What happens when an unstoppable force meets an immovable object? The unstoppable force declares a national emergency to go around it.
That option appears to be President Donald Trump’s endgame to resolve the current standoff over the border wall. His demand that lawmakers provide $5.7 billion for a concrete barrier along the nation’s southern border led to a partial government shutdown that is now in its twentieth day. More than 800,000 federal workers, many of whom live paycheck to paycheck, are now furloughed or working unpaid, causing food safety inspections, airport security, and much more to slow to a crawl.
Now that Trump has backed himself into a political corner, an emergency declaration seems like the least humiliating way for him to reopen the federal government without bending on his central campaign promise. “Probably I will do it,” he told reporters on Thursday morning outside the White House. “I would almost say definitely. If we don’t make a deal, I would say it would be very surprising to me that I would not declare a national emergency.”
What would that entail? The legal mechanics are pretty straightforward, though a court battle would certainly follow. Two provisions in federal law could give Trump the off-ramp he seeks. One allows him to order the Army Corps of Engineers to work on construction projects deemed “essential to the national defense” during a declared emergency, while another allows the president to spend defense-related funds on those projects without a specific appropriation from Congress. In essence, Trump would be robbing the Pentagon to pay for the wall.
Given Trump’s authoritarian tendencies, many Americans are understandably worried about the consequences of his declaring a national emergency to satisfy a short-term political objective. “Of the 58 times presidents have declared emergencies since Congress reformed emergency-powers laws in 1976,” The New York Times notes, “none involved funding a policy goal after failing to win congressional approval.”
But such a move, while hardly inspiring confidence in the state of the American political system, also wouldn’t represent a tipping point toward dictatorship. Trump would deserve plenty of criticism for wielding his executive power like a kid with a loaded handgun, but lawmakers past and present wouldn’t be blameless in the matter. They put the gun in his hands.
The phrase “state of emergency,” especially when invoked by a president who shows little interest in preserving democracy, rightly sends a chill down spines. It’s virtually synonymous with dictatorship and illiberal putsches. Not every leader who declares a state of emergency is a dictator, of course, but almost every dictator invokes them at one time or another. Perhaps the most familiar example came after the Reichstag fire in 1933, when German lawmakers declared a state of emergency that set Adolf Hitler on an irreversible path toward totalitarian rule. Some Trump critics, in accordance with Godwin’s law, have hyperbolically invoked this history:
But Trump, unlike Hitler, would not be suspending the Constitution or usurping Congress’s power. He’d be using a moribund provision of federal law written by Congress itself. Lawfare’s Quinta Jurecic noted earlier this week that, dismal optics aside, Trump may be on relatively safe constitutional grounds when his actions reach the courts. “This is not ‘sovereign is he who decides on the exception,’” she wrote, “but a president exercising power delegated to him by a co-equal branch of government consistent with the structure of separation of powers—and likewise subject to review in litigation by another co-equal branch of government.”
How did we get here? Elizabeth Goitein, a legal scholar at the Brennan Center for Justice, explored the history of federal emergency powers in a recent article in The Atlantic. She noted that most of these powers accumulated over the twentieth century—and especially during World War II and the Cold War—as tools for presidents in moments of great crisis. After Watergate, Congress passed the National Emergencies Act of 1976 to impose new checks on the powers they had already given up.
“By any objective measure, the law has failed,” she wrote. “Thirty states of emergency are in effect today—several times more than when the act was passed. Most have been renewed for years on end. And during the 40 years the law has been in place, Congress has not met even once, let alone every six months, to vote on whether to end them.” The Brennan Center tabulated 123 duly-passed laws that grant the executive branch sweeping new powers at the president’s discretion, including the ability to lawfully commandeer telecommunications systems and declare martial law.
The lawmakers of an earlier age thus made an egregious oversight: They assumed that future presidents would use these extraordinary powers in good faith, to address genuine national emergencies. The Trump administration is a monument to their lack of foresight. In an unhappy syzygy, the areas where Congress has ceded the most power and the broadest discretion—immigration and national security—also happen to be Trump’s favorite playgrounds for both policy and politics.
Take the current state of the Temporary Protected Status system. Congress set it up in 1990 to give temporary legal status to foreign nonimmigrants in the United States if they are fleeing extraordinary hardship in their home country, such as civil war or a major natural disaster. Trump’s predecessors used it to shield migrants from El Salvador, Haiti, Nicaragua, and seven other countries from deportation. Trump used that discretion to decline to renew legal status for most of those groups. More than 200,000 people, some of whom who had spent more than two decades building lives in the U.S., are now at risk for deportation when their status expires over the next few years.
The administration has an uncanny knack for exploiting oft-overlooked provisions in American immigration law. Trump ad-libbed his first proposal for the Muslim travel ban on the campaign trail in December 2015, originally describing it as a “total and complete shutdown of Muslims entering the United States.” No law authorizing such a ban would ever make it through Congress today. Nonetheless, he was able to implement a ban on several Muslim-majority countries by citing a provision in a 1952 federal immigration law that allows the president to “suspend the entry of all aliens or any class of aliens” for an indefinite period if he deems their entry to be “detrimental to the interests of the United States.”
Why did Congress give the president such sweeping powers? The State Department’s Office of the Historian noted that two of the law’s authors, Nevada Senator Pat McCarran and Pennsylvania Representative Francis Walter, had previously “expressed concerns that the United States could face communist infiltration through immigration and that unassimilated aliens could threaten the foundations of American life.” The Supreme Court also typically gives its broadest level of deference to presidential power when it is invoked in the name of national security. Those precedents led the justices to narrowly uphold Trump’s travel ban last June, effectively sanctifying the most bigoted presidential act in modern American history.
Congress’ past foolishness does not excuse Trump’s current actions, but a declaration of emergency for political gain would not mark a terminal slide into authoritarian rule. It might even do some good by shining a spotlight on the mistakes and misjudgments of past Congresses—and providing powerful evidence of the need for lawmakers to claw back the legal authority that was too freely granted to presidents over the past century.