‘Emergency Powers’ – Be Careful What You Wish For

BY BOB BARR

It’s a universal law of politics – every president considers the powers he inherits from his predecessor as the “floor,” not the “ceiling,” for powers he will exercise; considering these to be the minimum powers on which he will build his administration, rather than a limitation thereon. This should be a cautionary rule for Republicans now urging President Donald Trump to declare a “national emergency” in order to construct a border wall without congressionally-approved funding.

Following the government “shutdown” stalemate with House Democrats, wherein the President was not able to successfully negotiate funding for a border wall with Mexico, the Administration now is openly considering declaring a “national emergency” and making an end-run around the Congress. The primary vehicle for such a move would be the 1976 “National Emergencies Act.” While this broadly-worded Act arguably can be interpreted to permit such moves by the President, extreme caution, not abandon, should be the guide.

The problems with such a strategy are — or should be – immediately apparent. First, it is unclear if ongoing issues at the border meet legal thresholds for declaring a national emergency. More concerning, however, would be the problem of limiting the ultimate reach of such a declaration; insofar as the declaration itself potentially triggers myriad other powers having nothing to do with immigration. And, of course, there is the over-arching concern with the long-term policy implications of such a declaration.

A president certainly has the authority and responsibility to respond to immediate crises, such as a military attack; and the Constitution provides him robust power to do so. But those clamoring for Trump to use such authority to construct a border wall to limit illegal immigration, need to be reminded that any such powers still must be exercised within the parameters of the Constitution.

There are no footnotes in Article II of the Constitution declaring that “under such circumstances as a President determines” he may ignore limitations placed on the government elsewhere in the document. We are, as noted by Founding Father John Adams, “a nation of laws not of men”; not a “nation of laws except in an emergency.”

Recent history offers us an example of problems that arise when a president takes matters into his own hands and circumvents the law, because he decides it does not provide him the power he considers necessary to meet an “emergency.”

In the aftermath of the 9-11 attacks (which constituted a bona fide emergency), President George W. Bush ignored express statutory limitations on the powers granted under the Foreign Intelligence Surveillance Act (FISA) and directed that government agencies and telecommunications companies regulated by the government, surreptitiously collect electronic communications of millions of individuals without warrants required under that Act. (Interestingly, this set the stage for the Obama Administration to engage in highly questionable, if not unlawful, use of FISA when it proceeded to gather information on candidate and then President-elect Trump in 2016.)

Few would argue, even among Democrats, that America’s border security status quo is working well. The decades-long failure by multiple congresses to address the serious deficiencies in our immigration laws and system is an egregious dereliction of duty worthy of its own discussion. Still, evidence suggesting this problem has in the last few months reached “national emergency” levels, is far from incontrovertible; and is in fact highly debatable.

Republicans like Sen. Lindsey Graham, who have been around long enough to recognize the dangers created by such precedents as declaring a “national immigration emergency,” should be counseling the President to avoid travelling that road, rather than encouraging him down it.

While thinking beyond the issue of the day (right now, immigration) may be a difficult exercise for a Congress long-mired in partisan bickering, Republicans in both house of the Congress should break with tradition and do so.

In our closed, two-party political system, it is guaranteed that sooner or later, a Democrat will be elected president. Cannot the GOP envision how a Democrat president would use the precedent of Trump assuming emergency powers to meet the threat of illegal immigration? Is not the handwriting on the wall that the “other” Party would use just such a precedent to declare that gun violence or climate change has reached emergency proportions, and therefore must and can only be dealt with by exercising “emergency powers?”

Sure, Democrats almost certainly would counsel a president of their party to declare a “gun violence” or “climate change” emergency in America, regardless of what Trump does regarding the immigration problem. But why make it easy for them to do so by establishing a precedent now?


Self-Educated American Contributing Editor, Bob Barr, represented Georgia’s 7th district in the U.S. House of Representatives from 1995 -2003 and as U.S. Attorney for the Northern District of Georgia from 1986-1990.