State of Uncertainty: Emergency Declaration on the Border
February 26, 2019
Why declare an emergency?
On February 15th, 2019 President Trump declared a state of emergency at the US-Mexico border in an effort to secure funding for his long-promised border wall. The move had been predicted for months as a way to avoid a government shutdown if Congress refused to allocate the funding in the annual budget.
Faced with the prospect of another shutdown only weeks after triggering the longest in history, the Trump administration again floated the emergency declaration as a solution.1Politically, it would be difficult for the President to weather another shutdown. Polls showed the majority of the American public blamed the Republican Party and specifically President Trump for the first shutdown.2 Risking another would be dangerous for the administration, particularly with more and more Democrats announcing their presidential campaigns each week.
The state of emergency provides a number of potential benefits for the Trump administration. For one, it means that the President doesn’t have to concede defeat on his campaign promise to build the wall. Additionally, it could help Trump solidify the ‘sticks-to-his-guns’ image that much of his base voters value. And ultimately, if his moves actually led to construction on the wall it would be a profound political victory in the lead up to his 2020 re-election campaign.3
What’s in a Name?
So, a state of emergency. It certainly sounds dramatic. It seems bold if you support the President’s plans and ominous if you oppose them. But, what isit really?
First off, a President declaring a state of emergency is anything but rare. Famously, George W. Bush declared a state of emergency following the 9/11 attacks and then 11 more throughout his term. Bill Clinton declared 17 in eight years and Barack Obama declared 13.4 In fact the United States has continuously been in some form of an emergency state for over 40 years.5
States of emergency give Presidents special powers to act to resolve the crisis. The general idea is that a President can declare a state of emergency in response to some extraordinary problem be it a natural disaster, a terrorist threat, or even a labor dispute. The declaration allows the President to side-step the slow process of legislation in order to affect a solution to a problem as quickly as possible.
The tricky thing about states of emergency is that no one really knows what counts as an emergency and there’s no clear answer on what a President can or cannot do once a state of emergency exists. The determination of whether or not a President can take a certain action is left to the courts. The problem is that that usually means if a Presidential act is judged to be an overreach, the President has already done it.6 Additionally, the Supreme Court has only outright blocked two emergency declarations in history.7
While the actions taken by Presidents during states of emergency usually concern using the military to bolster relief efforts or reallocating emergency funds to help rebuild infrastructure, there are times when presidential actions have genuinely trodden on otherwise sacred rights and liberties.
Perhaps the most infamous example would be Franklin D. Roosevelt’s Executive Order 9066, made under the state of emergency declared following the attacks on Pearl Harbor. E.O. 9066 resulted in the forcible internment of thousands of American citizens who simply happened to be of Japanese descent. That power was later challenged in the Supreme Court, which originally ruled in favor of the President, and was only officially overturned last June, 67 years later.8
There are a number of perspectives on President’s Trump’s emergency declaration. Overall, the emergency declaration is unpopular, with 41% supporting it and 51% opposing.9 However, it is worth nothing those numbers roughly match Trump’s current approval and disapproval rating, respectively.10
Besides general support for the President, those who favor the decision believe the need for a border wall and the state of immigration genuinely constitute an emergency and dismiss the argument that the wall will be ineffectual or that the emergency declaration is an overreach.11
Those who oppose the declaration tend to oppose the President more broadly and the border wall specifically as a waste of money, an outdated tactic, and a remedy to a problem which has been on the decline for decades.12 However, many also argue that the use of an executive order violates Constitutional separation of powers.
In all the argument and debate there remains one undisputable fact: like it or loathe it, President Trump invoking a national emergency is nothing new and has been a go-to tool for Presidents for the better part of a century. But perhaps that’ the real issue here.
- Should Congress develop a specific set of requirements for a state of emergency and should the President be required to seek Congressional approval to declare a state of emergency?
- Should Congress establish a set of specific powers a President is afforded during a state of emergency? If so, what should some of those powers be? If not, why might it be important to keep those power undefined?
- According to the Constitution, only Congress can declare war. The United States has not officially declared war since 1941, yet has been involved in conflicts around the world ever since. Currently, the President does not need Congressional approval for a state of emergency. Assuming a requirement for Congressional approval was put in place do you think it would be effective?
- Wrapped up in the debate surrounding the declaration of emergency are arguments surrounding the exact powers of the President. Some argue that the modern powers of the President far exceed the intention of the Founding Fathers and the spirit of Article II of the Constitution. Others argue that the modern world is so vastly more complicated than the American of 1787 that the extra powers and privileges afforded to the Presidency are necessary for good governance. Where do you stand?
Featured Image Credit: Nicholas Kamm/AFP/Getty Images; from politico.com
 Lind, D. (2019, January 08). Here’s the offer Trump is making to Democrats to end the shutdown. Retrieved from https://www.vox.com/policy-and-politics/2019/1/8/18171913/shutdown-trump-speech-wall-funding
 Mehlman-Orozco, K., Bernstein, D. S., & Glock. (2018, January 20). Whose Fault Is the Shutdown? Retrieved from https://www.politico.com/magazine/story/2018/01/20/who-will-america-blame-216487
 Stewart, E. (2019, February 15). Why Trump thinks a national emergency will get him his border wall. Retrieved from https://www.vox.com/policy-and-politics/2019/1/8/18172749/trump-national-emergency-government-shutdown-wall
 Paul, D. (2019, January 12). Trump may declare a national emergency in the border wall battle. Here’s what that means. Retrieved from https://www.washingtonpost.com/politics/2019/01/12/trump-may-declare-national-emergency-border-wall-battle-heres-what-that-means/?utm_term=.2e7b748c7a34
 Emergencies Without End: A Primer on Federal States of Emergency. (2017, December 12). Retrieved from https://www.lawfareblog.com/emergencies-without-end-primer-federal-states-emergency
 Goitein, E. (2019, February 15). The Alarming Scope of the President’s Emergency Powers. Retrieved from https://www.theatlantic.com/magazine/archive/2019/01/presidential-emergency-powers/576418/
 Paul, D., & Itkowitz, C. (2019, February 15). What exactly is a national emergency? Here’s what that means and what happens next. Retrieved from https://www.washingtonpost.com/politics/2019/02/15/what-exactly-is-national-emergency-heres-what-that-means-what-happens-next/?utm_term=.b305b702c813
 Vesoulis, A., & Simon, A. (2018, June 26). SCOTUS Overturns Japanese Internment Ruling. Retrieved from http://time.com/5322290/trump-travel-ban-japanese-internment/
 Shepard, S. (2019, February 20). Poll: Majority opposes Trump emergency declaration for building border wall. Retrieved from https://www.politico.com/story/2019/02/20/trump-national-emergency-support-poll-1175971
 NateSilver538. (2019, February 23). How Popular Is Donald Trump? Retrieved from https://projects.fivethirtyeight.com/trump-approval-ratings/
 Crenshaw, D. (2019, January 11). Opinion | The Silly Arguments Against a Border Wall. Retrieved from https://www.wsj.com/articles/the-silly-arguments-against-a-border-wall-11547165119
 Poston, D. L. (2019, January 05). Here’s why Trump’s border wall won’t work. Retrieved from https://www.apnews.com/56d7094f0b554925abbd3d81f8ca74c8