies_Act) I bet you don’t know what any of these other emergencies were, nor any of the ongoing “emergencies” other than the latest one.
Needless to say, there are not in fact 32 national emergencies going on. I’m pretty sure that all 32 are bullshit (I’m not going to look up what all of them are). This is as good an illustration as any of the completely unrestrained bullshitting that is government. When the National Emergencies Act was passed in 1976, who could have anticipated that “emergency” declarations would be used routinely by every President to expand their powers any time they felt like it? Answer: everyone. When a law is passed, always assume that the people who are given power by that law will exercise it with no regard whatsoever for what the law is supposed to be about or what it was supposed to accomplish. Amazingly enough, there appear to be no constraints on what the President can call a “national emergency”, which means that a law saying, “In a national emergency, the President can do X” is equivalent to one saying “the President can do X whenever he feels like it.”
Why do I think that all these “emergencies” are bullshit? Here are a few reasons:
It is plausible that an emergency is created by the takeover of a U.S. embassy and the capture of 52 American hostages. It is not plausible that that same emergency is still going on 38 years after the hostages were released.
It is not plausible in general that multiple national emergencies are going on all the time, year after year, decade after decade.
It is not plausible that more than 30 national emergencies might be going on and yet a well-educated citizen might have no idea what any of them were, because none of them are receiving any press coverage.
It is not plausible that a situation that has existed every day for at least several decades (illegal migration) is an “emergency”.
If the President has bragged (correctly!) that the thing in question is at the lowest level in 17 years (https://www.politifact.com/truth-o-meter/statements/2017/apr/25/donald-trump/illegal-immigration-lowest-17-years-trump-said/), that makes it particularly implausible that it has just become a national emergency, or that the President actually considers it such.
It is implausible that the refusal of Congress to authorize a program desired by the President constitutes a national emergency. Therefore, if a declaration of emergency is obviously prompted by such refusal, it is implausible that there is an emergency, or that the President thinks there is.
I was going to comment on Trump’s shameless bad faith. But it appears that the utter bad faith and shameless abuse of power is shared by most Presidents – other Presidents just don’t get as much press coverage, because most do not trumpet their most obvious bullshit loudly and explicitly. I suppose they assume they should at least keep a low profile when they are engaging in bullshit. That’s sort of a minimal level of shame.
Legally, I think the most recent emergency declaration might be a uniquely clear illustration of the Constitutional dubiousness of emergency powers. The Constitution grants Congress control over spending. If the President can spend government money on something that Congress has explicitly rejected, merely because the President wants to, this would defeat the point of giving the spending power to Congress.
It has to be assumed that any Constitutional provision provides some sort of constraint on someone. Therefore, a sufficient condition for an action to violate a provision of the Constitution is that you can’t think of any possible action that would more clearly violate the provision if this one doesn’t. In the present case, if Trump succeeds in funding the border wall, and if this doesn’t violate Congress’ power to control spending, then I can’t see what possible action anyone could perform that would violate that power. Congress already explicitly rejected funding for this very purpose. There is no reason for declaring an “emergency” other than to circumvent Congress’ decision, and no one claims otherwise. There is no case for there being an actual emergency, other than Trump’s saying there is, and again, no one thinks otherwise. So I can’t think of any clearer example of violating the provision granting spending power to Congress.
One might think that it’s legal because Congress has authorized the President to declare such emergencies. But under the Constitution, Congress doesn’t have the power to change the Constitution – not even to give up its own powers. It would require a Constitutional amendment. Compare the fact that, according to the Supreme Court in Clinton v. New York (1998), Congress could not grant the President the line-item veto power. So clearly Congress would not have the power to grant the President the right to unilaterally override its own spending decisions. That being said, I make no predictions about what the courts will in fact say in this case.