Trump’s Threat to Declare National Emergency to Get Wall Funding Would Face Legal Challenges

Published on January 6, 2019 by Athena Pallas

President Trump again today threatened that he would declare a national emergency to get the funding he wants for his wall if congressional Democrats don’t agree to give him that funding, but many believe such an effort would face extensive legal challenges. Some say that Trump doesn’t have the authority to declare a national emergency for that reason, wall funding, while others state that even if Trump would have the authority, he would have to be able to prove that a national emergency actually exists, but facts do not support that contention nor do they support that a wall would be an effective countermeasure to the issues involved. In either case, if Trump attempts to go the national emergency route, he would almost certainly face immediate court challenges, ones that would likely impose injunctions against proceeding with such a wall while the lawsuits played themselves out in court.

Today Trump repeated the threat he first made publicly on Friday to declare a national emergency in order to liberate billions of dollars in funds for his wall, attempting to skirt the authority of Congress and the will of the people, a majority of whom do not support the wall, according to polls, including a November poll from CBS News. That CBS News poll showed that of those polled, overall the majority (59%) do not support building the wall and that there is definitely a split along party lines, where 84% of Democrats in the poll did not support building the wall, while 79% of Republicans in the poll did support it.

Let’s absorb those poll numbers about Democrats in the context of some of Trump’s other comments about the wall. Two of the things Trump has contended without evidence are, first, that the majority of the federal workers out of a paycheck because of the shutdown are Democrats and second, that “many” of these people are fine being without a paycheck because they so support Trump’s wall that they are willing to forego being paid as long as is necessary for Trump to get the funding he wants for his wall. Now, that last contention is ridiculous just on its face, as people are likely to want to be able to feed their families and keep a roof over their heads by continuing to have an income, rather than forgoing it to give Trump what he wants and many Americans are living paycheck to paycheck, so they do not have much savings as a buffer. But given poll results that show, just like Democrats in Congress, Democrats in the population at large do not support the wall, by a wide margin, it seems particularly far-fetched for Trump to claim that among this population he claims to be mostly Democrats, “many” are so supportive of his border wall that they are fine not having an income. Trump has no evidence for his claims, as is unfortunately so often the case. He seems to just make up whatever suits him in the moment, with no compunction about lying over and over again.

Today Trump restated his threat as he was about to travel to Camp David. Weekend negotiations over the government shutdown, which have thus far produced no results, have been the province of Vice President Mike Pence and aides for congressional leaders involved in the weekday negotiation meetings. Trump himself, at least publicly, has become completely intransigent on the issue, which suggests he is not negotiating, just demanding his wishes be met. Representatives Adam Schiff (D-CA), chairman of the House Intelligence Committee, and Adam Smith (D-WA), chairman of the House Democratic Armed Services Committee, both responded to the threats by describing different ways in which Trump declaring a national emergency for this purpose would be challenged legally. According to Politico:

President Donald Trump on Sunday again threatened to declare a national emergency as a means to construct his proposed wall along the U.S.-Mexico border…“I may decide a national emergency depending on what happens over the next few days,” Trump told reporters as he exited the White House en route to Camp David, according to a pool report…“There is a provision in law that says the president can declare an emergency,” (Rep. Adam) Smith said Sunday on ABC’s “This Week with George Stephanopoulos.” “In this case, I think the president would be wide open to a court challenge saying, where is the emergency? You have to establish that in order to do this.” But Rep. Adam Schiff (D-Calif.), chairman of the House Intelligence Committee, disagreed. “I make of that really threatening talk from the president that he doesn’t have the power to execute,” Schiff said in an interview with CNN’s Jake Tapper. “Look, if Harry Truman couldn’t nationalize the steel industry during wartime, this president doesn’t have the power to declare an emergency and build a multibillion-dollar wall on the border. So, that’s a nonstarter.”

Trump has attempted to shift blame to Democrats for the shutdown, reneging on his widely publicized comments in a pre-shutdown December meeting with Nancy Pelosi and Chuck Schumer in which he said that he would take the blame for any shutdown and would not blame Democrats. A man of his word Trump clearly is not. Trump very clearly is the cause of the shutdown and its perpetuation. The last Congress, even with Republican majorities in both houses, was poised to pass all the needed appropriations bills so that all aspects of government would be funded at least into February, and Trump had originally indicated he would sign them, but then was swayed by the criticism of conservative media hosts like Rush Limbaugh and once again reneged on a promise, reverting to demanding some $5 billion for his border wall. That, and that alone, is why 25% of the government is shut down, why 800,000 federal workers are either furloughed without pay or working without pay. Trump expects everyone else to bend to his will, to his unilateral decisions and his unwillingness to compromise, one of many behaviors that call in to question his self-proclaimed negotiation prowess and show why authoritarian, rather than democratic, leaders seem to appeal to Trump most of the time.

Featured image via Wikimedia Commons.