World·Analysis

How Trump just undermined his case for an emergency over the border wall

With a self-defeating sound bite on Friday, U.S. President Donald Trump embarked on a legally dubious "emergency" course to build his border wall, setting up a constitutional clash and sparking anxieties among Republicans about how a future Democratic president might someday return the favour.

'I didn't need to do this' sound bite could be a gift for legal challenges

U.S. President Donald Trump declares a national emergency at the U.S.-Mexico border, speaking at the White House on Friday. With his comment, 'I didn't need to do this ... I just want to get it done faster, that's all,' Trump is embarking on a legally dubious course. (Carlos Barria/Reuters)

"I didn't need to do this."

If there was one self-defeating sound bite from U.S. President Donald Trump on Friday, it was this admission.

While justifying his use of emergency powers to redirect billions of dollars to build a wall at the U.S.-Mexico border, Trump's off-script aside may have been a gift for lawyers preparing to challenge his move. 

"I just want to get it done faster, that's all," Trump conceded in the White House Rose Garden.

Trump's remarks risk upending his entire case for declaring a national emergency. Illegal border crossings are at near-historic lows, raising criticisms that Trump has set up a constitutional showdown for declaring an emergency on iffy grounds. California's governor Gavin Newsom said the state will sue. Trump said he expects the fight to go to the Supreme Court, which could take months.

In the meantime, with infighting among Republicans over the emergency measure, the president will also likely be forced to use his veto powers for the first time against Congress, after having raised concerns among Republicans that a future Democratic president might someday return the favour with an emergency declaration of his or her own.

Only next time, it may not go over so well among conservatives.

Honduran migrant Erly Marcial, 21 and eight months pregnant, takes a river bath with her son David, 2, in Tapanatepec, Mexico, as they head toward the U.S. (Carlos Garcia Rawlins/Reuters)

"That's bound to surface," warned Dick Howard, a renowned constitutional scholar and Supreme Court expert with the University of Virginia. "That's the sort of thing Republicans ought to be worrying about, that someday there will be a Democratic president, and the temptation will be there to declare his or her own national emergency."

For now, a national emergency would untie $8 billion for the wall that could be diverted from drug-interdiction and military-construction programs, allowing Trump to appease his political base after Congress denied him the funds he sought.

The spending package Trump signed on Friday to avert another government shutdown only appropriates $1.375 billion for physical barriers, enough for about just 88 kilometres of new wall along the 3,200-kilometre-long southern border.

It falls well short of the $5.7 billion Trump demanded last year, prompting him to cause a partial government shutdown that lasted a record 35 days. 

A possible court injunction would likely prevent any actual wall construction beyond what's authorized by Congress.

If the project is allowed to go forward, Howard warns of a future in which a president might see a window to invoke the same powers as Trump to bypass Congress. He imagines how a Democratic president might declare a national emergency to achieve stricter firearms control, for example.

Nearly 40,000 killed in shootings in 2017

"Just think of the kinds of issues where a future Democratic president might say, 'Well, if the wall was an emergency, how about this one?'" Howard said. "The case for an emergency is actually stronger for gun control than the case for the wall, in that the number of people who die every day over guns is quite real, whereas the danger over the border is not so certain."

Nearly 40,000 people were killed in shootings in 2017 in the U.S. Meanwhile, patterns for illegal immigration at the border are near the all-time low for the last four decades, and undocumented immigrants are statistically less likely than native-born Americans to commit crimes.

This raises the question of what constitutes an actual emergency, said Liza Goitein, co-director of the Brennan Center for Justice's Liberty and National Security Program.

"Right now, it seems it's the president who's the one who gets to decide," she said. "Congress could certainly define the basic elements, and have things that everyone can agree on."

Eight prototypes for the border wall stand in San Diego in 2017, awaiting tests to determine how easily they could be tunnelled under, climbed over or chiselled through. (Paul Hunter/CBC)

If Trump can forsake executive self-restraint this way on a "fake emergency," she said, he's paving the way for the further trampling of democratic norms.

"He's broken the seal," Goitein said. "It would be tremendously corrosive for our democracy if presidents can subvert the will of Congress by declaring emergencies that don't exist, just willy-nilly."

Republican senators Susan Collins, Rand Paul and Marco Rubio have already joined Democrats in pushing back against Trump's emergency declaration.

In a statement, Rubio said, "No crisis justifies violating the Constitution," which holds the authority to appropriate and authorize money. Offering up a theoretical example, he cited a recent liberal policy championed by freshman Democratic Rep. Alexandria Ocasio-Cortez.

Today's national emergency is border security. But a future president may use this exact same tactic to impose the Green New Deal.— Sen. Marco  Rubio

"Today's national emergency is border security. But a future president may use this exact same tactic to impose the Green New Deal," Rubio said of the sweeping proposal to achieve net-zero greenhouse gas emissions, possibly at the cost of a 70 per cent marginal tax rate for the richest Americans.

As for what happens next, many legal scholars, Goitein among them, expect members of Congress to invoke a special process for voting under the National Emergencies Act to terminate Trump's state of emergency. That would require both chambers of Congress to side with or against the president in a joint resolution.

If passed, the president can still veto it.

"It would be unprecedented because Congress has never taken a vote at all to end a state of emergency, let alone managed to pass such a measure," Goitein said. "So I think the writing is on the wall that Congress needs to revisit the legal system for emergency powers … and talk about reforming the system for emergency powers so this president, or a future president, cannot do this again."

Lawmakers will likely try to invalidate the emergency declaration with a joint resolution, though the president can veto it.

If that happens, Congress can override the veto with a two-thirds supermajority vote from both houses — an unlikely scenario, given the Senate's 53-47 Republican majority.

Since 1978, presidents have declared about 60 national emergencies on the premise the government's ordinary powers would be insufficient or too cumbersome in times of crisis.

Watch Trump explain where he gets his numbers:

In a terse exchange with a reporter, U.S. President Donald Trump is asked to clarify where he gets his numbers on border crossings, drugs and violence at the U.S.-Mexico border. 1:44

There are 31 active national emergencies in effect, many of which have been renewed for years and deal with foreign threats or humanitarian crises. A state of emergency was called following the Sept. 11, 2001, attacks in the U.S., for example, as well as after Hurricane Katrina in 2005 and after the H1N1 flu outbreak in 2009.

"It's one thing to declare a national emergency if you think there are foreign troops at the frontier. Of course the courts would be deferential to that," said James Thurber, director of the Center for Congressional and Presidential Studies at American University.

"But this is the tail end of an extended set of arguments between Congress and the president as to how much money can be spent, and the president is declaring a national emergency and spending money anyway, which flies in the face of the Constitution."

Experts say the courts tend to be deferential to presidents when it comes to foreign and military affairs. But this case is a domestic issue, Thurber said, and illegal immigration numbers are down to their lowest in a decade, according to a November 2018 Pew Research study

How that can be an emergency is beyond him.

As for Trump's off-script moment on Friday, Thurber believes the president may have unwittingly caused trouble for himself by saying he "didn't need to" resort to a state of emergency.

"His words will be used against him, as they have been in other matters before the courts, and it will not help him," he said. "I'm sure lawyers are sharpening their pencils in anticipation of this."

Watch Trump declare a U.S.-Mexico border emergency:

Trump makes declaration of emergency despite data that says otherwise 2:34

About the Author

Matt Kwong

Reporter

Matt Kwong is a Washington-based correspondent for CBC News. He previously reported for CBC News as an online journalist in New York and Toronto. You can follow him on Twitter at: @matt_kwong

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