Trump’s Border Wall Emergency, Rewriting The National Emergencies Act Of 1975 To Confront Executive Overreach
US President Donald Trump, who routinely criticized former President Barack Obama for his use of Executive Orders and executive overreach, has made a habit of overstepping Constitutional boundaries. Like his predecessor, Trump has stretched the powers of the Executive Branch to circumvent legislative barriers in order to implement a public policy of his choosing. Recognizing Trump’s liberal use of Executive Orders alone, the President has even avoided legitimate Congressional checks on his power out of convenience whenever his own party held majorities in both chambers of the Legislative Branch. By declaring a national emergency in order to divert funding to his proposed border wall, after Congress declined to fully fund the project, the President has both abused his emergency powers and engaged in a blatant act of Executive overreach.
Without regard to the President’s political affliction and likability, it is an abuse of power that cannot tolerated. After all, the only things ensuring the American People remain free of government oppression are the prohibitions the US Constitution places on government officials and the willingness of the American People to enforce those provisions. Under the National Emergencies Act of 1975, the President of the United States has declared a national emergency 58 times, the current President’s decision is, therefore, not inherently controversial. Trump’s justification for the national emergency is, however, what raise serious concerns of Executive overreach. Not only is Trump’s claim that a relatively small buildup of economic migrants and refugees awaiting lawful entry into the US constitutes a national emergency extremely dubious, especially since he delayed the declaration until after a prolonged government shutdown and debate while his proposed response, i.e. build a wall, will not immediately resolve the emergency.
Recognizing 31 national emergencies remain in effect from past Presidents, it is clear there are no meaningful limits on the power. Mr. Trump is not the only POTUS to stretch the limits of Executive power. Trump is also not the only one who has used dubious rationales to declare a national emergency. What makes Trump’s precedence dangerous is that he is overtly fabricating a national emergency out of routine security issues in order to fulfill a political objective and campaign promise. In other words, he is politicizing executive overreach and expanding the ability of future Presidents to simply ignore the constraints of the Legislative Branch due to a policy disagreement with Congress. Quite frankly, Congress was actually doing its jobs when it debated border security. Just because the Legislative Branch simply declined to accept the recommendation of the President does not give the President justification to circumvent Congress. If anything, it is an example of how America’s Founding Father expected the Legislative Branch to reign in the Executive Branch.
Although the National Emergencies Act of 1975 was created to reign in Executive overreach, it obviously did not go far enough. Trump’s national emergency will likely be overturned by the judicatory, but it showcases the need to redefine limits on government power. A large part of the problem is that Legislators have a habit of crafting legislation with loose language that can be broadly interpreted and misused. The reason most legal documents utilize highly detailed and cumbersome writing is that they are ensuring only one interpretation is possible. Not only do members of Congress often fail to do this, they also fail to be detailed in their policy prescriptions. In the case of the National Emergencies Act of 1975, Congress required the President to justify his actions, but never defined what constitutes a national emergency and how long a national emergency can last. Because these limits are absent, the President has simply had to fabricate a handful of publicly acceptable rationales to declare a national emergency. If not for the widespread distaste of Trump and his policy, his declaration would have likely gone unchallenged.
For the vast majority of people, an emergency is something that requires an immediate response. By giving the President the power to declare a national emergency, he is able to act when Congress does not have the time to react. The standard legal threshold of an imminent threat is, therefore, the exact prohibition that should be placed on the President’s emergency powers by the Courts and the Legislature. Because any public policy recourse that fails to resolve an imminent threat within the time-frame it would take the Legislative Branch to debate the need to respond to a situation and devise a solution, Congress needs to require itself to debate the issues driving any national emergency and periodically certify their support for the President’s resource should they find themselves deadlocked. Unfortunately, the failure of Congress to respond to issues and crisis encourages Executive overreach, but the abuse of emergency powers does nothing to hold Congress accountable. It simply affords the President greater power to abuse for his own agenda.
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