President Trump remains out of line in threatening to use “emergency” powers to build a border wall absent legislation providing funds to do so.
In the course of fairly abject surrender to the Democrats with regard to the terms of “re-opening” the full government, President Trump used this “emergency powers” threat as a false veneer of continued toughness. His threat, if carried out, would violate our nation’s first principles.
Let’s set aside, for now, all abstruse arguments about whether some interpretation of some existing law can be used to justify such a use of emergency powers. By a more basic accounting, American principles and common sense both say it would be wrong.
First, the United States was founded in large part on philosophical objections to excessive executive authority. So-called “emergency” exceptions to that general philosophical rule are meant for dire and (almost always) sudden crises. Illegal immigration surely is a problem. But to label it an emergency is absurd. The number of illegal immigrants caught crossing the border is near 20-year lows and down 75 percent from the year 2000, the economic threat they pose to other job seekers is negligible in an economy with record-low unemployment, and the evidence is sketchy as to the proclivity of illegal immigrants to commit other crimes.
This is no emergency; it’s an ongoing small- to mid-level challenge.
Second, if it’s an emergency, the wall is not going to solve it. Border walls with the sort of effectiveness that Trump promises cannot go up overnight. By definition, one cannot solve a short-term emergency by starting a project that will take years to complete.
Third, it would be constitutionally dubious to spend money not authorized by Congress to begin the long process of building a wall. The Constitution is clear on this: “No money shall be drawn from the Treasury, but in consequence of appropriations made by law.” Of course, Trump will claim he is using authority to redirect other emergency funds over which he has at least some discretion. But to do even that, in the way he apparently proposes, is a constitutionally dicey option at the very least, pushing the edges of his powers. The intent and spirit of the Constitution, and the American creed of diffused and limited government power, argue against it.
Fourth and finally, to the extent that Trump seems to be planning to use the military construction budget to build the wall, there may be a conflict with the Posse Comitatus Act. Immigration law is technically a matter of domestic law enforcement, and Posse Comitatus forbids the Army from domestic law enforcement unless “sudden and unexpected civil disturbances, disaster, or calamities seriously endanger life and property and disrupt normal governmental functions to such an extent that duly constituted local authorities are unable to control the situation.”
An ongoing problem that’s actually far less severe now than 20 years ago is hardly a “sudden and unexpected” disturbance.
If Trump tries to claim such emergency powers, even if the courts let him get away with it, he will not be acting within the ordinary bounds of presidential powers or in the spirit of American tradition. Even though congressional Democrats are wrong to refuse Trump’s request for wall funding, Trump would be wrong to go it alone.
