The degree to which President Donald J. Trump does not understand the powers of the presidency under the Constitution is no longer shocking. Several times during the recent government shutdown, President Trump has threatened to declare a “national emergency” on the nation’s southern border which, according to him, would allow the president to reallocate Defense Department funds to the purpose of building a wall.
Besides the fact that it would be hard to justify the situation on our southern border as a national emergency, there are no statutory nor constitutional grounds for the reallocation of funding under these conditions.
On the general principle that the Constitution contains within itself the tools for self-preservation, presidents have in the past taken extraordinary measures to, as their oath of office puts it, “preserve, protect and defend the Constitution of the United States.”
Lincoln’s Actions as Precedent?
In 1861, on his own authority, President Abraham Lincoln undertook a series of actions intended to stem the escalating revolution of the Southern States. He took these actions under the Constitutional authority of the Chief Executive and the Commander-in-Chief. Also, as a practical matter, he had to act on his own authority as Congress was not in session at the time.
These actions included but were not limited to the obligation of the expenditure of funds, the suspension of the Writ of Habeas Corpus, and the disruption of commerce to and from the rebellious states including the seizure of goods and the intercept of the mails. These measures were later endorsed by Congress and upheld in the Courts.
Many presidents have since tried to invoke Lincoln to justify unilateral actions in support of one cause or another. But what makes the Lincoln example unique is the gravity of the threat and the fact that Congress was not in session at the time. Trump cannot claim either. The fact that Congress is in session and the Courts are available to settle disputes, means that the president has no justification to go outside the law.
Lack of Consensus is Not a National Emergency
A number of years ago I wrote Extraordinary Measures, a book in which I argued that the prerogative or emergency powers of government are limited by what I called “the principle of process.” This means that if the ordinary procedures of government are available to resolve disputes, they must be allowed to work.
As of now, Congress is in session, the Courts are open, we’ve just had an orderly national election, and we are not under threat of foreign attack. And, no, it is not enough that Congress has failed to act. For the failure to act is, in and of itself, a decision. A lack of consensus cannot and should not be construed as a national emergency but as part of the process for working things out. President Trump cannot act simply because he cannot get his way.
How Will Shut Down Play Out?
I cannot predict how this confrontation will play itself out. But if I were a betting man, I would bet that unless the president and Congress come to an agreement, the Courts will rule that Federal employees cannot be made to work without pay for extended periods of time. At that point, essential workers will walk off their jobs and most immediately air traffic will be grounded. The president and Congress will then settle within the hour.
In the meantime, the president has no justification for reallocating appropriated funds. Those funds are purposed under the law and are obligated to be spent in the manner for which they were intended. If Trump refuses to spend those funds or reallocates those funds, he will be injuncted by the Courts. And if he refuses to abide the Court’s decision, he will be held in contempt. If he does not then comply, he should be impeached.