Donald Trump may well decide to declare a national emergency to build a $5.7billion US-Mexico border wall. Indeed, given the undesirability of both alternatives — another government shutdown or backing down from his marquis pledge to voters — perhaps the only way Trump won’t go down this path is if congressional Republicans refuse to support his political adventures.
According to analysis by Chris Cillizza, editor-at-large at CNN, recent statements by both the president and House Speaker Nancy Pelosi indicate that “[t]he chances of Donald Trump declaring a national emergency at the border just went way up”.
Although GOP members on Capitol Hill have mostly deferred to Trump during his time in office, some have expressed scepticism over the president issuing an emergency declaration. Here are four reasons why Republicans in Congress – even if they favour a wall – should say “no” to Trump invoking emergency powers.
1. It’s illegal
Bruce Ackerman, a Yale Law School professor, argues that “[n]ot only would [Trump declaring a national emergency] be illegal, but if members of the armed forces obeyed his command, they would be committing a federal crime.” Ackerman points out that U.S. troops are almost never permitted to be involved in domestic law enforcement. He also cites the National Emergencies Act of 1976, which “formalize[s] the power of Congress to provide certain checks and balances on the emergency powers of the President.”
Even if one disagrees that a president can’t declare a national emergency to deal with a crisis like unauthorized immigration, it’s hard to make the case that such a “crisis” actually exists. Data show that apprehensions of unauthorized immigrants to the United States have actually dropped considerably in recent years, from more than 1.6million in 2000 to 396,579 in 2018. Despite the president’s warnings about undocumented border crossings reaching a crisis level, the problem is actually becoming less magnified, not more.
2. It violates the spirit of the Framers
Political columnist George F. Will claims that, although Trump may “technically” be allowed to declare a national emergency, doing so now still presents a problem. “[A]n anti-constitutional principle would be affirmed,” he says. “The principle is: Any president can declare an emergency and ‘repurpose’ funds whenever any of his policy preferences that he deems unusually important are actively denied or just ignored by the legislative branch.”
As any student of American politics knows, the Framers set up the federal government with three branches: the executive, the legislature, and the judiciary. Each is vested with discrete powers. Congress is responsible for passing bills and the federal budget. To take those powers out of the hands of Congress – and to permit the president to override them, particularly when the existence of a national emergency is far from clear – is contrary to what the Framers would’ve supported.
3. A Democrat may be president next
Missouri senator Roy Blunt notes that while he wants a border wall, he’s wary that “there might be a future president that I don’t agree with that thinks something else is an emergency.” It would be a mistake to dismiss Trump too soon as a one-term president, but his poll numbers don’t look promising. According to FiveThirtyEight, Trump’s national approval rating has slipped below 40%. His favourability in key swing states also suggest a narrow path for re-election.
The GOP won’t occupy the Oval Office forever. If in two years a Democratic president is inaugurated – and that individual wants to expand executive powers to push a liberal agenda – Republicans will have no one to thank but themselves for setting the precedent. In the nation’s capital, what goes around, comes around. Many Republicans were in Washington long before Donald Trump, and they’ll be there long after. Altering the rules of the game for a short-term payoff isn’t worth the cost.
4. Donald Trump may be president next
Although most won’t admit it, for some Republicans on Capitol Hill, the only thing worse than a Democrat taking the oath of office in two years would be Trump doing so a second time. If the concern is that a Democrat would use broadened emergency powers to advance progressive policies, one can only imagine what Trump might do when freed from the constraint of another election. The long-term damage he could inflict on the Republican brand might be non-redeemable.
The wall isn’t the only place where Trump has pressed the permissible boundaries of what constitutes a threat to the country. Just last year, he labelled one of America’s closest allies, Canada, a threat to national security while renegotiating steel and aluminium tariffs in the context of the United States-Mexico-Canada Agreement. Republicans have good reason to be concerned that the wall isn’t the last instance where Trump might invoke emergency powers based on a questionable premise.
Ultimately, Republicans on Capitol Hill might think that a wall is in the best interest of securing America’s borders. Even so, they should think twice before supporting the president in declaring a national emergency. That they might be the only ones who can dissuade Trump makes their decision that much more consequential.
Thomas Gift is lecturer of political science and director of the philosophy, politics, and economics programme at University College London.