The National Emergency Act and Unilateral Power

UNILATERAL POWERS - PART I

For several years, President Trump has been pressing Congress to fund his Mexican border wall.  Frustrated with his failure, he has recently been threatening to declare a “national emergency” in order to bypass Congress’s constitutional prerogatives to appropriate funds.  His threat has been widely condemned and he has himself seemed to vacillate on the wisdom of such a course. (As of this writing, he appears to be backing off.)  Whatever he does, however, it’s important to explore the peril his threat represents to democracy.  The question is:

To what degree is the irresponsible use of the presidential power to declare a national emergency an attack on democracy itself?

As determined by our Constitution, consequent Supreme Court decisions and congressional action, the president has enormous power to act unilaterally.  (In the next post, I’ll explore other unilateral powers accorded the president.)  For instance, a president can launch nuclear weapons completely on his own, issue executive orders that bypass Congress, and initiate military action even without congressional approval. 

The National Emergency Act of 1976 gives the president power to declare a national emergency in a:

situation beyond the ordinary which threatens the health or safety of citizens and which cannot be properly addressed by the use of other law.

As wide-open as it seems to be, this act was actually an attempt by Congress to limit the power of the president by terminating “open-ended states of national emergency and formaliz[ing] the power of Congress to provide certain checks and balances on the emergency powers of the President.”  Because the nature of any actual national emergency cannot be known in advance, however, the law does not (and probably cannot) offer an explicit definition of “emergency.  The law also confers upon the president extraordinary latitude to define "emergency" as they will.  The power given to the president is necessarily unilateral because time is usually of the essence: Action must be taken quickly without political considerations or delay by court challenge.  In a crisis, the president must be given flexibility to redirect federal funds.


As Washington Post columnist Greg Sargent has pointed out, President Trump’s own words have suggested that the border situation is not, in fact, a national emergency but that he is using his threat as a political tool.  When reporters, for instance, asked the President what his “threshold” was for declaring a national emergency, he said, “My threshold will be if I can’t make a deal with people that are unreasonable.”  In other words, declaring a national emergency is an alternative that could be invoked if there is no deal to fund the wall and end the government shutdown.  In other words, this is not a real emergency; the threat is but a bargaining chip.

Although some commentators seem to disagree, the cynicism of Trump’s “justification” is probably irrelevant. It is likely that President Trump does have the power to declare the “crisis” at the Mexican border a “national emergency” no matter how preposterous his justification may seem to anyone else.  While his action will certainly be challenged in court, the Supreme Court is unlikely to allow a precedent that would call for future courts to substitute their own policy judgments for the president’s; otherwise, any such presidential declaration could be delayed indefinitely by court challenges, obviating the purpose of the entire act.

So because the president’s decision will probably be legal, Mr Trump may single-handedly shred one more norm in the use of presidential power: Decisions of serious consequence need be neither in the best interest of the country nor even rational.  The framers of the Constitution, I suspect, never imagined a president who did not, at the very least, intend to serve the best interests of the country.   Our democracy depends on such norms: the norms depend on the president’s judgment. What are the implications when the president does not use good judgment?

As I have mentioned many times (also here, here, here, here and here), our democracy is a “fragile flower” that must rely not only upon laws and legal determinations but also upon the trust of the American people.  That trust is subverted when important issues are determined by obviously fraudulent, manipulative reasons. 


It turns out that the power the National Emergencies Act confers upon a president is not the only, or even the most important, unilateral power the president has.  President Trump’s threat to begin building the wall under the National Emergencies Act is only the tip of the iceberg.

The next post will explore the wider and deeper implications of the uncontrollable “Imperial Presidency.”