A Different Kind of Emergency

President Trump appears to be testing the American political system’s tolerance for soft dictatorship through the cavalier—and potentially illegal—use of presidential emergency powers. On February 15, after months of blustery threats, he declared a national emergency on the southern US border and dispatched the Army Corps of Engineers to administer the construction of a wall by private contractors in order to stop the flow of migrants and drugs into the country from Mexico. Trump issued the executive order because after a thirty-five-day government shutdown over funding for the border wall, Congress had just passed a spending bill that included only a fraction—$1.375 billion—of the $5.7 billion he wanted for the wall and specified that it be constructed of fencing rather than the steel he had demanded. The House and Senate passed a joint resolution to terminate the national emergency declaration, which Trump vetoed. The House was then unable to muster the two-thirds majority required to override the veto.

Legislators have good reason to oppose the construction of a border wall. Trump’s arguments for building one—mainly that illegal immigration is rampant, that illegal immigrants commit more crimes than US citizens, and that the bulk of illicit drugs enter the United States through illegal border crossings—are demonstrably false. Trump himself betrayed his own claims of urgency when he said, in declaring the emergency, “I didn’t need to do this, but I’d rather do it much faster.”

Over strong objections from the House Armed Services Committee, the Defense Department has begun to divert $4.3 billion for the wall from about 150 military construction projects—many of them urgent and long delayed—including a new school and a water treatment facility on stateside military bases and a new National Guard fire station. More US troops are likely to join the three thousand active-duty soldiers and two thousand National Guard members currently deployed at the border. And because the Department of Homeland Security does not have enough facilities in which it can house and oversee all the migrants it has detained, it wants the Pentagon to set up additional ones on US military bases, although some senior Pentagon officials reportedly consider it inappropriate to use the military to handle a civilian issue like immigration.

Congress has delegated to the president broad authority to invoke a national emergency, presidents have done it dozens of times, and the courts have shown little appetite for questioning the president’s emergency powers.¹ But the legal, political, and factual background to Trump’s declaration illuminates its egregiousness. The International Emergency Economic Powers Act, enacted in 1977, has been the basis for about 80 percent of the emergency powers that presidents have exercised. It was designed specifically to allow the president to take economic measures outside the United States in response to an “international emergency.”² Most cases have involved the imposition of sanctions on foreign individuals or groups for terrorist activity, human rights violations, or drug trafficking, which is widely considered well within the power of the executive branch.

The statutory authority that Trump has asserted to build the border wall comes from the National Emergencies Act of 1976, which affords the president considerable leeway in determining what constitutes a national emergency. Even so, no president has ever used his emergency powers to fund a project for which Congress has explicitly refused to appropriate money. House Speaker Nancy Pelosi characterized Trump’s move as a “power grab” and an “end run” around Congress’s constitutional authority over federal spending. Representative Jerrold Nadler of New York, the chairman of the House Judiciary Committee, called it “a gross abuse of power that subverts the key principles laid out in the Constitution.”

Furthermore, the Posse Comitatus Act of 1878 generally prohibits using the US military for domestic law enforcement. It was thus also troubling that in order to justify diverting money for the wall, Trump cited a provision of the 1976 act referencing an emergency “that requires the use of the armed forces.” Even if there were a genuine national emergency, civilian contractors could build a wall, so the involvement of the armed forces—in this case, the Army Corps of Engineers—is not required; but unless Trump can claim it is required, it’s harder for him to make the case for declaring the emergency. His use of the Army Corps of Engineers to oversee the construction of the wall would not strain the prohibition on the domestic use of the military as severely as his deployment, just before the 2018 midterms, of over five thousand troops to support law enforcement efforts on the border. (In that instance, the fig leaf of placing the troops under the direction of the Department of Homeland Security fooled no one.)

The fact remains that, in addition to encroaching on Congress’s power over appropriations, Trump is severely straining existing limitations on using the military in a domestic emergency. In effect, he is turning relatively narrow and exceptional emergency powers into broad authority to use the military in domestic situations. By thereby challenging the separation of powers and exceeding his authority as commander in chief, Trump is continuing his derogation of constitutional governance.

