Congress should terminate trumped-up national ‘emergency’

“I could do the wall over a longer period of time. I didn’t need to do this, but I’d rather do it much faster,” said President Trump during his public announcement to declare a “national emergency” to fund a border wall that Congress had just rejected. Not only was the president admitting that there was no real emergency, he was also subtly recognizing that the only perceived emergency he faced was his unfulfilled campaign promise that Mexico, not U.S. taxpayers, would fund his monument to hate at the southern border.

Some pundits have suggested that this “emergency” declaration sets up a constitutional crisis that goes to the heart of the separation of powers. Article I, Section 9 states that: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” If the executive can bypass Congress, a co-equal branch, on one of its most fundamental authorities — the power of the purse — then the legitimacy of the entire system would be put into question.

{mosads}However, historical practice, particularly before the enactment of the Antideficiency Act in 1870, suggests that such constitutional questions may be overblown. The question before us is much simpler.

The National Emergencies Act invoked by the president does not define the term emergency. This leaves Congress and the courts with the principle of statutory interpretation that a word should be given its plain and straightforward meaning.

We all know an emergency when we see one: a fire in a building. We don’t need to read a definition to know when it is appropriate —and urgent— to break the glass and pull the lever. The atrocities of 9/11 are the quintessential example of the national version of an emergency.

In this specific case, President Trump has been talking about his boogeymen at the southern border since 2015. This clashes with the common understanding of the immediacy of an emergency. The fact that a situation may be important — and this isn’t — does not make it an emergency. Both the 115th and the 116th Congress extensively debated and, after an historic shutdown, explicitly approved a budget, which the president signed, that limits the amount of money the president can spend on southern border barriers and their design.

President Trump’s real crisis is political. With Mexico predictably refusing to pay, he needed taxpayers to do so, or his main campaign promise would go unfulfilled. The fact that the president’s wall is only the latest in a series of anti-Hispanic policies, like family separation and ending DACA, underscores that his declaration is not about our national security, it is about his political security.

The Courts can, and probably will, invalidate his declaration as contrary to his authority under the National Emergencies Act. But the truly dignified solution is different.

Congress should follow the historic example of the Supreme Court, which, following resistance to its landmark Brown v Board of Education ruling, issued a unique joint opinion (Cooper v Aaron) authored by all nine justices that underscored its supremacy. Congress now has the chance to reclaim its supremacy as a coequal branch. Regardless of how members feel about the wall or about the budget, they should defend the institution of Congress and its decision on the wall expressed through the enacted budget by voting in favor of a Joint Resolution terminating the spurious wall “emergency.”

The author, an attorney, is the Executive Director of the National Hispanic Caucus of State Legislators (NHCSL).