At long last, after signing a budget that includes $1.375 billion for 55 miles of fence construction—a quarter of the $5.7 billion demand over which he shut down the government for 35 days, and about 5 percent of the $25 billion Democrats offered last year in exchange for the DACA fix he wouldn't approve—noted negotiating expert Donald Trump declared a national border wall emergency on Friday morning. The administration, he announced, will soon direct some $8 billion towards the construction of his most famous campaign promise.
"It's a great thing to do, because we have an invasion of drugs, an invasion of gangs, an invasion of people," he told reporters, referring to a place he visited this week at which there was no evidence whatsoever of these dire-sounding conditions. "It's unacceptable." For those of you wondering whether the latest unhinged Rose Garden press conference means you should go to Costco right now and stock up on bottled water and nonperishable foods, we have assembled this helpful explainer.
What is a national emergency?
In this context, it refers to a power created by the aptly-named National Emergencies Act, a federal law passed in 1976. A key provision of this statutory scheme allows the president, after declaring a state of emergency, to take money Congress has appropriated to the Department of Defense for "military construction projects" and use it to finance other "military construction projects" that purportedly address the purported exigent circumstances. The president may not go beyond the congressionally-established funding levels, however; Trump can shuffle funds around within this pot, but not take funds from other pots for this purpose.
Colloquially speaking, it is also shorthand for everything that has occurred in the White House since January 20, 2017.
That sounds serious. How rare are national emergencies?
Not very. More than two dozen are already in place, most of which relate to the imposition of economic sanctions; one, which provides the basis for enforcing such sanctions against Iran, has been renewed every year by presidents of both parties since its genesis during the Carter administration. Trump reiterated this fact several times during his address, in an effort to show that no substantive difference exists between this declaration and the many that preceded it.
Does such a difference exist?
Yes. To spell it out: Trump is invoking emergency powers here not because of any unforeseen, dangerous circumstances that suddenly arose and merit an immediate response; he is doing so because Congress would not give him a thing he wants.
It is a transparent attempt to circumvent the constitutionally-enshrined appropriations process, ignore the will of voters (as expressed in both wall-specific polling numbers and also through their choices of representatives in Washington), and stuff the separation-of-power principles upon which American democracy rests into the trash.
Wow. Is there any check on this behavior? Is he going to get away with this?
Yes, and maybe. Once the president declares a state of emergency, the NEA allows the legislature an opportunity to end it by passing a joint resolution. As is the case with a bill, a joint resolution must be approved by both chambers in order to make it to the president's desk. If he vetoes it, Congress can override that veto with a pair of two-thirds majorities. If he signs it—or if a veto override attempt fails—the NEA effectively requires Congress to conduct a periodic review of the situation by reconsidering a new emergency-terminating joint resolution every six months.
It is a safe bet that in the House, Nancy Pelosi and company will do their half of the work immediately. Trump's task, then, is to get at least 50 senators to agree with him that, yes, a national emergency at the southern border—again, a place at which he spoke days ago without incident—in fact exists.
Is this likely?
Of course! For a joint resolution to get through the GOP-controlled Senate, four Republicans would have to defect from the party line established by their fearless leader. Then, if that event were to somehow occur—something against which I'd happily bet my life savings—a whopping 20 Republicans would have to join their Democratic counterparts to override his veto. (This assumes all Democrats would vote together, which is not a given as long as craven both-sidesers like Joe Manchin remain in office.)
Over the past few weeks, many Republican lawmakers have expressed concerns about the legality of Trump's action; when the time comes, however, it is highly unlikely any of them will have the courage to exercise their power to do anything about it. Mitch McConnell, for what it's worth, already voiced his support for the declaration, and he is the only person of whom GOP senators are more afraid of crossing than Trump himself.
Will there be any political cost for this?
Maybe? Although all Republicans are spineless, not all of them are stupid, and nervousness in the caucus' more moderate wing is what forced Trump to cave and end his shutdown last month. The Cory Gardners and Joni Ernsts and Thom Tillises of the world, who must defend red seats in purplish states in 2020, can't be thrilled at the prospect of taking a vote in which they more or less declare that they, too, believe marauding bands of brown people are pouring over the border unabated and coming to your house to kill you. Moreover, the statutory requirement that they reaffirm this position every six months might make it progressively more difficult to justify over time.
Then again, a lot of national emergencies have been active for a long time. Maybe Trump tweets some outrageous shit this evening, and voters move from caring about this constitutional crisis to caring about that one; as the weeks drag on, maybe they slowly grow accustomed to the wall emergency's existence, like frogs who don't know to escape a pot of boiling, xenophobic water. Who knows.
Can the declaration be challenged in court?
Oh yes. There will be travel ban-style lawsuits, and probably a lot of them. Many Democratic state attorneys general have already promised to act; so have a host of advocacy groups that includes Protect Democracy, the right-leaning Niskanen Center, and the NAACP. On Friday, Trump previewed the forthcoming legal battle in a monologue that he chose to deliver, for some reason, in an unsettling sing-song manner:
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Are the challenges going to be successful?
At first, yes; as Trump alludes to, at least one plaintiff will probably be able to secure a favorable ruling from a court in the Ninth Circuit, thereby preventing the administration from beginning construction immediately. Realistically, it is unlikely that any sections of emergency wall get built before the 2020 election. In other words, you are going to hear a lot more arguing about this issue over the next 20 months.
Should the case make it to the Supreme Court, probably not. If you'll recall, the Court upheld most of the Muslim ban last summer by a 5-4 margin; if you'll recall, Republican justice Brett Kavanaugh was nominated for his current position in large part because of his expansive views on the limits of presidential power. Assuming the Court's other conservatives stick together once again, this case would present him with a fine opportunity to exact some of the vengeance he solemnly vowed to pursue against the Democratic Party.
Did Trump say anything during his press conference that undermines the foundation of his declaration, and will likely go straight into the lawsuits challenging it?
Of course. "I didn’t need to do this," he told NBC's Peter Alexander, about something many noted his administration will argue in federal court is an emergency. "I just want to get it done faster."
Is there a relevant old Trump tweet?
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Should the next Democratic president, citing to this precedent, consider declaring a national climate change emergency on their very first day in office?
Shhh. He'll hear you.