The surprising vote on the joint resolution to terminate the national emergency declaration in the Senate, in which Republicans hold a slim majority, indicated unease even among Republican senators, who had until then largely acquiesced in Trump’s arrogations of power. Majority Leader Mitch McConnell still tepidly supported Trump’s move in order to stay in favor with the White House, though apparently not in principle. He made tortured efforts to avoid forcing a presidential veto, tentatively backing Senator Mike Lee’s proposed ARTICLE ONE Act, which would have limited an emergency to thirty days unless it was approved by both houses of Congress, in hopes of dissuading Republican senators inclined to vote for the termination resolution. But the move was procedurally dubious, and Trump was opposed to the legislation. In the end it was shelved, and twelve Republican senators joined Democrats to register a 59–41 bipartisan rebuke of the president.

A coalition of twenty states, including California and New York, has filed a lawsuit against the administration in federal district court in California on the basis of Trump’s “flagrant disregard of fundamental separation of powers principles engrained in the United States Constitution,” arguing that he has impinged on Congress’s authority over government spending. The American Civil Liberties Union and the Sierra Club have brought a similar suit, while Protect Democracy and the Niskanen Center have filed suit on behalf of El Paso County and the Border Network for Human Rights. On April 5, the House sued the Trump administration in federal district court in Washington on the grounds that the administration unconstitutionally usurped its appropriation authority.

Trump’s proclivity for loose and heedless interpretations of statutes and constitutional provisions has been evident since before he took office. The Mueller Report indicates that only wary staff members—like White House Counsel Don McGahn, White House Chief of Staff John Kelly, and Deputy National Security Advisor K.T. McFarland—saved Trump from increased legal jeopardy by refusing to carry out orders that they considered illegal or legally questionable. But his penchant for using the military to solve law enforcement problems that are clearly civilian in nature points to a potentially even more profound and unsettling challenge that his presidency has raised. The United States has amassed the most formidable array of military forces and intelligence and law enforcement agencies in modern history. Trump’s border policy is a sign of a broader risk that it will be repurposed in ways subversive of the Constitution—in particular, to bypass Congress, increase executive power, and intimidate the public.

Symbolically, at least, the Posse Comitatus Act is the most significant constraint on federal power to use the military in US territory or against US residents. Historically, however, it has sometimes been honored in the breach rather than the observance: that is, presidents have duly acknowledged the principle as a prelude to violating it in circumstances they deem exceptionally exigent. Perhaps the most prominent example, which was based on the act’s forerunner, the Insurrection Act of 1807, was Lincoln’s authorization of military commanders to suspend the writ of habeas corpus and detain suspected subversives during the Civil War. Although Chief Justice Roger Taney, a supporter of slavery who had written the notorious Dred Scott decision, invalidated the president’s action in Ex parte Merryman (1861), the Lincoln administration ignored the ruling. Yet the situation at the outbreak of the Civil War in 1861, when Washington was undefended, was a genuine emergency. Even if the border threats that Trump cited were real, they would not present a comparable peril. In any case, Congress, after highly contentious debate, later authorized Lincoln’s decision for the duration of the war with the Habeas Corpus Suspension Act (1863).

According to the most pertinent Supreme Court precedent—Youngstown Sheet & Tube Co. v. Sawyer (1952), also known as the Steel Seizure Case—Trump does not have the authority to dispatch the army to build a border wall on the pretext of a national emergency. In April 1952 President Truman declared a national emergency to commandeer the plants of several steel companies threatened by labor strikes, in order to ensure that armaments production would continue during the Korean War. He did this even though Congress had empowered the president to enjoin unions from striking under urgent wartime conditions when it passed the Taft-Hartley Act of 1947, over Truman’s veto. The president believed the legislation limited freedom of speech, which may explain why he was reluctant to invoke it. But the Supreme Court voted 6–3 to bar the Truman administration from seizing the steel plants.

Of the six justices in the majority, Justice Hugo Black, who wrote the Court’s opinion, and Justice William O. Douglas held that the president simply had no power to take such an action unless it was explicitly or implicitly authorized by Congress or the Constitution. Justices Harold Burton, Tom Clark, and Felix Frankfurter espoused a more elastic conception of executive power but said that in this case Congress had circumscribed it by prescribing specific remedies in the Taft-Hartley Act and other statutes. Justice Robert Jackson’s celebrated concurrence set out three categories of executive power: that granted by Congress, that neither granted nor denied by Congress, and that posed against the will of Congress. The seizure of the steel mills fell into the third category, he said, in which the president’s “power is at its lowest ebb.”

