Trump’s ‘national emergency’ declaration is bogus — and a threat to our Constitution

‘Donald Trump, we’ll see you in court:’ Gavin Newsom announces California will sue over border wall emergency declaration

Governor Gavin Newsom announced on Feb. 15, 2019 that California will sue President Donald Trump over national emergency declaration for U.S.-Mexico border wall.
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Governor Gavin Newsom announced on Feb. 15, 2019 that California will sue President Donald Trump over national emergency declaration for U.S.-Mexico border wall.

After months of debate over President Trump’s demand for $5.7 billion to erect a US-Mexico Border wall, a 35-day federal government shutdown and Congress’ repeated refusal to fund the wall, the President declared a national emergency on February 15, 2019.

While claiming that his declaration was necessary to prevent a “foreign invasion,” he simultaneously undermined its necessity by admitting “I didn’t need to do this.”

Since Congress refused to fund it, he plans to build his wall anyway, unilaterally reallocating money that Congress has budgeted for other purposes, by exercising his emergency powers.

This situation raises serious Constitutional concerns. The border states have not reported any “foreign invasion,” nor have they requested the president declare a national emergency to send them federal funds to build a wall. Indeed, several governors, attorneys general, mayors and private property owners have vehemently opposed the wall. Can any president simply manufacture a “national emergency” and unravel the federal budget because Congress does not give him the money he demands?

The president’s unilateral seizure of federal funds threatens the viability of our Constitution’s separation of powers among the three branches of our government, the legislative, executive and judicial. The Constitution, which is the supreme law of the land, says that only the Congress is empowered to appropriate taxpayers’ money, and the president is duty bound spend it the way Congress has budgeted. Separation of powers bars the president from unilaterally making an expenditure that Congress has refused to authorize. There is no exception for “national emergencies.”

The concentration of federal power in one branch, or in one person, is precisely what the founding fathers sought to prevent. As U.S. Sen. Lamar Alexander stated regarding Trump’s declaration, “It is inconsistent with the U.S. Constitution because, after the American Revolution against a King, our Founders chose not to create a chief executive with the power to tax the people and spend their money any way he chooses.”

The U.S. Supreme Court in Youngstown Sheet and Tube Co. v. Sawyer (1952) restricted the power of the president to seize steel mills during the Korean War, because it was contrary to the will of Congress. As has been noted by numerous constitutional experts, no previous president has tried to use emergency powers to bypass the congressional will or alter the federal budget.

Equally alarming is how far the president could expand the scope of his “national emergency” powers, far beyond his border wall. Those include assuming control of internet traffic, deploying the military as a police force to subdue domestic unrest, and freezing Americans’ bank accounts. He could authorize action against any American supporting asylum seekers or undocumented immigrants claiming he or she poses “an extraordinary threat” to national security by aiding a “foreign invasion.” As James Madison once warned, “If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.”

The separation of powers cannot survive without actively respected checks and balances on the part of all three branches. For either the Legislature or the courts to allow Trump to defy the Constitution, which he has sworn to uphold, would enable him to put himself above the law. This would be not mere “presidential overreach”; it would be tyranny.

Congress and the courts should stop Trump from seizing budgetary power before he does irreparable damage to our hard-won and precious constitutional democracy.

Jan Howell Marx teaches constitutional law at the San Luis Obispo College of Law, where she is also campus dean. She is a practicing attorney and a former San Luis Obispo mayor and City Council member.