After toying with the idea for weeks, President Donald Trump declared a national emergency to deal with what he calls a “national security and humanitarian crisis” at the border with Mexico. The move is a patent abuse of power, and it will generate a raft of legal challenges. But thanks to a lack of checks and balances in our legal system for emergency powers, the success of these challenges is not a foregone conclusion.
Let’s start with the basics: There is no emergency. Fact-checkers have already ripped apart the misleading statistics Trump has presented, and official government data show that illegal border crossings remain near their lowest point in the past four decades. Indeed, the very fact that Trump hesitated for so long before declaring an emergency suggests there is none.
Trump has explained why he waited by saying that he first wanted to give Congress a chance to pass legislation that would fund the border wall. But the purpose of emergency powers is to give the president access to standby authorities, passed by Congress in advance, that can be deployed in cases where Congress has no time to act.
If Congress does have time and has refused to give the president the authority he seeks, resorting to emergency powers to get around the objections of lawmakers is not just inappropriate. It’s a brazen attempt to undermine the balance of powers.
Given these circumstances, it might seem that the courts would put a quick stop to the president’s antics. But the National Emergencies Act, passed by Congress in 1976, will not make things easy for anyone preparing litigation to stop Trump. The law gives the president complete discretion to declare a national emergency; there is no definition of emergency and no criteria that must be met. As a result, most judges would tend to defer to the president’s determination that an emergency does exist.
That doesn’t mean the president has carte blanche to violate the Constitution under the guise of false emergencies.
Nor does an emergency declaration give the president unlimited powers. It gives him access to specific authorities contained within 123 laws that Congress has passed over several decades.
Still, the Supreme Court has already shown its willingness to defer to Trump on claims of national security. When he invoked broad immigration powers to ban travel from majority-Muslim countries after revising the ban twice to deal with objections from lower courts, five Supreme Court justices were willing to credit paper-thin national security justifications.
Trump’s move shows that it’s long past time for Congress to revisit the National Emergencies Act. While presidents should have significant leeway to decide what is an emergency, that discretion must not be unlimited.
The president can renew emergency declarations indefinitely, and Congress can terminate a declaration only by passing a law and sending it to the president for his signature. The president would almost certainly veto it — meaning that Congress would have to muster a veto-proof supermajority to end the state of emergency. Congress should replace this weak backstop with the system used by many other countries: The head of state can declare an emergency, but it is strictly time-limited, and only the legislature can renew it.
In ordinary times, it might sometimes seem that we can dispense with these kinds of checks and balances in the name of efficiency. It takes extreme circumstances to remind us that this is a bad bargain and always was. This incident should serve as a wake-up call that Congress must reform our system of emergency powers to include better protections against abuse.
Elizabeth Goitein is co-director of the liberty and national security program at the Brennan Center for Justice at New York University School of Law.