But at least Truman could cite an actual armed conflict involving thousands of American servicemen fighting thousands of miles away. Trump can only make wholly fictitious claims that convoys of unarmed refugees are full of drug dealers and terrorists. Of course, Truman conceded that only an emergency justified seizing a steel mill, and Trump nominally makes the same concession about building a border wall. Such claims and actions are public and can be debated. Other changes that Trump has made to some of the national security agencies are more insidious, however, and more systemically dangerous.

In particular, Trump’s executive orders expanding the range of immigrants subject to deportation and curtailing Muslim immigration, along with generous additional funding and minimal oversight, have transformed US Immigration and Customs Enforcement (ICE) from a reasonably disciplined agency into an anti-immigrant strike force. More benign and occasional immigration checks have given way to frequent ambushes in which ICE officers lure undocumented immigrants to ICE offices on the pretext of a routine matter and threaten them with detention and deportation if they do not leave the country on their own, sometimes detaining them or fitting them with a GPS-equipped ankle bracelet on the spot. ICE arrests increased 42 percent in the first eight months of Trump’s presidency.

The agency has quietly but unmistakably dropped its policy of prioritizing criminal law enforcement, using the pursuit of criminals as a pretext for sweeping up law-abiding immigrants with an eye to mass deportations. In December 2017 ICE entered into a contract through September 2020 with Thomson Reuters Special Services to access a database maintained by a company called Vigilant Solutions of billions of vehicle location records compiled from closed-circuit traffic enforcement cameras in order to hunt down immigrants, in apparent violation of the laws of some states. It has also allegedly targeted immigration rights advocates by covertly infiltrating their meetings, placing them under surveillance, mining their social media pages, and detaining and sometimes deporting them.³ Such hard-line tactics are in line with the policy approach known as self-deportation, which was promoted by former Kansas secretary of state Kris Kobach and adopted by immigration opponents in the Trump administration like Stephen Miller.⁴ Its aim is to make life for immigrants so unpleasant that many will leave voluntarily.

Trump’s transformation of the immigration enforcement agencies may affect very few ordinary Americans, but opposing immigration has become one of the main elements of his calls to “Make America Great Again.” His prime motivation for building the wall is to fulfill a campaign promise he made to his political base to improve border security. While that base may not exceed 40 percent of voters, Trump’s actions have not merely reinforced its support; they have also harnessed the zeal of civil servants with similar anti-immigration views in ICE and the US Border Patrol, the uniformed enforcement arm of US Customs and Border Protection.

The unions for both agencies, representing over 25,000 employees, endorsed Trump in the 2016 election and proclaimed in a joint statement in 2017 that “morale amongst our agents and officers has increased exponentially” since Trump issued his executive orders on immigration. Chris Crane, president of the National ICE Council, the agency’s primary union, appeared to force the resignation of Acting Director Thomas Homan on the grounds that the restraints he imposed on ICE operations were too “politically correct.” Rank-and-file ICE officers have established their own website “to communicate directly with the American people.” ICE is now agitating for its own intelligence capability and, it seems, field office autonomy. The agency relies heavily on private detention contractors, which in turn strongly support Trump. These actions suggest not an orderly component of the federal bureaucracy but a rogue agency seeking independence from central bureaucratic oversight and accountability. This is one reason why some Democrats have called for ICE’s abolition and discouraged businesses from cooperating with it, and why many cities and states have passed sanctuary laws limiting the extent to which local police can aid in the enforcement of immigration law.

The Border Patrol, for its part, has dismissed humanitarian concerns about the family separations caused by Trump’s policies. A union representative has castigated liberal activists in The Green Line, the service’s weekly podcast, to which Trump was a regular caller during his campaign. Border Patrol sector chiefs comment on immigration issues for Fox News.⁵ As the historian Greg Grandin notes, the Border Patrol’s origins in the 1920s were overtly racist, and it soon “turned…into a vanguard of race vigilantism” controlled by white supremacists.⁶ While the agency is not that extreme today, the Trump administration appears intent on encouraging its politicization.

