WASHINGTON — The White House’s announcement Thursday that President Trump would claim emergency powers to build his border wall without congressional approval was a way out of the political crisis he created over shutting down the government. But while the move means the country will avoid another protracted shutdown, legal specialists warned that the long-term costs to American democracy could be steep.
As a matter of political reality, such a declaration permits Mr. Trump to keep the government open without losing face with his core supporters by surrendering to congressional Democrats on his signature issue. As a matter of legal reality, the proposal is likely to be bogged down in a court challenge, leaving any actual construction work based on emergency powers spending an uncertain and, at best, distant prospect.
But no matter what else happens, Mr. Trump’s willingness to invoke emergency powers to circumvent Congress is likely to go down as an extraordinary violation of constitutional norms — setting a precedent that future presidents of both parties may emulate to unilaterally achieve their own policy goals.
“This is a real institutional threat to the separation of powers to use emergency powers to enable the president to bypass Congress to build a wall on his own initiative that our elected representatives have chosen not to fund,” said William C. Banks, a Syracuse University law professor who is the co-author of a 1994 book about tensions between the executive and legislative branches over security and spending, “National Security Law and the Power of the Purse.”
“It sets a precedent that a president can, without regard to an actual existence of an emergency, use this tool to evade the normal democratic process and fund projects on his own,” he added.
Emergency powers statutes are laws enacted by Congress that permit the president, upon declaring the existence of a national crisis, to take steps that would normally be forbidden by law. The idea is to allow the executive branch to move quickly in exigent circumstances.
While presidents in the modern era have declared dozens of emergencies to address various problems, none has been remotely as disputed as the one Mr. Trump is contemplating. Mr. Banks said he had found no examples of a lawsuit in which someone tried to challenge the factual basis for a president’s determination that an emergency existed, leaving scant guideposts for what courts might do with any legal challenge.
Legal specialists have pointed to several statutes that permit the executive branch to redirect military construction funds in a declared emergency that the Trump administration may invoke. One such law, for example, permits the secretary of defense, in an emergency, to begin military construction projects “not otherwise authorized by law that are necessary to support such use of the armed forces.”
Another permits the Army to halt civil works projects during a declared emergency, using the freed-up resources to help construct “authorized civil works, military construction and civil defense projects that are essential to the national defense.”
The administration may seek to couple that statute with separate laws to claim Congress has already authorized various border barriers.
Still, none of those laws are a perfect fit, specialists say, raising technical disputes that will give litigants plenty to argue about in court. But a more fundamental question for what kind of historical precedent Mr. Trump’s move establishes is whether courts will even allow themselves to address whether it is true, as a matter of fact, that a national emergency exists on the border that a wall would resolve.
Critics note that the number of people crossing the border illegally is far lower than it was a generation ago. The relatively new phenomenon of caravans of migrants consists largely of families who present themselves to border officials and request asylum, rather than trying to go deeper into the interior on their own. Most illegal drugs are smuggled in through ports of entry. And there has been no instance in the modern era of a terrorist attack on domestic soil that was committed by someone who sneaked in across the southern border with Mexico.
Still, the Justice Department would surely argue that courts should not even consider the facts, but instead should defer to the president’s determination that an emergency exists. There is a long history of courts being reluctant to substitute their own thinking for the president’s in security matters — or declaring that it is a “political question” for the two politically elected branches to work out between themselves.
Congress enacted the main umbrella law that has governed how and when presidents may invoke emergency power statutes, the National Emergencies Act of 1976, during the era of post-Watergate overhaul.
At the time, while bestowing broad discretion on presidents to decide whether an emergency existed, lawmakers also created a powerful check and balance against abuse: It could end the declared emergency if majorities in both chambers voted for a resolution to do so. To keep a president’s partisan allies from bottling up such a measure, the law says that if one chamber passed such a resolution, the other one must bring it up for a vote within 18 days.
House Democrats have made clear they will pass such a resolution if Mr. Trump declares a border emergency, forcing Senate Republicans to take a stand on whether his move is legitimate. While Senator Mitch McConnell of Kentucky, the majority leader, said on Thursday that he would support Mr. Trump, it would take only a handful of Republican senators to break ranks for the resolution to pass anyway.
But that check-and-balance mechanism was severely eroded by a 1983 Supreme Court ruling. It held that to have legal effect, a congressional resolution must be presented to the president for signature or veto, like bills are. The next year, lawmakers revised the emergencies act to replace its call for the type of resolution that takes effect immediately with the kind that a president can veto.
Because it takes the votes of two-thirds of each chamber to override a presidential veto, that change has made it far harder, as a matter of political math, for lawmakers to block a dubious emergency declaration. As a result, even if the Senate does initially approve such a resolution, Congress is unlikely to override Mr. Trump’s certain veto of it if most Republican members stick with him.
Against that backdrop, Elizabeth Goitein, who oversaw a recent study of presidential emergency powers for the Brennan Center for Justice at New York University School of Law, said that Mr. Trump’s move, if he indeed followed through, would be an abuse of power and set a precedent that risked making it “open season” for presidents to cynically claim that a national emergency existed to evade democratic constraints.
“Every time this president does something that would have been unthinkable under a previous administration, and every time he acts in a way we’re used to seeing in an authoritarian regime, a little piece of our democracy dies, and this is a pretty big piece,” she said. “I know what the potential is for these laws to be abused once that seal is broken.”