President Trump’s decision to declare a national emergency and move funds around to pay for more wall building is certain to be challenged in court. The case almost surely will arrive at the Supreme Court.
When it does, Trump may not have five votes. Chief Justice Roberts, and conceivably others among the five center-right Justices, may be quite skeptical of this use of executive power as, indeed, are a number of conservative commentators.
I haven’t studied the matter sufficiently to have an opinion. Moreover, there are lawyers and scholars whose opinions will be better informed than mine, once I reach it.
I found Jack Goldsmith’s initial take worth reading (hat tip: Rich Lowry). Goldsmith dismisses liberal hysteria that Trump is sparking a constitutional crisis and/or threatening the rule of law. Quite clearly, Trump is doing neither. As Goldsmith says:
Everything Trump proposes to do purports to be grounded in congressional statutes and much of what he aims to do does not rely on emergency power. Trump is not relying solely on Article II executive power, and he is not invoking executive power to disregard a congressional statute. Moreover, the statutes in question expressly give Trump authority in the areas in which he claims them.
There will be questions—some of them hard, and without obvious answers—about whether Trump’s legal team has interpreted these congressional authorizations, and the conditions on their use, accurately. But. . .[t]he executive branch every day relies on vague or broad or dim delegations of authority, and courts usually uphold these actions. And as Trump himself stated many times, courts will ultimately sort out his claimed statutory authority in the wall context as well.
Nor is Trump bereft of respectable legal arguments to present in court:
Many charge that Trump is declaring an emergency when there is no emergency. But this begs all the relevant questions. The relevant statute on which Trump relies does not define the term “emergency.” Presidents have always—really, always—had discretion to decide if there’s an emergency. And presidents have often declared emergencies under circumstances short of necessity, to address a problem that does not rise to an “emergency” as defined in common parlance to mean “a serious, unexpected, and often dangerous situation requiring immediate action.”
Goldsmith cites examples. President Clinton declared an emergency to address the 1996 Cuban military shootdown of two “Brothers to the Rescue” aircraft. Under Presidents Bush and Obama, this morphed into a navigation policy with the aim—like the one Trump invokes for the wall—of preventing (among other things) “a mass migration from Cuba [that] would endanger our security by posing a disturbance or threatened disturbance of the international relations of the United States.”
Goldsmith also cites Obama’s declared national emergencies due to the situation in Burundi in 2015 and piratical activity near Somalia, and Bush’s declared national emergencies due to the sale of Iraqi Petroleum in 2003 or to political oppression in Zimbabwe in 2003.
But what about the argument that, unlike Trump’s declaration, these involved no moving around of congressionally appropriated funds? Says Goldsmith:
I do not know if that is true. But I will accept that it is for purposes of argument and simply say that Congress has without discipline delegated so many large pots of money around the executive branch for so many vague or broadly worded purposes that repurposing or imaginative use of appropriated funds is an everyday executive branch occurrence. There are limits, but there is much wiggle room as well.
Here, however, Trump is using this aggressive gambit to make an end run around a Congress that did not give the president what he wanted? Again, says Goldsmith, this is common:
Scholars and commentators during the Obama era justified highly imaginative uses of executive power precisely because Congress was deadlocked. Remember the Iran Deal, the Paris Agreement, the Libya intervention, and the expansions of Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)?
In this case, though, Congress wasn’t deadlocked about the wall. It reached a compromise. This, I think, may be the biggest problem for the administration in court. (Note, however, that the compromise deal expires in September, so that Congress may again be deadlocked by the time this case reaches the Supreme Court).
Goldsmith sees other problems. He notes that Trump’s own statement yesterday that he didn’t need to do this undercuts his claim of emergency. I discussed this matter here.
Goldsmith views Trump’s statement as emblematic of his “utter lack of hypocrisy in the aggressive exercise of presidential power.” Trump’s candor will be used against him, not just in arguing specific points, such as whether there really is an emergency, but in rousing fear of an executive power grab with implications for the remainder of Trump’s time in office and beyond.
As Goldsmith puts it, Trump has “shined the brightest of lights on how much power Congress has given away, and how much extraordinary power and discretion presidents have amassed.” The Supreme Court might be tempted to say “enough.”