Trump’s recent gutting of the Department of Homeland Security, including the dismissal of Secretary of Homeland Security Kirstjen Nielsen, appears to have been a result of his anger about the obstacles his immigration initiatives have encountered in Congress and the courts, his dismay over the inability of the DHS to stem the flow of Central American migrants as attempted illegal border crossings spiked in February, and his frustration with officials who recognize the legal limitations on their authority and have refused his increasingly urgent demands to exceed them. Customs and Border Protection’s controversial teargassing of migrants on the California–Mexico border in January momentarily strengthened Trump’s support for Nielsen. Thereafter she looked very much like a Trump loyalist, defending family separation and other harsh practices. Her obeisance wasn’t enough for Trump and Miller. Replacement appointees are likely to be under heavy pressure to deliver results regardless of any legal restrictions.

Trump is not only trying to cultivate a loyal official militia. When he rails against an imagined liberal “deep state,” he is stirring up extreme right-wing elements of his base. His administration, mainly the Department of Homeland Security, is systematically overemphasizing the threat of international Islamist terrorism, which has diminished somewhat, and downplaying that of right-wing terrorism, which is on the rise domestically and which the massacre in Christchurch, New Zealand, has confirmed is now a transnational phenomenon. Former Department of Homeland Security officials have complained about a pattern of neglect of right-wing extremism in the Trump administration, decried Trump’s use of racially loaded language, and described the president as “actively supporting and amplifying” far-right views.⁷

Trump is also seeking to secure his expansion of executive power by appointing judges who argue for fewer restraints on it (Justices Neil Gorsuch and Brett Kavanaugh are the most obvious examples) and by installing an attorney general with similar views: William Barr considers the president’s law enforcement power “plenary” and therefore “illimitable.” In 2017 Trump directed Gary Cohn, then the director of the National Economic Council at the White House, to pressure the Justice Department to block AT&T’s acquisition of Time Warner, apparently in order to weaken CNN, a Time Warner subsidiary and a news organization he singularly dislikes.⁸ He has made it clear—for instance, in his public excoriation of former attorney general Jeff Sessions for recusing himself from the Russia investigation—that he believes the department should function as an advocate for the president rather than an independent servant of the American people.

Trump has cast aspersions on CIA assessments that do not support his policies and biases, marginalizing its responsibility for informing US national security policy. He has portrayed most of the news media as “the enemy of the American people,” forged a propagandistic relationship with the one major network that supports his views, Fox News, and mischaracterized the Mueller Report as proclaiming his “complete and total exoneration.” These actions seem aimed at safeguarding not a democratic state but rather Trump and his administration.

Following Trump’s veto of the resolution to terminate the border emergency declaration, Senate Republicans are considering new bipartisan legislation to rein in the president’s statutory emergency powers. Meanwhile, Trump is publicly brandishing his veto as an affirmation of his power to thwart Congress and protect the public. It is possible that he will stop there, recognizing that Senate Republicans are beginning to grow intolerant of his steamrolling of the legislative branch. But it seems just as likely that he will feel vindicated and again dare them to say no. He has already included $8.6 billion for a border wall in the White House’s 2020 budget proposal, indicating his intent to continue leveraging a domestic issue he has effectively militarized. Getting veto-proof majorities to oppose Trump’s policies is still unlikely in a Congress whose Republican members have mostly been unwilling to challenge him, which also makes impeachment unlikely. In this light, the courts may be the best chance of restraining him—at least until the next election.

Michael Cohen, Trump’s former attorney and fixer, in congressional testimony in late February expressed his fear that Trump, if defeated in 2020, would not allow a peaceful transition of power. In reaction, Trump gave a two-hour speech on March 2 at the Conservative Political Action Conference in which, among many other caustic statements, he declared that members of Congress who oppose his policies “hate our country.” And as he prepared to veto Congress’s resolution to terminate the border emergency declaration, he dismissed the legislative branch as a delusional, unpatriotic inconvenience, remarking that “the only emergency Congress voted to revoke was the one to protect our own country.” The integrity of the United States’ constitutional democracy remains at risk.

—April 24, 2019