January 14, 2019


What Someone Needs to Explain to Trump About 'National Emergencies' (BOB BAUER, JANUARY 11, 2019, Defense One)

It is critical to bear in mind what is at stake here: Congress has exclusive control of the power to appropriate. The expenditure of federal funds without lawful congressional authorization is a criminal offense. Congress could have written into the law the president's unfettered discretion to determine the existence of an emergency. It did not. Courts will not lightly read into the law what Congress does not expressly provide on an issue central to the constitutional separation of powers.

Moreover, the more questionable the case for an emergency, the more unlikely that a court would read the statutory authorizations as broadly as the administration would like. You can only push the courts so far. A president who's trying to advance the most aggressive case for deference to his judgment about an emergency may succeed on that front, and then fail to convince the courts that even with the emergency in place, he has clear statutory authorization for the particular project--in Trump's case, of course, the construction of the "beautiful" steel wall with slats that enable stateside observers to peer through to the other side.

So the first problem the president faces is seeking to exercise discretion under this statute that he does not have. The second is that some of what he has said about the "emergency" undercuts the very claim that there is one. In fact, the president has periodically declared that things are going quite swimmingly at the border, as he did in remarks in meetings with congressional leaders:

A lot of the wall is built. It's been very effective. I asked for a couple of notes on that. If you look at San Diego, illegal traffic dropped 92 percent once the wall was up. El Paso, illegal traffic dropped 72 percent, then ultimately 95 percent once the wall was up. In Tucson, Arizona, illegal traffic dropped 92 percent. Yuma, it dropped illegal traffic 95 to 96 percent.

Now, of course, the administration will argue that these comments merely showcase the virtues of the wall. If walls work in San Diego or Tucson or El Paso, they can be expected to work with similarly spectacular results elsewhere.

The downside of this argument, however, is that to take the president at his word, the administration is making do quite nicely without the declaration of an emergency--and he has pushed his point hard. At Christmastime, he advised the American public that "our country is doing very well ... We are securing our borders," after tweeting two weeks before that, "Border Patrol and our Military have done a FANTASTIC job of securing our Southern Border ..." What, then, supports the need for the use of extraordinary authorities in the name of an "emergency"?

Trump is not helped in answering this question by his other, repeated public utterances on the subject. He and his spokespersons have repeatedly made false statements about the terrorists, drugs, human trafficking, and ordinary criminals crossing over into the United States on foot at the southern border. These claims have been debunked by fact-checking just about everywhere, including at his own State Department. So he starts off in a bad place when claiming legal authority to proclaim an emergency, having both bragged that he is doing quite well without one and then misrepresented the grounds that might exist for such a proclamation if he nonetheless decided to issue it.

Finally, courts will not fail to note the considerable evidence in the president's public statements that he is looking to the national emergency as a tool to resolve a conflict with the Congress. He has said that one way or another, he is going to build the wall, and the shutdown was the first bare-knuckled maneuver to break the stalemate in congressional negotiations. Now he's speaking of an emergency. It is, on its face, a negotiating gambit, apparently also a political rallying cry. But because he is treating the declaration of an emergency as a tactic, he has added considerably to his difficulties in having his "emergency" taken seriously by the courts.

The president's predilection for trampling on his own case brings to mind his unhappy experience with the travel-ban litigation caused by his statements on Twitter and on the campaign trail. Eventually, after considerable trimming and adjustment, the administration was able to do better with a revised executive order and a superseding proclamation. These cases tested difficult questions about the extent to which the president's public utterances--including statements on the campaign trail--invite the examination of the true motives behind executive action.

That Trump eventually survived this scrutiny in the travel cases will have little relevance to his efforts to concoct a national emergency now to support his wall-building project. In the travel-ban cases, the Supreme Court found that he was operating under an immigration law that "exudes deference to the President in every clause."  The National Emergencies Act only "exudes" deference to his decision to proclaim an actual emergency. Moreover, none of the tricky issues presented by campaign-trail statements made prior to the election are present in this instance. Trump has issued a steady stream of statements as president. No one has to engage in any raw speculation or psychological testing to ferret out his motives. He has said what he has said, in clear terms and consistently. These are not slips of the tongue, but one statement after another, most of them separately--and all of them in the aggregate--damning to his legal position on the existence of an emergency.

Commentators looking for illuminating constitutional precedents typically begin with the Youngstown Steel and Tube Co. case, in which the Supreme Court rejected President Harry Truman's claimed authority to direct the secretary of commerce to seize steel-producing facilities. The majority in that case produced two opinions, and other justices wrote as well, so it is fair to say that teasing out lucid doctrine from that case is no simple matter. However, it has become clear over time, from the more developed historical record, that the Court was decisively influenced by the evidence that no steel-shortage crisis existed. There was no emergency, and the Court was aware of this.

And so, for that matter, was the Truman White House. One staff memorandum that later came to light openly acknowledged public skepticism about the claim of emergency and conceded that it was well founded. "The fact is that the public has never believed this contention, and in the face of recent releases of steel for racetracks and bowling alleys, they are even less likely to believe this now."

For this reason, Maeva Marcus, a leading historian of the case, has written: "The Court simply was not convinced of the crisis confronting the nation was sufficiently grave to justify the president's assertion of power." The factual circumstances surrounding the president's claim of authority drove the court's decision. Marcus notes approvingly one commentator's view that "the legal arguments between the two divisions of the Court [in Youngstown] were consequently of little significance; the vital disagreement was over premises." The Truman administration's key premise was an emergency shortage in steel production--and there was none.

Trump has manufactured for himself the same problem from which Truman suffered: an absence of presidential credibility. It is possible, of course, that the courts will let Trump off the hook, giving him more of the benefit of the doubt than Truman enjoyed. Trump would purportedly be acting pursuant to a statute, not on an expansive claim of inherent, constitutional authority. But is also true that when Truman misrepresented the emergency steel shortage, he was at least leading a nation at war.  

It is also worth noting that Trump is repeating another mistake that Truman made. Like his distinguished predecessor, he is flaunting his view of the unqualified "absolute right" to declare this emergency. It never serves presidents well to enter into these constitutional tests with a show of arrogance, especially when their legal footing is far from secure. If Trump doubts this, he might ask legal veterans of the George W. Bush administration how they fared before the courts in advancing confrontational positions on rule-of-law issues in the War on Terror.

Posted by at January 14, 2019 3:57 AM