Implications of national emergency declaration

The issue has somewhat receded with all the attention to Mueller’s report and the Affordable Care Act. But President Trump’s declaration of national emergency will have important implications for years to come.

Although anyone who watches cable news would assume that the act of declaring a national emergency is a decision of earth-shaking importance, that’s really not true. In reality, the declaration of national emergency is a mundane procedural decision that presidents do all the time. The claim that “well, this wasn’t really an emergency” is entirely off the point. President Trump has declared national emergencies at least twice since “the wall emergency” (to institute economic sanctions against Iranian and Venezuelan individuals) and there is no pretense that the situations leading to those declarations were emergencies. It doesn’t really matter whether the situation is understood to be an emergency or not.

So too, the Trump claim that “nobody complained when Obama and Bush did it” is equally off the point. It doesn’t matter. Those were, for the most part, narrow and noncontroversial declarations. The law being cited was clearcut.

The National Emergencies Act is really a misnomer – it should probably be called the “Activating Standby Authorities Act.” What matters is the emergency authorities that the president plans to use. These authorities must be mentioned when the president signs the emergency.

In the case of the Wall, a weak but plausible case can be made that the president has the authority under various land management laws to start the project and condemn land (weak case but possible). Where his case to build the Wall under emergencies falls apart is with its scheme to take money from other programs. That is much more questionable – both the diversion of funds from other high priority purposes AND the fact that Congress already said no will be major issues in a lawsuit (the fact that “it isn’t an emergency” won’t play in the lawsuit).

The frequent comment made that “the Democrats might use this precedent to declare an emergency about guns or climate change” totally misses the point. There is no magic to declaring an emergency. The only thing that matters is what standby authorities are available to the president. The case for emergency authorities to build the wall seems weak; in the case of guns, or climate change, it appears non-existent.