When President Trump agreed to end the historically long government shutdown on Jan. 26, he said the fiasco he triggered would be repeated in three weeks unless Congress came up with a deal on border security that he could accept. Since then, however, Trump has signaled that he doesn’t care what lawmakers do — he may not force another shutdown, but he is determined to build his border wall, with or without Congress appropriating the money.
Trump has been floating the idea of ignoring whatever deal lawmakers strike, declaring a national emergency at the southern border and using emergency powers to fund the wall. But defying Congress’ dictates on how federal dollars should be spent would be legally iffy, set a horrible precedent — and carry more than a whiff of authoritarianism.
Members of the House and Senate appropriations committees started meeting last week to try to bridge the gap between the $7.3 billion in additional spending Trump has sought for border security — including $5.7 billion for work on a border wall that could cost many billions more to complete — and the roughly $1.8 billion Democrats have proposed, none of it for the wall. They had barely gotten past the pleasantries, however, before Trump told the New York Times that the bargaining was “a waste of time.”
He sounded that theme again at a White House meeting Friday, saying, “We will be looking at [declaring] a national emergency because I don’t think anything’s going to happen” in the negotiations on Capitol Hill. “I don’t think Democrats want border security,” he added.
It’s always risky to take this president’s statements too seriously, no matter how many times he may repeat them. A case in point: Mexico will not be paying for the wall, at least not in any way that’s real and measurable.
Yet Trump has painted himself into such a tight corner on this issue, it seems as if his only way out is to build some version of the wall he promised during his campaign. That may be why he has seized on the highly questionable idea of shifting money from some other, previously funded project under the rubric of a national emergency.
The issue isn’t Trump’s legal power to declare an emergency; Congress has given the White House wide discretion to make such decisions. Instead, the issue is whether any of the specific powers Congress has given the president to use in emergencies — for example, to authorize the use of an unapproved prescription drug, to test a chemical weapon or sell surplus government property without a public auction — could be applied to this situation.
Some observers — including conservative former Justice Department official John Yoo in an op-ed for The Times — point to the 1982 Military Construction Codification Act, which states that when a national emergency “requires use of the armed forces,” the Defense Department “may undertake military construction projects … not otherwise authorized by law that are necessary to support such use of the armed forces.” That strains credulity. The military doesn’t need a wall to perform its work on the border, which isn’t being overrun by enemy soldiers or even by migrant civilians, who are crossing in numbers far lower than in 2000. Instead, the system is being overwhelmed by the number of families seeking asylum.
The bigger problem is that Trump could set a precedent for future presidents to usurp Congress’ constitutional power over the federal purse by treating political disputes as national emergencies. Presidents cannot dictate how lawmakers spend tax dollars; they have to persuade Congress. And clearly, Trump is not doing so.
Regardless of Trump’s posturing, lawmakers should craft a deal that addresses the humanitarian problems caused by the backlog in asylum requests and the surge in families seeking protection. They should also use the opportunity to provide permanent relief to “Dreamers,” the young immigrants brought to the country illegally by their parents when they were children. But they should not be cowed by the president’s posturing into wasting billions of dollars on an ineffective border wall. And if Trump carries out his threat to spend the money anyway, the courts should remind him that the president’s emergency powers have limits.
